CNJP and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2023] AATA 288

CNJP and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 288 (2 March 2023)

ReviewNumber:         2021/2352

Division:GENERAL DIVISION

File Number:          2021/2352

Re:CNJP

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member Theodore Tavoularis

Date:2 March 2023

Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision made by the delegate of the Respondent dated 12 April 2021 and substitutes it with a decision to revoke the cancellation of the Applicant’s visa.

.....................................................

Senior Member Theodore Tavoularis

Catchwords

MIGRATION – Remittal- Non-revocation of mandatory cancellation of a Class XB Subclass 204 Woman at risk Visa –where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 – decision under review set aside and substituted.

Legislation

Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Family Law Act 1975 (Cth)
Migration Act 1958 (Cth)

Cases

Ali v Minister for Home Affairs (2020) 278 FCR 627
Minister for Home Affairs v Buadromo (2018) FCR 320
Minister for Home Affairs v Omar (2019) 272 FCR 589
Plaintiff M1 v Minister for Home Affairs (2022) 400 ALR 417
PNLB v Minister for Immigration and Border Protection [2018] AATA 162

S270/2019 v Minister for Immigration and Border Protection (2020) 383 ALR 194

Secondary Materials

Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021)

REASONS FOR DECISION

Senior Member Theodore Tavoularis

2 March 2023

Introduction and background

1. CNJP (‘the Applicant’) is a 29-year-old male, born in Sudan (now South Sudan) in January 1994. He arrived in Australia on 19 September 2006. His visa status in Australia derives from a Woman at Risk (Class XB)(Subclass 204) visa (‘the visa’) held by this mother. His movement history confirms he has not departed Australia since his arrival.[1]

   [1] R1, p 91.

2. He has compiled a not-insignificant history of offending in Australia. As a juvenile he was convicted of four offences, all of which were dealt with by non-custodial sentences. As an adult he has convictions for 37 offences that attracted cumulative total head custodial terms of three and three quarter years over a period of six years. His offending history can be summarised as follows:

Court	Date	Offence	Result
Magistrates Court, QLD	July 2019	Contravention of domestic violence order (x2)	On all charges Conviction recorded Sentenced imprisonment: 6 months
		Unlawful possession of suspected stolen property Stealing Possess property suspected of having been used in connection with the commission of a drug offence	On all charges conviction recorded Probation period: 18 months
Magistrates Court, QLD	February 2019	Obstruct police officer (x2)	On all charges conviction recorded Sentenced imprisonment: 4 months Concurrent
		Assaults occasioning bodily harm	Conviction recorded Sentenced imprisonment: 12 months Concurrent
		Wilful damage (x3)	On all charges conviction recorded Sentenced imprisonment: 6 months
		Possess utensils or pipes etc for use (x2) Possessing anything used in the commission of crime defined in part 2 Possession of a knife in a public place or a school Trespass – entering or remaining in dwelling or yard Unlawful possession of suspected stolen property	On all charges conviction recorded Sentenced imprisonment: 3 months Concurrent
		Possessing dangerous drugs (x2)	On all charges conviction recorded Sentenced imprisonment: 9 months Concurrent
		Possession of a knife in a public place or a school	Conviction recorded Fined: $500.00
		Contravene direction or requirement (x2)	On all charges conviction recorded Not further punished
Magistrates Court, QLD	August 2019	Failure to appear in accordance with undertaking	Conviction recorded Fined: $250.00
		Failure to appear in accordance with undertaking	Conviction recorded fined: $250.00
		Failure to appear in accordance with undertaking	Conviction recorded Fined: $200.00
Magistrates Court, QLD	June 2018	Possess utensils or pipes etc that had been used	Conviction recorded Fined: $300.00
		Contravene direction or requirement	No conviction recorded Fined: $300.00
Magistrates Court, QLD	May 2018	Receiving tainted property	Conviction recorded Fined: $300.00
Magistrates Court, QLD	January 2018	Possess property suspected of having been used in connection with the commission of a drug offence	No conviction recorded Fined: $200.00
Magistrates Court, QLD	September 2017	Unlawful possession of controlled drug	Conviction recorded Fined: $150.00
		Possess utensils or pipes etc for use	Conviction recorded Fined: $150.00
		Unlawful possession of suspected stolen property	Conviction recorded Fined: $300.00
Magistrates Court, QLD	December 2015	Contravention of release conditions Assaults occasioning bodily harm	On all charges conviction recorded Sentenced imprisonment: 6 months To be suspended for: 18 months Concurrent
Magistrates Court, QLD	September 2015	Assault or obstruct police officer	No conviction recorded Fined: $300.00
Magistrates Court, QLD	September 2014	Common assault	No conviction recorded Fined: $600.00
Magistrates Court, QLD	October 2013	Possess utensils or pipes etc for use	No conviction recorded Recognisance: $150.00

1. On 23 May 2019 while the Applicant was serving a custodial sentence, delegate of the Minister (‘the Respondent’) mandatorily cancelled his visa pursuant to s 501(3A) of the Migration Act (1958) (Cth) (‘the Act’) because he did not pass the character test and he was serving a full-time custodial sentence.

2. On 1 July 2019 the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (‘revocation request’).[2] Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act which provides:

   The Minister may revoke the original decision if:

   (a)the person makes representations in accordance with the invitation; and

   (b)the Minister is satisfied:

   (i)    that the person passes the character test (as defined by section 501); or

   (ii)    that there is another reason why the original decision should be revoked.

   [2] G1, p 80.

3. On 12 April 2021 the Respondent decided not to revoke the cancellation. On 18 April 2021 the Applicant lodged an application in this Tribunal for review of that decision. The Tribunal has jurisdiction to review the decision pursuant to s 500(1)(ba) of the Act.

4. On 5 July 2021 this Tribunal (constituted differently) affirmed the reviewable decision. There followed an appeal for judicial review culminating in the Full Court of the Federal Court’s remittal of this matter pursuant to its decision made on 11 July 2022.[3]

   [3] G1, p 721.

5. The remittal Hearing proceeded before me on 12 and 13 December 2022. The Hearing received oral evidence from:

   ·the Applicant;

   ·his mother (who will be referred to as ‘the Applicant’s Mother’ in these Reasons);

   ·his first sister (‘Sister A’);

   ·his second sister (‘Sister K’);

   ·the Applicant’s first brother (‘Brother D’);

   ·the Applicant’s second brother (‘Brother B’);

   ·the Applicant’s third brother (‘Brother A’)

   ·Dr Emily Kwok (clinical and forensic psychologist);

   ·Ms Ellise McKenzie (counsellor with Queensland Program of Assistance to Survivors of Torture and Trauma ‘QPASTT’);

   ·Mr AH, Narcotics Anonymous sponsor of the Applicant.

6. There was also written evidence before the Tribunal. The totality of that material was consolidated into an agreed Exhibit List, a true a correct copy of which is attached to these Reasons and marked ‘Annexure A’. The admission of two items of evidence were the subject of a preliminary contest between the parties. The first related to the admissibility of certain CCTV footage of something that apparently occurred at an immigration detention facility.[4] The second item related to the further statement of Ms Ellise McKenzie made on 8 December 2022.[5]

   [4] RR2.

   [5] A31.

7. Following ventilation of the arguments for and against the Tribunal’s receipt of both of these items into evidence, I ruled that both items should be included in the evidence before the Tribunal for the purposes of this Hearing.[6] Save and except for these two items (which, in any event, were received into evidence) the parties otherwise agreed to the Exhibit List attached to these Reasons.

   [6] In respect of the CCTV footage, see my ruling at Transcript, p 3, lines 28-46; p 4, lines 1-11; in respect of my ruling on the admissibility of Ms McKenzie’s statement, see Transcript, p 6, lines 28-47; p 7, lines 1-27.

   legislative framework

8. Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:

   The Minister may revoke the original decision if:

   (a)the person makes representations in accordance with the invitation; and

   (b)the Minister is satisfied:

   (i)that the person passes the character test (as defined by section 501); or

   (ii)that there is another reason why the original decision should be revoked.

9. I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised.

10. There are therefore two issues presently before the Tribunal:

    (a)whether the Applicant passes the character test; and

    (b)whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.

    Does the Applicant pass the Character Test?

11. The parties are ad idem that the Applicant does not pass the character test.[7] Accordingly, it can be safely found that this Applicant does have a ‘substantial criminal record’ due to his being sentenced to a term of imprisonment of 12 months imposed on him on 6 February 2019. He does not pass the character test and cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.

    [7] A1, pp 4-5, paras [19]-[20]; see also, RR1, p 5, para [21].

    Is there another reason for the revocation of the cancellation of the Applicant’s visa?

12. In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) of the Act to comply with any directions made under the Act. In this case, Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘Direction’ or ‘Direction 90’) has application.[8]

    [8] Direction No 90 commenced on 15 April 2021. It replaces Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.

13. The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:

    Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.[9]

    [9] Direction No 90, para [6]. See also Direction, para [4(1)] which provides that a, “decision-maker” includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.

    The principles in paragraph 5.2

14. Paragraph 5.2 of the Direction is designed to, ‘provide a framework within which decision-makers should approach their task’ under s 501 or 501CA of the Act (as the case may be). Summarised where appropriate, the principles are:

    (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.

    (2)Non-citizens who engage in, or have engaged in, criminal or other serious conduct should expect to be denied the privilege of coming to, or forfeit the privilege of staying in, Australia.

    (3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they have engaged in conduct in Australia or elsewhere that raises serious character concerns (regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community).

    (4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

    (5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

    The Primary and Other Considerations

15. Paragraphs 8 and 9 of the Direction respectively stipulate four ‘Primary Considerations’, and four ‘Other Considerations’ by which I must be guided in making my decision.

16. The Primary Considerations I must take into account are:

    ‘(1) protection of the Australian community from criminal or other serious conduct;

    (2) whether the conduct engaged in constituted family violence;

    (3) the best interests of minor children in Australia;

    (4) expectations of the Australian community.’[10]

    [10] Direction No 90, para [8].

17. The Other Considerations which, where relevant, I must take into account, ‘include but are not limited to’:

    ‘a) international non-refoulement obligations;

    b) extent of impediments if removed;

    c) impact on victims;

    d) links to the Australian community, including:

    i) strength, nature and duration of ties to Australia;

    ii) impact on Australian business interests’[11]

    [11] Ibid, para [9(1)].

18. Paragraph 7 of the Direction also provides guidance as to how to take into account each Primary and Other Consideration. Briefly summarised, the Direction instructs decision-makers that:

    ‘(1) Information from independent and authoritative sources should be given appropriate weight;

    (2) Primary Considerations should “generally” be given greater weight than Other Considerations; and

    (3) One or more Primary Considerations may outweigh other Primary Considerations.’

19. I will now turn to addressing the abovementioned Primary and Other Considerations.

    Primary Consideration 1 – Protection Of The Australian Community

20. In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to

    keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by

    
    

    non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.

21. In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:

    (a)the nature and seriousness of the non-citizen’s conduct to date; and

    (b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

22. I will consider each in turn.

    The nature and seriousness of the non-citizen’s conduct to date

23. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:

    (a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

    (i)violent and/or sexual crimes;

    (ii)crimes of a violent nature against women or children, regardless of the sentence imposed;

    (iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

    (b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

    (i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

    (ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

    (iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));

    (iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;

    (c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;

    (d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;

    (e)the cumulative effect of repeated offending;

    (f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

    (g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).

