CRPS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

CRPS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 872 (2 April 2020)
Division:GENERAL DIVISION
File Number: 2020/0143
Re:CRPS
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Tavoularis
Date:2 April 2020
Place:Sydney

The decision under review is affirmed.
........................[sgd]................................................
Senior Member Tavoularis
Contents
Decision
Catchwords
Legislation
Cases
Secondary Materials
introduction and background
ISSUES
Does the Applicant pass the character test?
Is there another reason for the revocation of the cancellation of the Applicant’s Visa?
Primary Consideration A – Protection of the Australian Community
The Nature and Seriousness of the Applicant’s Conduct to Date
Summary of the Applicant’s Criminal History and Other Conduct
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Report of Dr Yoxall
The Applicant’s Evidence
The other witnesses – Mr H
The other witnesses – The Applicant’s Wife
The other witnesses – Ms MM
The other witnesses – Mrs LW
Summary of findings as to risk of re-offending
Conclusion: Primary Consideration A
Primary Consideration B: The Best Interests of Minor Children in Australia
The Applicant’s written evidence
The Applicant’s evidence in cross-examination
Application of Factors in Paragraph 13.2(4) of the Direction
Conclusion: Primary Consideration B
Primary Consideration C: The Expectations of the Australian Community
The relevant paragraphs in the Direction
Factual circumstances relevant to this Primary Consideration C
The Evolution of the Australian Community’s “Expectations”
Analysis – Allocation of Weight to this Primary Consideration C
Conclusion: Primary Consideration C
Other Considerations
(a) International non-refoulement obligations
The Applicant’s position prior to commencement of this hearing
The Applicant’s position at this hearing
Assessment of the Applicant’s claims
(b) Strength, nature and duration of ties
(c) Impact on Australian business interests
(d) Impact on victims
(e) Extent of impediments if removed
Conclusion
Decision
Annexure A
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a student visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – other considerations - consideration of Ministerial Direction No. 79 – decision under review affirmed.
LEGISLATION
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Ali v Minister for Immigration and Border Protection [2018] FCA 650
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Greene v Assistant Minister for Home Affairs [2018] FCA 919
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Home Affairs v Omar [2019] FCAFC 188
Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
SECONDARY MATERIALS
DFAT Country Information Report: Zimbabwe’ (current to 19 December 2019)
Direction No 75 – Refusal of Protection Visas Relying on Section 36(1c) and Section 36(2c)(b)
Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member Tavoularis
2 April 2020
INTRODUCTION AND BACKGROUND