    Paragraph 8.1.1(1)(a)

24. As an initial observation, it is necessary to note that the chapeau to paragraph 8.1.1(1) (a) stipulates that where an Applicant has convictions for any offences falling within the categories described at sub-paragraphs (i), (ii) or (iii), the Australian Government and the Australian community views that conduct ‘very seriously’.

25. The Applicant’s criminal history does, without question, invoke the auspices of the sub-paragraph structure of paragraph 8.1.1(1)(a)(ii) of the Direction. He has, respectively, convictions for violent crimes against women on 24 September 2014,[12] 2 December 2015[13] and 6 February 2019.[14]

    [12] G1, p 51.

    [13] Ibid.

    [14] Ibid, p 49.

1. Paragraph 8.1.1(1)(iii) contemplates acts of ‘family violence’ referrable to a non-citizen’s history of offending. Although the three abovementioned convictions for violent offending resulted from violence perpetrated against female victims, it cannot be definitively found- for the specific purposes of this Primary Consideration- that this conduct was committed in the context of ‘family violence’. I will deal with this conduct later in these Reasons as part of my consideration of Primary Consideration 2 which is specifically concerned with family violence.

2. For present purposes it suffices to say (and find) that the Applicant’s violent conduct against women squarely falls within the auspices of paragraph 8.1.1(1)(a)(ii) of the Direction. As such, the Direction facilitates a finding that his unlawful conduct in this country has been ‘very serious’.

   Paragraph 8.1.1(1)(b)

3. There is no evidence before the Tribunal that the Applicant has been convicted of any conduct to causing a person/victim to become involved in a forced marriage. Nor is there any report or summary of such conduct that did not lead to any conviction. Paragraph 8.1.1(1)(b)(i) of the Direction is not relevant to the instant determination.

4. The Applicant has at least five convictions for either contravening a lawful direction or requirement or obstructing a police officer in the course of their duty. This conduct squarely falls within the auspices of paragraph 8.1.1(1)(b)(ii) and must, pursuant to the language of the chapeau to paragraph 8.1.1(1)(b) of the Direction be found to be ‘serious’.

5. There is nothing in the material pointing to the Applicant’s commission of ‘any conduct that forms the basis for a finding that [the Applicant] does not pass the character test that is dependent on the decision-maker’s opinion’.[15] Neither party is propounding any such conduct and I am satisfied that this particular paragraph of the Direction is not relevant to the instant determination.

   [15] Paragraph 8.1.1(1)(b)(iii) of the Direction.

6. The material has nothing definitive to say about the Applicant’s commission of any offences while in immigration detention.[16] There is CCTV footage in the material deriving from an incident involving the Applicant while in immigration detention in April 2020. The footage apparently records the Applicant placing a package under a table in the detention centre. The package was subsequently swabbed and returned a positive reading to methamphetamine.

   [16] Paragraph 8.1.1(1)(b)(iv) of the Direction.

7. I am cautious of finding that this conduct falls within the auspices of paragraph 8.1.1(1)(b)(iv) of the Direction. This caution derives from the language of the sub-paragraph which requires the non-citizen to be responsible for ‘a crime committed while…in immigration detention…’. Here, the prosecution for any asserted criminality arising from this incident referrable to the Applicant was discontinued. The Applicant has not, therefore, committed ‘a crime’ while in immigration detention. Apparently being recorded for doing something allegedly unlawful does not, without a conviction, amount to ‘a crime’. This sub-paragraph cannot be safely applied to the instant facts.

8. To whatever extent there may have been any incident involving the Applicant in immigration detention, this particular paragraph of the Direction, to my mind, requires graduation of that incident to the commission of an actual offence for which the Applicant was dealt with by a sentencing court of competent jurisdiction. This paragraph 8.1.1(1)(b)(iv) is not relevant to any assessment of the nature and seriousness of the Applicant’s offending.

   Paragraph 8.1.1(1)(c)

9. This paragraph precludes me from taking into account sentences imposed on this Applicant for: (1) crimes of a violent nature against women or children;[17] (2) acts of family violence;[18] and (3) any sentence the Applicant may have received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.[19]

   [17] Paragraph 8.1.1(1)(c)(ii) of the Direction.

   [18] Paragraph 8.1.1(1)(c)(iii) of the Direction.

   [19] Paragraph 8.1.1(1)(b)(i) of the Direction.

10. Even not taking into account the precluded sentences, the Applicant nevertheless has a plethora of other sentences referrable to this particular paragraph. Those sentences may be summarised as follows:

    ·Fines: there are at least 13 instances in the criminal history where sentencing courts have imposed fines on the Applicant. They have ranged from $150 to $600;

    ·Restitution: there is one order for restitution made in February 2019 in the sum of $611.50;

    ·Probation: in July 2019, a probation order for an operative period of 18 months was imposed on the Applicant;

    ·Custodial sentences (for non-precluded offending): sentencing courts have imposed the following custodial terms:

    oFebruary 2019: 9 months;

    oFebruary 2019: 3 months;

    oFebruary 2019: 6 months;

    oFebruary 2019: 4 months.

11. It is well-established that imposition of a custodial term upon an offender is seen as the last resort in the sentencing hierarchy. The imposition of a custodial sentencing option must be viewed as a reflection of the objective seriousness of the offending sought to be punished.[20] The Applicant’s sentences for non-precluding offending speak to the seriousness of the offending involved. The abovementioned fines were imposed for offending in the realm of (1) offences against the person; (2) offences against police officers in the course of their duty; (3) contravention of lawfully made instruments compelling the Applicant from doing or refraining from doing something; (4) drug-related offending; (5) property offending; and (6) offending in relation to a weapon.

    [20] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [20]-[22].

12. Taken in totality, I am satisfied that sentences imposed upon this Applicant for non-precluded offending clearly and obviously point to a finding that his unlawful conduct in this country has been, at least ‘serious’, more likely ‘very serious’.

    Paragraph 8.1.1(1)(d)

13. This Applicant has, in sentencing terms, a criminal history that runs from October 2013 to July 2019. This is a pattern of offending that runs across about six years. He has convictions for the commission of some 37 offences that were dealt with at 12 separate sentencing episodes. On average, he therefore has convictions for the commission of in excess of six offences per annum. He has appeared before a sentencing court, on average, twice a year. I am satisfied that the Applicant has been a frequent offender.

14. Is there a trend of increasing seriousness to be gleaned from the offending history? I think there is. It is helpful to divide the Applicant’s criminal history into two parts. The first part (in sentencing terms) could be said to run from October 2013 until August 2018. During this period the Applicant has convictions for 15 offences. This offending occurred in the realms of illicit drugs, offending against police officers, property offences and breaches of lawfully made instruments compelling the Applicant to do or refrain from doing something. All of this offending was punished by either fines or other sentencing modalities, including a wholly suspended term of imprisonment.

15. The second part of the history runs (in sentencing terms) from February 2019 to July 2019. During this phase, the predominant sentencing modality was the imposition of custodial terms. It includes at least two offences in relation to possession of an unlawful weapon, further drug offences, further property offences and further breaches of lawfully made instruments compelling the Applicant to do or refrain from doing something. However, and significantly, this phase of the offending includes the very serious violent offences against a woman which saw the Applicant receive a head custodial term of  12 months.

16. Another way of viewing the Applicant’s offending history (in terms of ascertaining any increasing trend of seriousness) is to suggest (and find) that it has been serious virtually from its beginning. He has a conviction for violent offending against a woman as early as December 2015, for example. I am satisfied that for the purposes of this paragraph 8.1.1(1)(d) that the Applicant’s offending has been frequent and that it otherwise betrays a trend of increasing seriousness. This paragraph therefore militates in favour of a finding that the Applicant’s offending has been very serious.

    Paragraph 8.1.1(1)(e)

17. This paragraph compels a decision maker to identify any cumulative effect or effects of a non-citizen’s repeated offending. There are several such cumulative effects redolent in the Applicant’s history. First, the Applicant’s violent offending against female victims has been truly and utterly deplorable. The violence has been ill-considered, wanton and dangerous. The factual circumstances of his respective convictions for the infliction of very serious violence against females makes for sobering reading and is incapable of explanation or amelioration. The Applicant was in the Australian community for the best part of a decade before his commission of a violent offence against a woman.

18. He would surely have been made aware of public campaigns warning of the dangers of violent conduct against women. He would no doubt have received a warning about very serious violent conduct upon women when first sentenced for such offending in September 2014. Yet he proceeded to commit at least two further such violent offences against women for which he was convicted in December 2015 and February 2019. The cumulative effect to be taken from this element of the Applicant’s offending history is that he does not seem to respect the sanctity and importance of not seeking a violent outcome against a female victim. He has thought nothing of very violently imposing himself in circumstances where he thinks he may be in a state of disagreement with a female.

19. Second, the Applicant has a concerning history of convictions for offending relating to illicit drugs whether it be in the realm of drug-related paraphernalia, actual possession of illicit drugs and being in possession of property allegedly involved in the commission of a drug offence. I will refer to this conduct later in these reasons when assessing the Applicant’s recidivist risk. But to my mind, the number of drug convictions currently appearing in the Applicant’s offending history is troubling from the point of view of this Tribunal being satisfied that the Applicant has overcome a predisposition to abuse those substances and to very violently offend.

20. Third, the Applicant has multiple convictions for either refusing to follow the requirements of lawful authority, or even more so seriously, directly challenging that authority by obstructive conduct towards police officers. This conduct is indicative of a person who has failed to develop a sufficient measure of respect for the lawful authority governing the Australian community into which that person now seeks re-admission. He has a significant number of ‘breach’ convictions involving (1) failure to follow the terms of an undertaking to appear; (2) contravention of a domestic violence order; and (3) contravention of release conditions.

21. Another dimension of that cumulative effect of the Applicant’s offending history derives from his traffic history, a copy of which appears in the material.[21] At first blush, the traffic history is relatively unremarkable. Viewed through the lens of its length, the traffic history contains both a frequency and a not-insignificant level of seriousness. In a traffic history of less than three years the Applicant compiled eight demerit point offences. But he also incurred (1) two demerit point suspensions of his driver licence plus (2) he committed the offence of unlicenced driving.

    [21] G1, pp 374-375.

22. Fourth, the Applicant has a number of convictions for property offending ranging from (1) possession of property suspected of being stolen; (2) receiving tainted property; (3) unlawful possession of suspected stolen property; and (4) the wilful damage of other people’s property. Such conduct is demonstrative of a person who does not respect the rights of others to enjoy the property they have worked hard to acquire. It is further indicative of a person who apparently does not understand that nature of another person’s right to own and enjoy one’s property to the exclusion of all others.

23. Fifth, the Applicant’s offending has consumed more than its fair share of the community’s law enforcement, custodial and judicial sentencing resources. It is a history that has been intensely committed across a barely six year timeframe. It is not a stretch of the evidence to suggest (and find) that the community’s resources in the area of healthcare would have also been consumed in the care and management of whatever injuries were occasioned to its female victims.

24. These fives cumulative effects of this Applicant’s repeated offending safely lead me to a finding that the totality of his offending has been of a ‘very serious’ nature.

    Paragraph 8.1.1(1)(f)

25. The most usual paradigm in which this paragraph arises involves a non-citizen’s incorrect completion of an incoming passenger card whereby the ‘No’ answer is ticked on that card in answer to a question of whether the non-citizen has any convictions at the time the card must be completed. As mentioned earlier, the Applicant arrived in Australia almost 17 years ago and has never left here since his arrival. He has therefore never had to complete an incoming passenger card (or equivalent).

26. To the best of my understanding of the material, there is no other incident of the Applicant providing false or misleading information to the Respondent’s department. This paragraph can be safely put to one side and rendered irrelevant for the purposes of the instant determination.

    Paragraph 8.1.1(1)(g)

27. The Respondent’s Statement of Facts, Issues and Contentions (‘SFIC’) contains no reference to any factual element involving the provision of any written warning to the Applicant of the type contemplated by this paragraph. I have also checked the material in the G-documents and cannot locate any such warning. This paragraph can be safely put to one side and rendered irrelevant for the purposes of the instant determination.

    Conclusion about the nature and seriousness of the Applicant’s conduct

28. Upon application of each of the relevant paragraphs appearing at 8.1.1(1) of the Direction, I am safely lead to the conclusion (and finding) that the totality of this Applicant’s unlawful conduct in this country can be readily characterised as ‘very serious’.

    The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

29. Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being repeated may be unacceptable.

30. Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:

    (a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;

    (b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

    (i)information and evidence on the risk of the non-citizen re-offending; and

    (ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and

    (c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

    The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct

31. Paragraph 8.1.2(2)(a) compels an assessment of the nature of the harm to individuals or the Australian community in the event of this Applicant engaging in further criminal or other serious conduct. In my view, it can be safely concluded that:

    ·this Applicant has multiple convictions for crimes of violence against women. Even the most objective and favourable reading of the factual circumstances of that offending does not displace the finding that were he to repeat it, its victims would suffer palpable physical and psychological harm. It is not at all a stretch of the evidence that were he to re-offend so violently against a female victim, the consequences could quite conceivably be catastrophic or could otherwise result in the infliction of permanent injury on a victim;

    ·this Applicant has multiple convictions for property offences. The unlawful taking or destruction of another’s property is not just a transgression against those items of property, it is also a fundamental attack on the right of individuals in the Australian community to acquire and enjoy their property to the exclusion of all others. All too often, property offenders refer to a victim being insured or that the offender was compelled to pay restitution. Those arguments are vacuous because the insurance status of the property owner so harmed is none of the business of the offender. As well, we all too often see property offenders fail to meet orders for restitution and/or compensation;

    ·the Applicant has a likewise significant number of offences in the realm of illicit drug offending. As alluded to earlier, this offending most usually derives from unresolved addiction/abuse issues with such substances. The Applicant’s offending is not redolent of an offender who involves himself in drugs for any commercially-derived purpose. His drug offending is the drug offending of an addict not a trafficker. Were he to resume this type of offending it would again represent a risk of committing other offences against the person, against the property of others and against law enforcement officers going about their business;

    ·were the Applicant to again commit offences involving repeated breaches of orders, the community’s resources would again be consumed by action being taken by the law enforcement apparatus to enforce the terms of those orders and by the judicial sentencing apparatus to punish those breaches.

    Conclusion about the nature and seriousness of the Applicant’s conduct

32. I am therefore satisfied (and I find) that were this Applicant to re-commit offences of the type he has committed thus far, the harm to individuals and/or the Australian community would be very serious and would likely involve physical, psychological and materially quantifiable economic harm to its victims including, quite conceivably, harm to a catastrophic level. The community’s resources would also be unduly consumed in having to regulate and punish such further offending.

33. The conduct comprising the Applicant’s involvement in very serious and physically violent offending against women is offending that has resulted in such significant harm to its victims that this Tribunal is lead to conclude that the Australian community should not be reasonably expected to tolerate the re-commission of such conduct. The Applicant’s failure to observe the mandatory lawful and moral boundaries around the infliction of physical harm upon women is, to my mind, so significant that any repetition of it in either identical or similar terms, and the harm that would result from it, is so serious that any risk of its re-commission is totally unacceptable to the Australian community.

    The likelihood of the non-citizen engaging in further criminal or other serious conduct (paragraph 8.1.2(2)(b))

    (i) Information and evidence on the risk of the Applicant re-offending

1. The Applicant’s SFIC lays out the various grounds on which this Tribunal can reliably find that the Applicant’s level of recidivist risk is now of a sufficiently acceptable level to facilitate a return to the Australian community. First, it is said that the Applicant is remorseful and that such remorse is to be found in four specific points of the written material now before the Tribunal.[22] Those written sources point to (1) a realization by the Applicant of his past difficulties with illicit drug abuse; (2) a realization of how his offending has impacted his family and the broader community; and (3) a stated intention to engage in future rehabilitative treatment.

   [22] See A1, pp 14-15, para [61].

2. Second, with specific reference to the issue of rehabilitation, the Tribunal is taken to the earlier decision of this Tribunal involving this matter where it found that the Applicant represented an unacceptable recidivist risk. The Applicant’s SFIC says that such a finding is now displaced because of (1) the Applicant’s claimed rehabilitation from drug addiction; (2) his ongoing participation in rehabilitative programs including the SMART Recovery Program and Narcotics Anonymous organisation; (3) his rehabilitation from domestic violence offending, propounded to have occurred as a result of his participation in some 42 counselling sessions with QPASTT.

3. Third, there is a contention that the Applicant has ‘eliminated factors which contributed to his offending’. The past ‘substantial nexus’ between his conduct and his abuse of illicit substances, mainly methamphetamine is now said to be at an end as a result of the rehabilitative courses he has completed and the treatments that have been administered to him.

4. Fourth, the Applicant’s ‘familial and community support’ is propounded as a factor now militative of a lower recidivist risk. It is said that if the Applicant remains in Queensland (upon a return to the community) he will have the emotional support of his mother, his two sisters and his nephew. Further to that, the Applicant’s four older brothers are said to be ‘responsible and committed to support the Applicant in every possible way.’[23] Although geographically distant from the Applicant, each of the Applicant’s brothers are married with stable families and careers.

   [23] Ibid, p 20, para [78].

5. One of the four brothers works fulltime as a Youth Support Manager and is said to have ‘substantial experience in dealing with youth with drugs and alcohol addictions and related criminal offending.’[24] Another brother is said to have professional experience in the care of vulnerable patients in hospital. The Applicant’s SFIC says that the brothers ‘…are ready, willing and able to take the Applicant out of Brisbane, away from his previous acquaintances and facilitate a new life for the Applicant going forward.’[25]

   [24] Ibid.

   [25] Ibid.

6. Fifth, the Applicant’s SFIC deals with what is perceived to be ‘adverse evidence’ referrable to information contained in an Incident Detail Report dated 16 May 2020. This is the abovementioned incident relating to purported footage of the Applicant placing a container holding illicit drugs underneath a table in the immigration detention facility in which he was then detained. I do not consider that this incident as described in the subject report or as otherwise purportedly depicted in the CCTV footage can now be found to reliably speak to the Applicant’s recidivist risk. While it can be accepted that the subject receptacle was swabbed and that it returned a positive reading for methamphetamine, nothing of a definitive nature against the Applicant resulted from it.

7. The prosecution of any alleged breach of the criminal law said to arise was dismissed on the basis that the prosecution had ‘no evidence to offer’ in relation to both subject charges. The CCTV footage, put at its highest, is evidence of the Applicant handling a package. The fact that the subject package was later swabbed and returned a positive reading for drugs is simply evidence of a likelihood that the Applicant handled such a package. The evidence does not rise to a level convincingly suggestive of a reality that (1) the Applicant intended to consume those drugs; or (2) that he intended to supply those drugs to others. The further and perhaps more fundamental question about the veracity of the CCTV footage has never been the subject of any formal finding.

8. Sixth, the Applicant’s SFIC refers to the Applicant’s conduct during his time in both criminal custody and immigration detention as ‘stellar’.[26] In his SFIC reference is made to specific documents by those in authority in either prison or immigration detention which talked to the positive attributes of the Applicant’s conduct in those facilities. It is propounded that the Applicant has occupied himself in both criminal custody and immigration detention by working in productive roles.

   [26] A1, p 22, para [84].

9. Seventh, it is said that the Applicant committed his offences ‘…without the knowledge that he was residing in Australia on a visa which could be cancelled’. This is a somewhat peculiar contention because the corollary of the submission is a concerning one. A member of the Australian community would expect a non-citizen to observe the laws of this country regardless of their visa status. The concerning corollary is that if the Applicant was a citizen (and assuming he knew that as a result of being a citizen he could not be deported for the offending he had committed or would commit), are we now to assume he would have more readily committed that unlawful conduct? This submission does not travel very far. A non-citizen of this country must not breach its laws out of a respect of those laws and lawful authority. Abstinence from offending should be predicated on that respect and not out of fear of removal consequent upon offending.

10. Eighth, reliance is placed on the report of Dr Emily Kwok, the clinical and forensic psychologist. Three of Dr Kwok’s reports are before the Tribunal. They are respectively dated 10 October 2022,[27] 25 November 2022[28] and 7 December 2022.[29] I will deal with the expert opinion of Dr Kwok later in these Reasons. But in the Applicant’s SFIC, the Tribunal is urged to accept that ‘…the Applicant will be at low risk of re-offending if he is released to the community.’[30] This primary contention evolves into five supplementary contentions which are said to ground the primary contention of a low recidivist risk. Those supplementary contentions are: (1) the Applicant’s remorse and stated intention not to reoffend; (2) his exemplary behaviour in prison and immigration detention; (3) the level of his participation in rehabilitation; (4) that the ‘…circumstances of the Applicant’s re-offending have fallen away and is [sic] unlikely to resurface in the foreseeable future’[31]; and (5) Dr Kwok’s finding that the Applicant is a low recidivist risk ‘…provided that he continues to engage with treatment upon release into the community’.[32]

    [27] A5.

    [28] A6.

    [29] A29.

    [30] A1, p 24, para [92].

    [31] Ibid, p 25, para [93(d)].

    [32] Ibid, p 25, para [93(e)].

11. In the Respondent’s SFIC the Respondent addresses the Applicant’s recidivist risk and concludes that he represents a ‘significant and ongoing risk’ of reoffending.[33] The factors propounded to support the suggested level of recidivist risk are as follows. First[34], reference is made to the opinion of Dr Kwok who found the Applicant represented a ‘moderate risk of domestic offending’ and a ‘low-moderate risk’ of non-domestic offending. The Respondent contends that even if this Tribunal accepts those assessed levels, the Applicant nevertheless represents an unacceptable risk when one has regard to the totality of his unlawful conduct to date.

    [33] R1, p 9, para [34].

    [34] Ibid, para [34.1].

12. Second,[35] the Respondent takes this Tribunal to the findings by the learned Member Bellamy[36] who found the Applicant represented a moderate recidivist risk. Third,[37] the Tribunal is taken to the sentencing remarks made in February 2019 which referred to the Applicant’s drug use during 2018 ‘escalating in a major way’.[38] Further, that in sentencing remarks made in July 2019, it was noted that the Applicant had ‘discovered and developed an addiction to methylamphetamine and other drugs and alcohol, which is indeed a very sad situation.’[39]

    [35] R1, p 9, para [34.2].

    [36] Now Senior Member Bellamy.

    [37] R1, p 9, para [34.3].

    [38] Ibid.

    [39] Ibid.

13. Fourth,[40] the Respondent contends that any rehabilitative benefits the Applicant claims to have experienced from any rehabilitative courses he completed while in criminal custody and immigration detention must be tempered by the reality that he previously relapsed into serious drug abuse following him ceasing residing with his mother and then reconnecting with ‘bad company’. The further contentions are (1) that the Applicant has a poor record of actually doing rehabilitation; and (2) that the Applicant’s capacity to participate in a sustained pattern of rehabilitation remains to be tested outside of the controlled environment of criminal custody and/or immigration detention.