CRPS (“the Applicant”) is a 30 year old citizen of Zimbabwe.[1] Movement records indicate that the Applicant first arrived in Australia in May 2015 and has left Australia once (on 19 January 2016), with his most recent arrival date being 6 February 2016.[2] Upon entry into Australia on that day he was granted a Class/Subclass: TU-573P440. That visa ceased on 2 August 2017 whereupon he was granted a Class WA Subclass 010 – Bridging Visa.[3]
[1]     Exhibit R2, s 501 G-Documents, G39, page 179.
[2]     Ibid.
[3]     Ibid.
In terms of an offending history, the Applicant’s actual period of offending is relatively short. However, his history, while spanning the period 12 January 2017 to 20 May 2019, nevertheless discloses some 34 offences nearly all of which involve the obtaining of a financial advantage by dishonest and deceptive means.[4]
[4] Ibid, G6, pages 24-26. There is just the one non-dishonest/deceptive offence appearing in the history; on 24 April 2018, the Applicant was sentenced to a fine of $300 for “Drive, licence suspended under s 66 Fines Act – 1^st offence”.
The first phase of his offending (12 January 2017 to 24 April 2018) saw the sentencing authorities impose non-custodial sentences primarily in the form of: (1) bonds predicated on the Applicant taking certain remedial steps; (2) intensive correction orders for defined periods; and (3) a fine.[5]
[5] Ibid.
The second phase of his offending (up to 6 June 2018) involved the commission of four offences for “Dishonestly obtain financial advantage etc by deception-T1” dealt with by the Newtown Local Court (all on 6 June 2018). The sentencing regime for each of the three offences may be stated thus:
·Imprisonment: 8 months commencing 6 June 2018 and concluding on 5 February 2019. A non-parole period with conditions running for a period of 6 months commencing on 6 June 2018 and concluding 5 December 2018. No order for compensation was imposed;
·Imprisonment: 16 months commencing 6 June 2018 and concluding on 5 October 2019. A non-parole period with conditions running for a period of 8 months commencing on 6 June 2018 and concluding on 5 February 2019. There was an order for the Applicant to pay compensation in the sum of $1, 300;
·Imprisonment: 14 months commencing 6 June 2018 and concluding 5 August 2019. A non-parole period with conditions was imposed to run for 8 months commencing on 6 June 2018 and concluding on 5 February 2019. There was an order for the Applicant to pay compensation in the sum of $1, 000; and
·Imprisonment: 12 months commencing 6 June 2018 and concluding 5 June 2019. A non-parole period with conditions was imposed to run for 8 months commencing on 6 June 2018 and concluding on 5 February 2019. There was no order for compensation.[6]
[6] Ibid.
The third phase of the Applicant’s offending initially came before the Waverley Local Court for sentencing on 25 March 2019. The Applicant appealed the severity of the sentencing regime imposed upon him on that day to the Downing Centre District Court. On 25 May 2019, the Downing Centre District Court imposed respective sentences for some 19 offences of a predominantly dishonest/deceptive nature. Of those 19 offences, two involved “Deal with identity info to commit etc indictable offence”. The sentencing regime imposed by the Downing Centre District Court makes for sober reading. It is particularised in significant detail in Annexure A to the Respondent’s Statement of Facts, Issues and Contentions (“SFIC”) which comprises Exhibit R1 to these proceedings.
In short compass, this third phase resulted in a sentencing regime involving:
·the commission of 17 offences that can be described as “Dishonestly obtain financial advantage etc by deception”;
·for the commission of those 17 offences, the Applicant was sentenced to cumulative custodial terms totalling an approximate custodial period of 174 months or 14.5 years;
·for the commission of those 17 offences, the Applicant was ordered to pay the total sum of compensation comprising $41,140;
·the commission of two offences that can be described as “Deal with identity info to commit etc indictable offence”; and
·for the commission of these two immediately preceding offences, the Applicant was sentenced to cumulative custodial terms totalling an approximate custodial period of 12 months.
In summary, therefore, the totality of the Applicant’s offending across its three phases has:
·resulted in the imposition of 10 non-custodial sentences in the form of a bond, multiple intensive correction orders, and a fine;
·seen him sentenced to 236 months of custodial time which equates to approximately 20 years; and
·resulted in the imposition of orders for him to pay compensation in the total sum of $89,037.
After serving his time in criminal custody, the Applicant was taken into immigration detention on 24 July 2019.[7]
[7] Transcript, 18 March 2020, page 32, line 46 and page 33, lines 1-2.
While serving a term of imprisonment (i.e., criminal custody), a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Minister” or “the Respondent”), pursuant to s 501(3A) of the Migration Act 1958 (Cth) (“the Act”), decided on 13 September 2018 to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test.[8]
[8] Exhibit R1, Respondent’s SFIC, page 1, paragraph [3].
On 17 October 2018, the Minister’s Department received correspondence from the Applicant requesting revocation of the decision to mandatorily cancel his visa.[9] The delegate of the Minister decided on 8 January 2020, pursuant to s 501CA(4) of the Act not to revoke the cancellation of the subject visa.[10]
[9] Exhibit R2, s 501 G-Documents, G11, page 80–86.
[10] Ibid, G4, page 9.
The Applicant lodged an application with this Tribunal on 9 January 2020 seeking a review of the abovementioned decision dated 8 January 2020 not to revoke the cancellation of his visa.[11] The Tribunal has jurisdiction to review this decision pursuant to s 500(1)(ba) of the Act.[12]
[11] Ibid, G1, pages 1–5.
[12] For the Tribunal to have jurisdiction to review the decision, the Applicant must also have lodged the application for review with the Tribunal within nine days after the day on which he or she received notification of the decision – see s 500(6B) of the Act.
The hearing of the instant application proceeded on 18 and 19 March 2020. The hearing received oral evidence from the: (1) Applicant as well as; (2) from his spouse; (3) a male family friend/mentor; (4) his sister-in-law and; (5) a female family friend. The Respondent called one witness, “Mr MY”, who is a victim of the Applicant’s offending.
The Tribunal also received written evidence. This written evidence was particularised into an exhibit list, a true and correct copy of which is attached to these Reasons and marked “Annexure A”.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(4)       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.
There is no question 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. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[13]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[14]
[13] [2018] FCAFC 151.
[14] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[15] I will address each of these grounds in turn.
[15] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
Having regard to the abovementioned summary of the Applicant’s offending, with particular reference to the cumulative total of custodial terms imposed on him involving almost 20 years of custodial time, it is beyond argument that the Applicant does not pass the character test by virtue of his “substantial criminal record” as that term is defined in