    [40] Ibid, pp 9-10, para [34.4].

14. Fifth,[41] the Respondent contends that the Applicant’s repeated commission of violent offences does not bode well for his level of recidivist risk. This contention is sought to be augmented by (1) the Applicant’s lengthy history of committing criminal offences in Australia; and (2) some sentencing remarks that refer to the Applicant’s high levels of aggravation and aggression in his offending pattern.

    [41] Ibid, p 10, para [34.5].

15. Sixth,[42] the Applicant is said to represent a significant and ongoing recidivist risk because his pattern of offending is redolent of a person who has not developed any measure of respect for lawful authority and that this can be seen in his repeated breaches of orders and undertakings as well as his various convictions for challenging or otherwise not complying with directions from law enforcement officers.

    [42] Ibid, para [34.6].

16. Seventh,[43] the Respondent contends the Applicant has not experienced any demonstrable deterrent effect as a result of custodial terms imposed on him. For example, he served four months in custody from October 2018 to February 2019, yet committed drug offences barely two months later in April 2019.

    [43] R1, p 10, para [34.7].

17. Eighth,[44] the Respondent refers to the abovementioned incident in immigration detention apparently captured on CCTV footage involving the Applicant handling a package that was subsequently swabbed positive for methamphetamine. I have earlier outlined my thoughts and findings in relation to any weight or reliance being allocated to this item.

    [44] Ibid, pp 10-11, para [34.8].

18. Ninth,[45] reference is made to the Applicant’s purported attribution of blame for his first conviction for assault occasioning bodily harm at the feet of his lawyer. In particular, the Applicant says that if he had known about the impact of a guilty plea on his migration status, he would not have pleaded guilty. This position taken by the Applicant can be rejected for two reasons. First, this Tribunal will not countenance any adverse submission or contention about the performance of a legal practitioner (or other professional services provider) without that legal practitioner having an opportunity to explain the fact, matter, or thing being alleged against them. Second, it is trite for the Applicant to now suggest that the truthfulness he would exercise in relation to the subject charge should have been predicated on its impact on his migration status. The Applicant’s obligation is to tell the truth about whatever was alleged against him on which the subject charge is grounded.

    [45] Ibid, p 11, para [34.9].

19. Finally,[46] the Respondent contends the Applicant’s recidivist risk is critically connected to his capacity to ‘…abstain from abusing drugs and control his aggression…’. If these two parameters are not met, the Respondent contends the Applicant’s risk of re-offending remains a real possibility. The consequential submission is that given the Applicant has been in either criminal custody or immigration detention since April 2019, sufficient time has not elapsed whereby the Applicant has been unsupervised in the general community such that his claimed rehabilitation and acceptable recidivist risk have been tested.

    [46] Ibid, para [34.10].

20. I will turn now to discuss and analyse the evidence of the lay witnesses to whatever extent those witnesses may have something to say about the Applicant’s recidivist risk. In his evidence-in-chief, the Applicant acknowledged his present difficulties with his visa status derived from a reality that he had committed some very serious offences. He acknowledged that he had ‘…done a terrible thing. And I’m really disappointed by my past behaviour.’[47] He said that his remorse and regret derives from (1) the way he treated his victims and (2) the way his offending is indicative of him mistreating his opportunity to come to, and settle in, a country like Australia.[48]

    [47] Transcript, p 62, lines 3-5.

    [48] Ibid, lines 10-14.

21. He does not think he will ever again harm another partner in a domestic setting. This is because he has come to a realisation that ‘…As a partner you’re meant to show love to people that you love, not to hurt them.’[49] He acknowledges the role that illicit drug use has played during some of his domestic violence offending and he categorically stated that he regretted using and abusing illicit drugs. He says that he has reached a turning point in his life such that this Tribunal should be comfortable with making a finding that his relationship with illicit substances is at an end:

    ‘MR ZHANG: And why should the tribunal be comfortable that you won’t use drugs in the future?

    APPLICANT: It comes down to my life, or the drugs.  And I have to really choose wisely then.  With the drugs in the past, got me into crimes.  And the harms that I done to people in the past.  So, it comes down to my life or the drugs that will lead me to crimes or my life in Australia.  Or my life as a person, so, if I go back to doing crimes, I’ll get deported.  The consequences are really big to - I don’t think I’ll ever touch drugs again.’[50]

    [49] Ibid, lines 19-20.

    [50] Ibid, lines 30-36.

22. The Applicant was asked about his time in prison and immigration detention and whether he had ever felt the urge to physically hurt someone. He responded in the negative. He then spoke about the range of courses he had completed and how those courses had equipped him to control his impulsivity with regard to aggressive behaviour and a compulsion to abuse illicit substances. In particular, he referred to his attendance at, and completion of, the Impulsivity Course, the SMART Recovery Program, his participation in Narcotics Anonymous and the counselling he has done with QPSATT.[51]

    [51] Transcript, pp 65, lines 17-45; p 66, lines 1-47; p 67, lines 1-3.

23. In cross-examination the Applicant was taken to the evidence he provided to this matter’s previous ventilation in this Tribunal. He was specifically taken to a portion of his oral evidence at the previous hearing and it was suggested to him that a specific part of that evidence could be construed on the basis that the Applicant acknowledged a failure to take responsibility for his past wrongdoing. At the Hearing before me the Applicant dealt with this suggestion in these terms:

    ‘APPLICANT: No, I’m doing it for myself and my own good of being honest to myself because I can’t lead my life in a lie.  I want to own up to every single thing that I’ve done if it’s somebody that I hurt or if it’s somebody that I - like, I am a completely different person.  I’m being honest to myself.’[52]

    [52] Ibid, p 71, lines 17-21.

24. The Applicant was then taken to his statutory declaration[53] made on 25 October 2022, which dealt with a previous episode of violent conduct by the Applicant that occurred on

    
    

    24 February 2014. The Applicant was challenged about his evidence appearing at paragraph [54] of that statutory declaration wherein he said that he did not remember saying the things alleged in the relevant police facts sheet but that he nevertheless did accept saying those things. In particular, the Applicant was challenged about the equivocal posture of this type of evidence. He responded with this:

    ‘MR KYRANIS: That’s what you said in your statutory declaration.  My question to you is, you don’t remember punching her but you don’t deny that you did punch her; is that right?

    APPLICANT: Yes.  I don’t - I don’t deny it that I did punch her, but I said whatever the - because I was intoxicated at that time, so really, I don’t think the police will lie.  So whatever the police said, I will agree to, that I’ve done that.  Even though I don’t recall.’[54]

    [53] A7.

    [54] Transcript, p 74, lines 4-9.

25. There followed some similar questions about inconsistencies between what he told the previous ventilation of this matter in this Tribunal and what he was saying now about his culpability for commission of the subject offending. As best as I understood the Applicant’s evidence, he reached the point of confirming to this Tribunal that in relation to the commission of his offending: ‘I accept it’.[55] There followed further questions whereby the Applicant was (1) taken to a specific instance of his offending; (2) taken to the evidence he gave about that incident to this Tribunal at the previous ventilation of this matter; and (3) challenged about why there may be said to be differences in his evidence. He responded thus:

    ‘MR KYRANIS: Can you see that that’s different, your evidence today is different from what you told the tribunal last year?  Last year you said that you didn’t do those things.  Today you’re saying the complete opposite, that you did?

    APPLICANT: I’m being honest to myself, and I want to address my behaviour.  The only way I can address it is being honest to myself.  I can’t lie to myself and say I’m going to do this, and I don’t at the end of the day.’[56]

    [55] Transcript, p 75, lines 30.

    [56] Ibid, p 78, lines 30-35.

26. The next phase of the Applicant’s cross-examination involved him being asked questions about the nature of his past personal relationships with particular reference to his very serious offending against those victims. He was forthright and frank in his responses. He spoke of the positive aspects of those relationships and still referred to those previous partners in positive and endearing terms.

27. He was then taken to his involvement with illicit drugs and he agreed that most of his offending was committed while under the influence of illicit substances.[57] He agreed that his abuse of illicit drugs became problematic in the year 2015 when he moved back into his mother’s house. He said that he was using illicit drugs and he made the decision to ‘…move back to mum’s house because I was living by myself in a house…- I was starting to get psychosis from the drugs and stuff, so I decided…to leave and go to mum’s house where I can’t use drugs or where I can’t really access drugs…’[58] He said that he resided with his mother for about two years from 2015 onwards.

    [57] Transcript, p 90, lines 35-43.

    [58] Transcript, p 91, lines 9-13.

28. He said that he started using drugs again after leaving his mother’s house and going to live with a female, who eventually became another victim of his violent offending. He told the Hearing before me that this female person was a regular user of drugs and her friends were as well. The Applicant’s violent conduct towards this victim saw him placed into criminal custody in November 2018 and eventually released on parole in 2019. He accepted that several months after his release, in April 2019, he breached the domestic violence order that the subject victim had taken out against him.

29. The Applicant acknowledged his use of suboxone during his time in jail in 2019 after being offered the substance in criminal custody. He said that he tried it but that it made him feel ill and that he ‘…never really touched it again.’[59] He was asked about future personal relationships and told the Hearing before me that ‘…I don’t see myself getting into a relationship anytime soon.’[60] The Applicant was challenged about this evidence and whether the Tribunal could reasonably believe his evidence about abstaining from entering into personal relationships as a basis of finding the Applicant had a lower level of recidivist risk. This is what the Applicant said in cross-examination:

    ‘MR KYRANIS: Is it the case that whilst you - if the tribunal gives you your visa back that, you know, you won’t be out in the community looking for a female partner, or looking for another relationship, but you’re not completely closed off to entering into a relationship if you meet someone?

    APPLICANT: If the tribunal was to give me back my visa, I’ve got so many things in life to worry about than worrying about getting a relationship with a woman.  I’ve got my life, I have to try and make something out of my life and enrich it by - I go to school and study PT, involve myself in the Australian community, be a coach if I can.  So a relationship, it’s really not even in the top 10 of things that, really, I want to achieve if I was to be given my visa.’[61]

    [59] Transcript, 92, line 37.

    [60] Ibid, p 93, lines 4-5.

    [61] Ibid, p 94, lines 16-25.

1. The Applicant was then taken to the range of rehabilitative courses he had completed and it was suggested to him that at least part of the reason why he completed some of those courses was to facilitate a successful outcome in the instant proceeding. The Applicant responded with this:

   ‘MR KYRANIS: At least - would you agree with this proposition, that at least part of the reason why you’ve completed these three impulsivity courses is because you think it will assist you in this tribunal application?

   APPLICANT: I done the course for my own benefit, and if it can help me in the tribunal, then I can take that help, but I done it with my own good - on my own will.  Like I said, I’m just trying to address my past, so anything to help me do that, I’ll do it.’[62]

   [62] Ibid, p 96, lines 29-34.

2. The Tribunal then received evidence from the Applicant’s first Sister, Sister A. In her evidence-in-chief, she spoke of the close relationship between her and the Applicant and said: ‘I visit him all along through all his journey in this process when he is in detention centre. So generally we have developed that close relationship apart from us being the family, or brother and sister. Yes.’[63]

   [63] Transcript, p 14, lines 22-25.

3. In cross-examination, Sister A was taken to her state of knowledge of the extent of the Applicant’s criminal offending and, in particular, to a portion of her written statement where she said ‘…I did not know much about the applicant’s criminal offending.’ She explained that statement thus:

   ‘So, first most of the things that he committed crime or whatever that was, he did not do them in the house, he did them outside when he goes to the community, would get into trouble there and then get arrested by the police and then go to detention, so that’s what I meant by that statement.’[64]

   [64] Ibid, p 16, lines 17-21.

4. Sister A was then taken to her statement made in October 2022 wherein she referred to a domestic violence incident that apparently occurred between the Applicant and her in March 2012.[65] The incident involved the Applicant’s commission of an act of family violence which involved him punching a wall and smashing a hole in that wall. The incident was witnessed by two children. Police intervened and found the aggrieved person (presumably Sister A) to be fearful of the Applicant’s conduct. The relevant police document also noted that the Applicant was found to be aggressive and belligerent. The incident resulted in the issuing of a domestic violence order which relevantly appears in the material.[66] Sister A sought to explain the circumstances of the incident in these terms:

   ‘MR KYRANIS:  In your statement at paragraph 34 where you talked about an incident on 28 March 2012 with you and your brother.  This was the incident, according to a police record, which involved your brother throwing a shoe at a wall and punching a wall.  You said that in your statement at paragraph 35 that this incident was simply a matter of challenging behaviour, not violence.

   INTERPRETER:  Yes, that’s correct.  I describe that as a challenging behaviour because he was a teenager by then and number two, he wanted to leave late in the evening that “I am going to a friend house” and then we told him, “This is not appropriate time for you to leave” so he got frustrated.  He was not fighting anyone and then he start kicking the wall and punching the wall.  That is a normal behaviour to any child, to any young person, so he was not fighting anyone.

   MR KYRANIS:  So do you describe the behaviour as not violent because he was not violent towards another person?

   INTERPRETER:  Yes, I wouldn’t describe that as a violent process because he did not fight anybody or altercate with anyone.  The whole idea is he is being restricted not to leave the house, that was his disappointment.   Yes, the same thing to me, I wouldn’t quarrel him.  I just told him, “This is not appropriate time for you to leave, so you don’t need to go, you can go another time and then he get frustrated and that’s why he was doing the behaviour, displaying the behaviour he was doing.’[67]

   [65] A11, p 5, para [34].

   [66] G1, p 371-373.

   [67] Transcript, p 16, lines 27-47; p 17, lines 1-4.

5. The Applicant’s second sister, Sister K, also provided oral and written evidence to the instant Hearing.[68] In the first of her two written statements,[69] Sister K confirms that she has maintained frequent contact with the Applicant and that she speaks to him at least once a month via videocall.[70] She is aware of the nature of the Applicant’s offending. While she expresses disappointment at the nature and extent of the Applicant’s offending, she says that she does ‘…not want him to suffer anymore.’[71]

   [68] A12, A20.

   [69] A12.

   [70] Ibid, p 1, para [7].

   [71] Ibid, p 2, para [9].

6. From a recidivist risk perspective Sister K says ‘I believe that he has the capacity to be a better person, especially given his behaviour prior to the beginning of his criminal offending.’[72] Further from a recidivist risk perspective, Sister K’s abovementioned statement talks about her providing the Applicant with emotional support and moral guidance if he is returned to the community. She says ‘I will do my best to help [the Applicant] get employment upon release. I am always will [sic] to provide [the Applicant] financial support.’[73]

   [72] Ibid, para [9].

   [73] Ibid.

7. In her evidence-in-chief, she was taken to the second page of her abovementioned statement and, in particular, to her comment that ‘[the Applicant’s] ongoing detention has had a negative effect on our family, especially our elderly mother.’[74] Sister K implored the Tribunal to allow the Applicant a second chance to remain in Australia. She said ‘Literally he doesn’t know anything about that place [i.e South Sudan]. His life was entirely here.’[75] Sister K was not cross-examined.

   [74] Ibid, p 2, para [12].

   [75] Transcript, p 21, lines 26-27.

8. The next witness was the Applicant’s mother. She provided both oral and written evidence to the Hearing before me.[76] In her main statement (i.e Exhibit A13) she confirms that she is the Applicant’s biological mother. She also confirms, consistent with the Applicant’s evidence, that much of the Applicant’s current difficulties arise from his leaving her residence and going to reside with other people. After he left the house the Applicant’s mother says:

   ‘…it was difficult to know what he was up to. We often tried to call his mobile but it was often too difficult to get a reply. I remember that sometimes he would switch off his mobile or change his mobile number. This is really when his problems started.’[77]

   [76] A13, A21.

   [77] A13, p 3, para [18].

9. She is aware of the nature and extent of the Applicant’s offending because he disclosed all of this to her. Be that as it may, she thinks the Applicant ‘…has now changed for the better. I feel a change in him.’[78] She says that:

   ‘When you speak to him, you will understand something is different and I believe that he is ready to behave in the same way he did before his troubles started. I know my son is tired from detention and I think it is very unlikely that he will do anything to put himself in the same situation again.’[79]

   [78] Ibid, p 4, para [20].

   [79] Ibid.

10. She says that she can offer the Applicant lodgings at her home where she currently resides with Sister A and her children. She said the Applicant can live with them ‘…as long as he likes.’[80] She adds that ‘On the other hand, if as a family we decide it would be better for [the Applicant] not to live in Brisbane but in Canberra or Melbourne with his brothers, then that would be a very good option as well.’[81] She is of the view that if the Applicant did leave Brisbane it would keep him away from the bad company he made and kept here which she says ‘…got him into drugs and alcohol in the first place...’[82] She thinks the Applicant’s difficulties with drugs and alcohol has been ‘…the root cause of all his offending.’[83]

    [80] Ibid, para [21].

    [81] Ibid, para [22].

    [82] Ibid.

    [83] Ibid.

11. In her evidence-in-chief, the Applicant’s mother implored the Tribunal to allow the Applicant to remain in Australia. She does not cavil with the Applicant’s removal from the Australian community as a result of his very serious criminal offending. She concludes her evidence-in-chief with these words: ‘That’s why he has been in jail for long. So I want him to be given a chance, because he has- he might have learned from that detention.’[84]

    [84] Transcript, p 24, lines 5-7.

12. In cross-examination, the Applicant’s mother was taken to the abovementioned portion of her abovementioned written statement where she spoke of the period immediately after the Applicant left her home and remained difficult to contact on his mobile phone. She appeared to alter her evidence in cross-examination. The Respondent’s representative asked her whether she was aware that the Applicant was committing crimes after he left her residence. She responded with: ‘I don’t know.’[85] She was also asked whether she knew – at that time – that the Applicant was taking illegal drugs. She replied with: ‘I was not aware.’[86]

    [85] Transcript, p 24, lines 33.

    [86] Ibid, line 37.

13. When the Applicant proved difficult to contact, it understandably caused concern in her mind. She was left with little alternative but to enlist the assistance of her daughters to try and locate the Applicant:

    ‘MR KYRANIS:  It seems from your statement, though, that when you weren’t getting a reply that you were concerned about him?

    INTERPRETER:  Yes, I was concerned because he’s my child.  So if your child leave your house and he has not come back, you will be concerned.  No.  I don’t know where he was.  I don’t know what he was doing.  So as a mother, I have to ask my daughters, let’s go and look for him.’[87]

    [87] Ibid, lines 39-45.

14. The next witness to give evidence was the first of the Applicant’s four brothers, namely, Brother A. He provided both oral and written evidence to the instant Hearing.[88] He travelled from Victoria to Brisbane to personally give his oral evidence to this Hearing. He is currently aged 33 years and is the brother closest in age to the Applicant. He completed high school in 2008 and then commenced making a career for himself. He did not realise the Applicant’s gradual decline into difficulties with drugs and offending. He says the Applicant’s prominence and success as an athlete and football player masked those difficulties. He said the family had ‘…no idea about narcotic drugs [affecting the Applicant] at that time so could not tell the symptoms.’[89]

    [88] A9.

    [89] A9, p 1, para [8].

15. Brother A got married started his family and moved to Victoria in 2017. He noted that the Applicant ‘…started becoming a completely different person but I did not know why.’[90] He now says ‘I feel really bad thinking that when I left Brisbane in 2017, I left him with no support as his brother…’[91] In terms of recidivist risk, he said:

    ‘I work in the healthcare sector as a personal carer of elderly people in the hospital. I know how to take care of vulnerable people. If [the Applicant] is released from detention, I will provide all possible support including financial support and accommodation arrangements. I will also work closely with my other brothers to draw up and implement a sustainable plan for [the Applicant] so that he never falls back to his dark past again.

    Since he has been clean of drugs and alcohol in detention, I feel like [the Applicant] is more like the [the Applicant] that we used to know, he sounds so much better. I am confident if given the chance, he will come back to us as the kind, caring and responsible person we know him to be and we will make sure he will remain that way.’[92]

    [My emphasis]

    [90] Ibid.

    [91] Ibid, p 2, para [9].

    [92] Ibid, p 2, paras [10]-[11].

16. In his evidence-in-chief, Brother A initially confirmed his personal antecedents. He also confirmed that although he resides in a different state to the Applicant he has maintained a close relationship with him. He was specifically asked how he could support the Applicant in the event of his release into the community:

    ‘MR ZHANG: And how can you support [the Applicant] if and when he’s released into the community?

    BROTHER A: He’s my brother.  I can do anything for him.  I can support him, if he, like, financially, I will support him.  And, like, accommodation and all that.  I’m happy to live with him.  He’s my brother.  So, I can do anything to support him.

    MR ZHANG: So, provided that the applicant is, at some point in the future, willing to come to Melbourne, if he’s released, you’d be happy to have him there?

    BROTHER A: I’ll be very happy.’[93]

    [93] Transcript, p 106, lines 23-31.

17. In cross-examination, Brother A was asked about what he knew of the Applicant’s criminal offending. He responded with: ‘I don’t know anything before until today. All the time that I was being told to come to court as – because [the Applicant] never told me what he had done wrong and what crimes he has committed.’[94]

    [94] Ibid, p 107, lines 5-7.

18. The next brother of the Applicant to give evidence was Brother B, who provided both oral and written[95] evidence to the instant Hearing. In his evidence-in-chief, confirmed his personal antecedents. He works as a ‘construction tradesman’ in Canberra. He travelled from the ACT to Brisbane to appear in person to give his evidence to the instant Hearing. He has worked in the construction field for nearly 14 years.[96] He lives in Canberra with his wife and three children, his wife is expecting their fourth child. Brother B, his wife and their children all Australian citizens. He says that he shares a ‘close bond’ with the Applicant.[97]

    [95] A10. See also G1, p 190 (Exhibit A3 of the past hearing).

    [96] Transcript, p 108, lines 37-38.

    [97] Ibid, p 109, lines 17.

19. Brother B is very motivated to take an active role in the Applicant’s life if returned to the community. This is what he said in evidence-in-chief:

    ‘MR ZHANG So you’re going to take a active role in his life if he’s released?

    BROTHER B: Yes.

    MR ZHANG: And what are your views of [the Applicant] moving to Canberra?

    BROTHER B: Repeat that again.

    MR ZHANG: What are your views of [the Applicant] moving to Canberra if needed?

    BROTHER B: 100 per cent.  As myself living in Canberra, I got two places.  One two-bedroom house which is - if he get to Canberra right now and today, I’ll get him to go to the job.  He have a stable accommodation.  I’ll live with him and do everything I can possibly do. 

    MR ZHANG: And - - -?

    BROTHER B: I can get him work.  I can get him – if he want to pursue his education, he can go on there.  And financially, emotionally, everything, I can do that.’[98]

    [98] Ibid, p 109, lines 30-42.

20. In cross-examination, Brother B was asked about the extent of his knowledge about the Applicant’s criminal offending. He responded with: ‘…I’ve never saw [sic] or learned about it until recently.’[99] In re-examination, Brother B was again asked about the extent of his knowledge of the types of crimes committed by the Applicant. This is what he said:

    ‘MR ZHANG:  Sir, can you just confirm for the tribunal, your knowledge of the types of crimes that your brother has committed?  What kind of offences or crimes he’s committed?

    BROTHER B: Assault and possessing a prohibited substance…

    …

    MR ZHANG: So just to confirm your evidence, is that – you understand the applicant’s offences to involve assault and the use of drugs?

    BROTHER B: Yes.’[100]

    [99] Transcript, p 110, lines 14-15.

    [100] Ibid, p 111, lines 1-3; lines 12-13.

21. There followed some questions from the Tribunal for Brother B. In asking the following questions of Brother B,I was mindful of Dr Emily Kwok’s finding that the Applicant represents a low recidivist risk ‘…provided that he continues to engage with treatment upon release into the community’.[101] The following question and answer exchange ensued between me and Brother B:

    [101] A1, p 25, para [93(e)].

    ‘SENIOR MEMBER: And I wanted to get back to this evidence of yours about wanting to 100 per cent support him if he comes back into the community?

    BROTHER B: Yes. 

    SENIOR MEMBER: And I’ve got no doubt that you and your brother who have done extremely well since coming to this country – it’s a credit to you, it really is a credit to both of you?

    BROTHER B: Thank you.

    SENIOR MEMBER: I’ve got no doubt that you can support him.  But my question is this; earlier in the hearing, we heard some evidence from a doctor – a psychologist.  And that doctor said – and she’s written reports – that say that your brother, to make sure that he can manage his alcohol and drug issues – because he does have those issues - - -?

    BROTHER B: Yes. 

    SENIOR MEMBER: - - - he’s got to really get serious about staying with therapy and counselling if he comes back in the community.  And she said, this doctor, if he does not do that, there’s a big chance or a good chance that he could commit more offences.  So it’s important that if your brother comes back into the community, someone’s got to watch him and push him and make sure – drag him even – to those counselling sessions or those therapy sessions, whatever those sessions are going to be.  Because the big issue with your brother is if he comes into the community, he can’t go back to the drugs or the alcohol?

    BROTHER B: He cannot. 

    SENIOR MEMBER: That’s what’s wrecked his life?

    BROTHER B: He cannot.  I promise that. 

    SENIOR MEMBER: I’m pretty sure about that.  That’s what’s wrecked his life, right.  So listen to the question after what I’ve said to you?

    BROTHER B: Thank you. 

    SENIOR MEMBER: If he comes into the community and comes to your door and says, “Help me”, you can help him with accommodation, you can help him with the necessities of life.  Can you tell this tribunal that you will make sure that if he comes back into the community, you will make sure that he stays in touch with therapy, counselling, treatments, to prevent him going back to the drugs?

    BROTHER B: Yes, I - - -

    SENIOR MEMBER: Can you tell this tribunal that?  Just don’t say yes because you think it sounds good.  Tell me yes because you can.  If you can’t, I respect that because you’ve got a wife, you’ve got children?

    BROTHER B: Yes.

    SENIOR MEMBER: And you’ve got your own life to get on with, and if you’re too busy, I would totally understand that, and I would not think you’re a bad person.  So, I’m going to repeat the question.  It’s a very important question.  If he comes back – your brother comes back into the community and comes to you or to members of your family, the important thing is that he has to be managed like a drug addict which is – basically he has been.  Let’s be honest about it.  So, can you manage that?  You have to tell him to go to the therapy.  Can you do it or not?

    BROTHER B: I can do that.  That’s what I say before, 100 per cent.  And if he’s released today, I will take care of him if needed, and I will make sure it is – I’ll take him to the therapy, and he will understand where the family will bond together will help that close relationship.  Anything he need, I will make sure.  I will drag him to the drug alcohol test, anything that’s need help, I can do that with the professional where he need to go to.

    SENIOR MEMBER: All right.  That’s good.  So, the next question is this.  Does he listen to you, or does he just get out of control and doesn’t listen to anybody?

    BROTHER B: Yes.  He listen to me.’[102]

    [My emphasis and underlining]

    [102] Transcript, p 112, lines 42-47; p 113, lines 1-46; p 113, lines 1-3.

22. This theme of the brother(s) maintaining a vigilant watch over the Applicant’s compliance with rehabilitative treatment in the community took on a cultural flavour whereby Brother B told the Tribunal of a cultural imperative for the older siblings to look after (in this case) the younger errant sibling:

    ‘SENIOR MEMBER: You or a combination of you and your brothers will be able to control and manage the applicant just like a child because that’s how he’s behaved so far?

    BROTHER B: Yes, yes.

    SENIOR MEMBER: You will be able to control and manage and make sure that - - -?

    BROTHER B: Yes.  We will continually manage him.

    SENIOR MEMBER: - - - he goes into therapy?

    BROTHER B: And he’s a child.  Even if he have a grandkid, he’s still a child to us.  Our culture is very strong.  It doesn’t matter how old you are, and that’s why we grow up the way we – okay.  It’s my younger brother.  He might look older than me, but anything I say, though he have his children and wife and all that, I go and say this, respect it.  That’s the culture we grow up, and he need to get in touch with it.  The time has been away – just – yes.

    SENIOR MEMBER: Okay.  So, culturally, you’re expected to support each other; is that right?  I’m not familiar with your culture?

    BROTHER B: We – no family (indistinct) culture.  That’s not a problem.  Was in our family as our family.  We respect even one day all of the – you listen to him or her as your mother and your father.

    SENIOR MEMBER: I see because you’re older than him?

    BROTHER B: Yes.

    SENIOR MEMBER: And your other brother’s older than him?

    BROTHER B: Yes.

    SENIOR MEMBER: So, you’re like parents, authority figures looking down on him and telling him what to do?

    BROTHER B: Yes, exactly.’[103]

    [103] Transcript, p 115, lines 16-41.

1. In her evidence-in-chief, the Applicant’s mother was asked about the extent to which the Applicant’s ongoing detention had affected her life. To my mind, the comments she makes about how her life is affected by the Applicant’s ongoing detention can be equally taken into account in a scenario where he is removed from Australia:

   ‘MR ZHANG:  And how has the applicant’s ongoing detention affected your life?

   INTERPRETER:  Yes, it’s affecting me as a mother.  So of course, he is my child.  I need him to be like other children, to do something useful.  So at the same time, I’m also stressed.  And again also, I can’t do anything because it’s out of my reach.  This is a country that has (indistinct words).  So I know that.  But at the same time, I need my child to be with me.’[230]

   [230] Transcript, p 23, lines 33-40.

2. In her oral evidence, she also said ‘but as a mother, I will not support him to be removed from here. We need him to be given a second chance.’[231]

   [231] Ibid, p 23, line 47; p 24, line 1.

3. Sister A has provided two written statements to this Hearing. In the first of those statements made on 30 October 2022 she confirms that if released into the community, the Applicant will reside at the family residence with her. She says that she will support the Applicant if he decides to remain in the Brisbane/South-East Queensland area and that she also has an open mind to him relocating to Canberra or Melbourne to live with one of his brothers:

   ‘I will be able to support [the Applicant] emotionally and ensure that he is spending his time around the right people. I will guide him and not provide him an opportunity to reconnect with a bad crowd. I will actively help him look for a job so that he can make his own income, have his own kids and integrate back into the Australian community.

   My sister, mother and I also intend to bring him to church every Sunday. We believe that if [the Applicant] reconnects with his face [sic], then this would mitigate against any risk of reoffending.

   In the alternative, as a family we may also decide that it would be best for him to be outside Brisbane away from his previous crowd. Two of our brothers live in Canberra and two of them live in Victoria. One of the brothers is a youth support manager experienced in handling young people in [the Applicant’s] situation. Another one is an experienced health care worker. They are very eager to take [the Applicant] under their wings and effectively monitor and guide him.’[232]

   [232] A11, p 6, paras [37]-[39].

4. In this particular statement, Sister A outlines how she would be adversely affected in the event of the Applicant’s removal:

   ‘If [the Applicant] were sent back to South Sudan or kept in a detention centre forever, this would have an extremely negative impact on myself and my family. [The Applicant] is our brother and we love him very much. We want him to have gainful employment and have a good life. We will be very stressed if he sent back to Africa. I feel like I will be psychologically affected. I want my brother to live with me and have a relationship with my sons. One time, [the Applicant] called my mom and I and cried. This stressed my mother out and she fell over and broke her arm. She had to undergo an operation as a result, and nearly died during the procedure. My mom is very old now and feels very bad about [the Applicant] current circumstances.’[233]

   [233] A11, p 6, para [42].

5. During her evidence-in-chief, Sister A was asked whether she and her family would be impacted in the event of the Applicant’s removal and she responded thus:

   ‘MR ZHANG:  Thank you.  Can you tell the tribunal the impact on your family if the applicant is removed from Australia?

   INTERPRETER:  Yes, it will have an impact definitely.  First as a family we are all here and if he is taken - if he is removed from Australia so ideally we don’t know where he’s been taken because there’s not any other family member there.  Yes.’[234]

   [234] Transcript, p 13, lines 11-17.

6. Sister K has provided a written statement to this Hearing. It was made on 30 October 2022.[235] She says ‘I have been very close with my brother since we were young kids.’[236] Since the Applicant’s removal from the Australian community, Sister K says ‘I have maintained frequent contact with my brother. I speak with him at least once a month via video-call.’[237] She expresses disappointment with the Applicant as a result of his criminal offending but adds that ‘I do not want him to suffer anymore. He is my brother and I love him. He is my blood and I want the best for him.’[238]

   [235] A12.

   [236] Ibid, p 1, para [5].

   [237] Ibid, para [7].

   [238] Ibid, p 2, para [9].

7. If released into the community, Sister K will provide both emotional and moral support to the Applicant. She concludes her statement by saying this:

   ‘I will do my best to help [the Applicant] get employment upon release. I am always will [sic] to provide [the Applicant] financial support.

   I hope that this Tribunal can give my brother a second chance. His ongoing detention has had a negative effect on our family, especially our elderly mother.’[239]

   [239] A11, p 2, paras [11]-[12].

8. In her oral evidence, Sister K was asked about the impact she would experience in the event of her brother’s removal. She responded thus:

   ‘MR ZHANG:  Okay, great.  Can you please tell the tribunal how you would be impacted  if your brother was either kept in detention for the rest of his natural life or sent back to South Sudan?

   INTERPRETER:   Yes, first of all that will affect me mentally, so in term of of [sic] distress and depression, if he is kept in detention indefinitely, so the same apply if he is  taken back to South Sudan there is no-one there that he will go and live with, the whole family is here, my sisters, brothers, my mother, they all living in Australia.’[240]

   [240] Transcript, p 19, lines 38-46.

9. I will, at this stage, assess the weight allocable to the Applicant’s links with his mother and two sisters separately to his links with his brothers. This is because the Applicant has in the past actually resided with his mother and at least one of the two sisters. Whereas it appears the brothers have relocated interstate for the purposes of establishing and progressing their lives. Therefore, focusing on the strength, nature and duration of the Applicant’s ties with his mother and two sisters, I am of the view that those ties weigh very heavily in favour of setting aside the decision under review. I base this finding on his mother and two sisters being Australian citizens, Australian permanent residence or people who have a right to remain in Australia indefinitely.

10. Brother D has provided the one written statement which appears twice in the material. This is because the second copy of the same statement has additional annexures compared to the first, these statements are both dated 30 October 2022.[241] As will be recalled from my earlier review of his evidence on the issue of recidivist risk, this particular brother wants the Applicant to relocate to Canberra and to reside with him:

    ‘Now that I have been informed of [the Applicant’s] situation, I would only plead that he be given one more chance to have a decent life. If and when released from immigration detention, we as a family would get him out of Brisbane where his old influences reside. We would like to bring him to Canberra and preferably live with me. I am experienced with youth in similar situations who got addicted to drugs and alcohol then got embroiled in criminal offences as a result. I know how to monitor and supervise him in his situation and help him get better.

    I can and am able to provide him with all financial support and accommodation for as long as needed. I have a 4 bedroom house here in Canberra and there are 2 spare rooms in my house. He can live here so that I can oversee him on a daily basis. I have attached my payslip and my property document as proof of my undertaking.’[242]

    [241] Exhibits A8 and A8.1.

    [242] A8, p 2, paras [11]-[12].

11. In his oral evidence at the Hearing, Brother D was asked about the nature of his relationship with the Applicant. He told the Hearing: ‘we have a very close relationship with him. Very close relationship. Like, what I mean with a close relationship, we have a very special bond with him so – yes.’[243] He was also asked about the extent to which the Applicant’s ongoing detention is affecting him and his family. To my mind the answer he gave to this question can be equally applied to a question involving the impact of the Applicant’s removal:

    ‘MR ZHANG: And how is the applicant’s ongoing detention currently affecting you and your family?

    BROTHER D: It is actually affecting us a lot as a family because as - I said it before that he’s my younger brother.  And as I stated that we have a very special relationship with him.  We do miss him badly.  We want him to be’[244]

    [243] Transcript, p 123, lines 39-41.

    [244] Ibid, p 124, lines 36-39.

12. There are two documents from Brother B in the material. The first of those is dated 11 May 2021 (provided for the previous ventilation of this matter).[245] In this first statement Brother B refers to the extent of the family’s support for the Applicant:

    ‘On behalf of the family, we are all supporting his case, with the hope of reuniting him with us, and our community. In regards to his welfare; including accommodation, employment, medical needs, we are all prepared to support him. He is welcome to live with me in Canberra, or with my mother, or sisters in Brisbane.’[246]

    [245] G1, p 190.

    [246] Ibid.

13. In the second of his two statements made on 31 October 2022,[247] Brother B asks for the Applicant to be given a second chance to remain in Australia. The extent of the again-pledged level of support this Brother B is prepared to offer the Applicant if returned to the community does, to my mind, speak to the extent to which he would be impacted by the Applicant’s removal:

    ‘I can tell that his drug and alcohol addiction led him to criminal offending, there is no way he is a criminal person by nature. He has always been kind and caring to everyone around him, always the first one to be there whenever anyone needed help or support. If he is given one more chance to be in the community, I will support him in every way possible, both mentally, financially and providing food, clothing, accommodation whenever he requires. We have another brother here in Canberra who has expertise in monitoring and guiding youth with drugs and alcohol addiction related criminal offending. I am happy to take turns and support in whatever capacity is needed.’[248]

    [247] A10.

    [248] Ibid, pp 1-2, para [9].

14. In his evidence-in-chief given at the Hearing before me, Brother B was asked about how the Applicant’s ongoing detention is affecting him and his family. I am satisfied that the answer provided by Brother B can equally be applied to a scenario involving the Applicant’s removal to Sudan:

    ‘MR ZHANG: And can you describe how the applicant’s ongoing detention is affecting you and your family?

    BROTHER B: Gosh.  It’s affecting me and my family.  All of us in the whole family, my mother.  And it’s affecting me more emotionally than anything I could do.  I cannot go to bed and never think about it, and yes.’[249]

    [249] Transcript, p 109, lines 44-47.

15. Brother A provided both oral and written evidence to the instant Hearing. In his written statement made on 31 October 2022 he said that after he got married and started his own family he moved to Victoria in 2017.[250] In so doing, Brother A says ‘I left him with no support as his brother, I did not know what he was going through.’[251] If returned to the community Brother A says:

    ‘I will provide all possible support including financial support and accommodation arrangements. I will also work closely with my other brothers to draw up and implement a sustainable plan for [the Applicant] so that he never falls back to his dark past again.’[252]

    [250] A9.

    [251] Ibid, p 2, para [9].

    [252] Ibid, para [10].

16. In his evidence-in-chief he was asked about the nature and extent of the bond with the Applicant and he said the following:

    ‘MR ZHANG: So, even though you live in a different state, you’ve been able to maintain the close relationship with your younger brother?

    BROTHER A: Yes.  He’s my brother.  I love him so much, so we never had any time off until he got into what we in now.  So, and I’m very close to him.’[253]

    [253] Transcript, p 106, lines 15-18.

17. He was also asked about how the Applicant’s ongoing detention has and would impact him and his family. Again, to my mind, the response provided by Brother D would apply equally to a scenario of the Applicant’s removal to South Sudan:

    ‘MR ZHANG: And the last question is, what sort of impact is [the Applicant]’s ongoing detention having on you and your family?

    BROTHER A: First, for myself, I – it’s something that never get out of my mind.  And I’m always feeling guilty to myself that I’m not with my brother.  And I don’t want him to be, you know, by himself and I’m by myself.  I always want to be there with him and whatever help he need.’[254]

    [254] Transcript, p 106, lines 33-38.

18. Brother K did not give oral evidence at the Hearing before me. He has, however, provided a written statement which appears in the written material.[255] This written statement was made on 31 October 2022. He describes the Applicant as ‘…the most kind and helpful person…’[256]. He left Brisbane and relocated to Victoria in 2013 ‘…in order to take up better employment opportunity.’[257] He expresses guilt about not being physically present during the period of the Applicant’s offending:

    ‘I feel regret and remorse that I left Brisbane when I did, I keep thinking if things would be different if I was there to give him continued guidance as an elder brother.’[258]

    [255] A16.

    [256] Ibid, p 2, para [11].

    [257] Ibid, para [12].

    [258] Ibid.

19. He is ready, willing and able to support the Applicant upon a return to the community: ‘On my part, I will provide him all support that he needs to build his life back again in a healthy way, including any financial support that he might require.’[259] To my mind, the stated bond between Brother A and the Applicant together with his stated intention to so significantly support the Applicant upon a return to the community are factors that militate in favour of a finding that Brother A would be adversely affected by the Applicant’s removal. Brother A did not, as mentioned, give oral evidence at the Hearing and his evidence was not the subject of cross-examination by the Respondent.

    [259] Ibid, para [15].

20. With reference to the allocation of weight to the nature, strength and duration of the Applicant’s ties with his four brothers, I am of the view that those ties weigh very heavily in favour of a setting aside the decision under review. This finding is predicated on each of these brothers being Australian citizens, Australian permanent residents or people who have a right to remain in Australia indefinitely.

    ii. Strength, nature, and duration of “other ties” – length of residence

21. There are two necessary enquiries referable to the extent of the Applicant’s ‘other ties’ to Australia. The first of those involves the question of how long he has resided in Australia, including whether he came here as a young child. As mentioned earlier, the Applicant first came to Australia in September 2006. It can be found that he has spent over 60%of his life in Australia. I am therefore satisfied that he has spent a long period of his life here.

22. I now refer to the two tempering sub-elements in paragraph 9.4.1(2)(a) of the Direction. The first of those requires me to allocate less weight if the Applicant began offending soon after arriving here. I have found that he came to Australia on a permanent basis in September 2006. His first conviction in an Australian court occurred in October 2013, which is over seven years after he arrived here. A period of in excess of  seven years post-arrival should not be construed as being ‘soon after arriving in Australia’. The first of these two tempering sub-elements can be put to one side and rendered neutral for present purposes.

23. The second of the two tempering sub-elements at 9.4.1(2)(a) of the Direction requires an assessment of the extent of the Applicant’s positive contributions to the Australian community. As I have mentioned earlier, there is reference in the Applicant’s PCF that he has engaged in remunerative employment in Australia.[260] The material contains references to his community contributions in the areas of (1) his playing football at a significantly high level; (2) his inclusion in the Queensland Academy of Sport in the field of athletics; and (3) his involvement in the Ipswich City Anglican Church both as a choir member and as part of its cultural dancing group. The Applicant has, via his engagement in remunerative employment, made some measure of contribution to Australia. This second tempering sub-element militates in the Applicant’s favour pursuant to this Other Consideration (d) for the setting aside of the decision under review.

    [260] G1, p 95.

    iii. Strength, nature, and duration of “other ties” – family and other social links

24. As best as I understood the material, there are only two possible references to people with whom the Applicant may have such links. There is reference to a 19 year old nephew (having the initial of ‘AAA’). I am not able to find any written statement attributable to this nephew AAA who was born in 2003. However, there is reference to this nephew at (1) the Applicant’s PCF;[261] the SFIC filed on behalf of the Applicant;[262] and the transcript of both the Hearing before me[263] and at the previous ventilation of that matter in this Tribunal.[264] In the absence of any written or oral evidence from Nephew AAA, it would be unsafe to allocate any measure of weight to this component of paragraph 9.4 of the Direction.

    [261] G1, p 91.

    [262] A1, p 76, para [176(d)].

    [263] Transcript, p 41, lines 23; p 52, lines 12-14.

    [264] G1, p 530, lines 41-44.

25. Mr Dean Burtin is a Scottish national who befriended the Applicant while they were both in immigration detention in Brisbane. His statement is in the material and is dated 31 October 2022.[265] They have known each other for about a year. Mr Burtin speaks positively of the Applicant because he says the Applicant attempted to introduce him to a process of rehabilitation via participation in the Smart Recovery program and via attendance at Narcotic Anonymous meetings. Mr Burtin says: ‘I am grateful for [the Applicant’s] kind heart and how he is always looking out for me.’[266] It is not safe to allocate any weight to Mr Burtin’s statement. The primary reason for this is that Mr Burtin is currently in immigration detention. Therefore, he is not an Australian citizen, an Australian permanent resident and nor does he have a right to remain in Australia indefinitely.

    [265] A17.

    [266] Ibid.

26. Mr Phillip Thon Ayom is President of the Dinka Bor Community Association in Queensland Inc. Mr Ayom’s statement appears in the material and is dated 15 April 2020.[267] He has known the Applicant’s family for about a decade. He says that he has had discussions with the Applicant’s family and has understood their strong desire for the Applicant to remain in Australia. He says that: ‘[the Applicant] and I have together spoken to his mother and sister who strongly advised me that [the Applicant] should come home to join them as he had no one to go back to since South Sudan is the country still in trouble.’[268] He concludes his statement with: ‘[the Applicant] said this would be his last offence to drink alcohol and cause any unnecessary and reckless activities in Australia and he promised that this would be his last foolish mistakes he had ever made in his life.’[269] Mr Ayom’s statement has little to say about how he would be impacted by the Applicant’s removal and, to my mind, is of moderate value in determining the allocation of weight to this component of paragraph 9.4 of the Direction. To whatever extent it may attract weight in favour of the Applicant, I predicate any such finding on Mr Ayom being an Australian citizen, an Australian permanent resident and nor does he have a right to remain in Australia indefinitely.

    [267] G1, pp 123-124.

    [268] G1, p 124.

    [269] Ibid.

1. Overall, this component of paragraph 9.4 of the Direction attracts only a moderate level of weight in favour of setting aside the decision under review.

   (2)  Impact on Australian business interests

2. Paragraph 9.4.2(3) compels an assessment of the Applicant’s employment links to Australia with particular reference to any impact his removal may have on, ‘Australian business interests’. I am of the view (and I find) that this component of Other Consideration (d) is not relevant.

   Weight allocable to Other Consideration (d): links to the Australian community

3. With reference to the first part of this Other Consideration (d) (the strength, nature and duration of the Applicant’s ties to Australia), I am of the view – after having analysed its three above-referred elements – that the totality of the evidence points to the allocation of a very heavy level of weight in favour of the Applicant. The second part of this Other Consideration (impact on Australian business interests) is not relevant. Overall, the Applicant’s links to the Australian community confers a very heavy level of weight in favour of setting aside the decision under review.

   Further Other Consideration (e): prolonged detention

   Indefinite detention in the context of this case

4. I accept the requirement for this Tribunal to take into account any legal consequence arising from its decision relating to the Applicant’s visa. I further accept that a consequence of my decision could involve the Applicant’s prolonged or indefinite detention. This consequence must be considered as a separate other consideration.[270] Section 189 of the Act provides that a non-revocation outcome in this application would result in the Applicant’s continued detention until his removal. Therefore, it is safe to find that a non-revocation outcome in this application could very well extend the Applicant’s time in an immigration detention facility.

   [270] VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921 at [16].

5. I have earlier found that the Applicant can, and probably will, apply for a protection visa in the event of an unsuccessful outcome in this application. It is statutorily certain that he would not be removed until the outcome of that protection visa application was known.[271] If he is ultimately unsuccessful in such a protection visa application and, given a scenario of an unsuccessful outcome in the instant proceeding, the likely reality will be that the Applicant will remain in immigration detention until another event ends that detention.

   [271] Section 198(5A) of the Act.

6. In terms of such an ‘event’ ending that detention, paragraph 9.1(3) of the Direction provides three possible alternatives to either the Applicant’s refoulement or his ongoing detention. They are:

   ·removal to another country; or

   ·the Minister exercising their personal discretion under s 195A of the Act to grant the Applicant, ‘another visa’; or

   ·the Minister exercising their personal discretion under s 197AB of the Act to make a residence determination enabling the Applicant to reside at a specified place in the community, subject to appropriate conditions.

7. Given (1) we do not know the outcome of any protection visa application, a possible outcome for the Applicant from this application is that he will be detained for a period with no chronologically fixed end point and (2) this prospect of prolonged or indefinite detention may weigh in favour of revocation, the question then becomes: what level of weight should this Tribunal allocate to this Other Consideration (e)?

8. On the one hand, it could be found that the weight allocable to this Other Consideration (e) should be moderated as a result of two things. First, paragraph 9.1(3) of the Direction relevantly provides that if the Applicant is able to apply for a protection visa, he would not be liable to be removed while such application is being processed and determined. If a protection finding is made, the Applicant would not be liable for removal unless and until any one of the following occur:

   ·the decision grounding the protection finding is quashed or set aside; or

   ·pursuant to s 197D of the Act, the Minister forms the view that the Applicant is no longer a person in respect of whom any protection finding for the purposes of
   s 197C(3) of the Act applies; or

   ·the Applicant asks the Minister, in writing, to be removed.

9. The visa currently held by the Applicant is not a type of protection visa. Given that it was this non-protection type visa that was cancelled, it means that the bar in s 48A of the Act does not apply to him and he is able to apply for a protection visa in the event this Tribunal does not set aside the decision under review.

10. Second, given that protection findings are yet to be made in relation to this Applicant, were this Tribunal to affirm the decision under review, the Applicant would most likely remain in immigration detention until:

    ·he applies for and is granted a protection visa; or

    ·one of the events in s 197C(3)(c) occurs; or

    ·the Minister exercises their personal powers to grant another visa to the Applicant; or

    ·the Minister makes a residence determination in respect of the Applicant.

11. If the Applicant succeeds in obtaining a protection visa, then his time in detention will end. If he is unsuccessful then it must be accepted that a legal consequence of this Tribunal affirming the decision under review is that the Applicant will be detained for an unknown period or until one of the three abovementioned alternatives at paragraph 9.1(3) of the Direction occur. If none of those three alternatives occur, the Applicant may well remain in immigration detention without a fixed end point. I am of the view (and I find) that this Other Consideration (e) carries a heavy level of weight in favour of restoring the Applicant’s visa status to remain here.

12. One wonders what is to be gained – either for the Applicant or the community – by the continued detention (without a defined end date) of an otherwise able-bodied 29 year old person who is keen to mirror the achievements of his family and who asks for a further opportunity to do so. He surely knows that further offending will, in all probability, re-visit the current scenario of an existential attack on his visa status to remain here. The ongoing detention of this 29 year old and able-bodied Applicant involves a plethora of negative outcomes for (1) him, because it denies him the opportunity to emulate the achievements of his family in Australia; (2) his family, because they are denied an opportunity to have the Applicant as a son, brother or uncle in their lives; and (3) the Australian community, who will be compelled to bare the non-inconsiderable cost of keeping the Applicant in immigration detention with no defined end-date.[272]

    [272] See generally, A1, pp 94-95, paras [229]-[230].

    Findings: Other Considerations

13. The application of the Other Considerations in the present matter can be summarised as follows:

    (a)international non-refoulement obligations: is of a moderate level of weight in favour of setting aside the decision under review;

    (b)extent of impediments if removed: is of a heavy level of weight in favour of setting aside the decision under review;

    (c)impact on victims: is not relevant; and  

    (d)links to the Australian community: is of a very heavy level of weight in favour of setting aside the decision under review;

    (e)prolonged or indefinite detention: is of a heavy level of weight in favour setting aside the decision under review.

    CONCLUSION

14. Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted above, the Applicant does not pass the character test.

15. In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:

    ·Primary Consideration 1: weighs against the Applicant - but not necessarily in any determinative sense - in favour of affirming the decision under review;

    ·Primary Consideration 2: weighs against the Applicant - but not necessarily in any determinative sense - in favour of affirming the decision under review;

    ·Primary Consideration 3: is of a strong level of weight in favour of setting aside the decision under review;

    ·Primary Consideration 4: weighs against the Applicant - but not necessarily in any determinative sense - in favour of affirming the decision under review;

16. I have outlined the weight attributable to the Other Considerations. I am  of the view (and I find) that the combined weight I have allocated to each of Primary Considerations 1, 2 and 4, respectively, is  not sufficient to outweigh the combined very heavy weight I have allocated to each of Primary Consideration 3 and Other Considerations (a), (b), (d) and the Further Other Consideration (e);

17. A holistic view of the evidence relevant to the Primary and Other Considerations in the Direction therefore favours setting aside of the Respondent’s decision under review made on 12 April 2021.

    Decision

18. Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision made by the delegate of the Respondent dated 12 April 2021 and substitutes it with a decision to revoke the cancellation of the Applicant’s visa.

I certify that the preceding 321 (three hundred and twenty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

....................................

Associate

Dated: 2 March 2023

Date(s) of hearing:	12 and 13 December 2022
Solicitors for the Applicant:	Mr Eric Zhang (Solicitor) Mr Zaki Omar (Special Counsel)
Human Rights for All
Solicitors for the Respondent:	Mr Jake Kyranis (Senior Associate)
Spark Helmore Lawyers

Annexure A

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
RG1	Remittal Bundle ((G)1-39, paged 1-754)	R	Various	16 Sep 2022
RR1	Respondent’s Statement of Facts, Issues and Contentions (Paged 1-25)	R	18 Nov 2022	18 Nov 2022
RR2	BITA Security Footage	R	-	4 June 2021
A1	Applicant’s Statement of Facts, Issues and Contentions (Paged 1-99)	A	31 Oct 2022	31 Oct 2022
A2	Applicant’s Reply Submissions (Paged 1-20)	A	28 Nov 2022	28 Nov 2022
A2.1	Applicant’s Amended Reply Submissions (Paged 1-20)	A	28 Nov 2022	28 Nov 2022
A3	Confidential Report by QPASTT Counsellor Elise McKenzie	A	2 Sep 2022	31 Oct 2022
A4	Confidential Letter by QPASTT Counsellor Elise McKenzie	A	11 Oct 2022	31 Oct 2022
A5	Expert Psychologist Report of Dr Emily Kwok (Paged 1-14)	A	10 Oct 2022	31 Oct 2022
A6	Expert Psychologist Report of Dr Emily Kwok	A	25 Nov 2022	28 Nov 2022
A7	Statutory Declaration of the Applicant	A	25 Oct 2022	31 Oct 2022
RA8	Statutory Declaration of Brother D	A	30 Oct 2022	31 Oct 2022
RA8.1	Statutory Declaration of Brother D Amended	A	30 Oct 2022	31 Oct 2022
A9	Statutory Declaration of Brother A	A	31 Oct 2022	31 Oct 2022
A10	Statutory Declaration of Brother B	A	31 Oct 2022	31 Oct 2022
A11	Statutory Declaration of Sister K	A	30 Oct 2022	31 Oct 2022
A12	Statutory Declaration of Sister A	A	30 Oct 2022	31 Oct 2022
A13	Statutory Declaration of Applicant’s mother	A	30 Oct 2022	31 Oct 2022
A14	Statutory Declaration of Child P	A	30 Oct 2022	31 Oct 2022
A15	Statutory Declaration of AH	A	28 Oct 2022	31 Oct 2022
A16	Statutory Declaration of Brother K	A	31 Oct 2022	31 Oct 2022
A17	Statement of Dean Buntin	A	31 Oct 2022	31 Oct 2022
A18	Secondary Statutory Declaration of the Applicant	A	28 Nov 2022	28 Nov 2022
A19	Secondary Statutory Declaration of Sister K	A	28 Nov 2022	28 Nov 2022
A20	Secondary Statutory Declaration of Sister A	A	28 Nov 2022	28 Nov 2022
A21	Secondary Statutory Declaration of Applicant’s mother	A	28 Nov 2022	28 Nov 2022
(AB) Applicant Tender Bundle
AB22	Applicant Tender Bundle Volume 1 (Paged 1-107)	A	Various	31 Oct 2022
AB23	Applicant Tender Bundle Volume 2 (Paged 1-667)	A	Various	28 Nov 2022
AB24	Applicant Tender Bundle Volume 3 (Paged 1-59)	A	Various	31 Oct 2022
(AB) Applicant Authorities Tender Bundle
AB25	Applicant Bundle of Authorities Volume 1 (Paged 1-1627)	A	Various	31 Oct 2022
AB26	Applicant Bundle of Authorities Volume 2 (Paged 1-431)	A	Various	31 Oct 2022
AB27	Applicant Bundle of Authorities Volume 3 (Paged 1-1304)	A	Various	31 Oct 2022
AB28	Applicant Bundle of Authorities Volume 4 (Paged 1-409)	A	Various	31 Oct 2022
Further Material
A29	Further Supplementary Psychologist Report of Emily Kwok	A	7 Dec 2022	6 Dec 2022
A30	Third Statutory Declaration of the Applicant	A	7 Dec 2022	7 Dec 2022
A31	Further QPASTT Report (Paged 1-3)	A	8 Dec 2022	8 Dec 2022