s 501(7) of the Act. He clearly does not pass the character test pursuant to 501(6)(a) of the Act.
Prior to and at the hearing the Applicant did not cavil with the contention that he did not pass the character test due to the application of s 501(7)(c) of the Act and its definition of a “substantial criminal record”. In his SFIC, the Applicant makes this concession: “I accept that, based solely on my criminal record, I do not pass the character test.”[16]
[16] Exhibit A1, Applicant’s SFIC, page 2, paragraph [3].
Of the myriad of custodial sentences imposed on the Applicant, many of them involved his early release on parole after serving a stipulated custodial period. Be that as it may, what matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they have actually served.[17]
[17] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416; See also s 501(7A) of the Act which relevantly provides: “(7A) Concurrent sentences For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms. Example: A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.”
I am consequently satisfied that the Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
IS THERE ANOTHER REASON FOR THE REVOCATION OF THE CANCELLATION OF THE APPLICANT’S VISA?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction” or “Direction 79”) has application.[18] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:[19]
(1)…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
[18] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79.
[19] The Direction, sub-paragraph 7(1)(b).
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
a)    Protection of the Australian community from criminal or other serious conduct;
b)    The best interests of minor children in Australia;
c)    Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a

non-exhaustive list in paragraph 14 of the Direction. These considerations are:
a)    International non-refoulement obligations;
b)    Strength, nature and duration of ties;
c)    Impact on Australian business interests;
d)    Impact on victims;
e)    Extent of impediments if removed.
I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[20]
“…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
[20] [2018] FCA 594 at [23].
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
(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)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.

I will now turn to addressing these considerations.
Primary Consideration A – Protection of the Australian Community
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens. Further, this paragraph stipulates an expectation that those non-citizens 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.
In determining whether the mandatory cancellation of an Applicant’s visa serves to protect the Australian community, this paragraph of the Direction points out to decision-makers that mandatory cancellation “without notice of certain non-citizen prisoners is consistent” with the abovementioned principle that: (a) it must be acknowledged that remaining in Australia is a privilege conferred on non-citizens in this country; and (b) that those non-citizens must not abuse that privilege by breaking this country’s laws or by otherwise disrespecting its important institutions.
In determining the weight applicable to this Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
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.
In making these assessments, it is necessary to have regard to the Applicant’s criminal history. The totality of the Applicant’s offending and other serious conduct can be gleaned from the following documents[21] now before the Tribunal:
[21]    The following list includes documents directly relating to the Applicant’s offending as well as ancillary documents dealing with that offending.
(a)his criminal history which appears in a document entitled “Check Results Report” from the Criminal Intelligence Commission;[22]
[22]    Exhibit R2, s 501 G-Documents, G6, 24–26.
(b)the Tender Bundle of material produced by the Respondent (comprising pages numbered 1–331) which contains:
(i)TB1 Excerpts from documents produced under summons by the Newcastle Local Court;
(ii)TB2 Excerpts from documents produced under summons by Newtown Local Court;
(iii)TB3 Excerpts from documents produced under summons by NSW Police Force; and
(iv)TB4 Excerpts from documents produced under summons by NSW Department of Justice;
(v)TB5 DFAT Country Information Report – Zimbabwe;
(vi)TB6 Detention Centre Visitor Log;
(vii)TB7 Department’s Protection Visa Decision Record;
(viii)TB8 Tribunal’s Notification of Decision;
(ix)TB9 Tribunal Decision Record;
(x)TB10 Visa Detail Form for the Applicant’s Spouse.
sentencing remarks of Her Honour Ms Huntsman, Stipendiary Magistrate (‘SM’), Newtown Local Court.[23]
[23]    Exhibit R2, s 501 G-Documents, G8, pages 59–66.
As mentioned earlier, the material discloses that between 12 January 2017 and 20 May 2019, the Applicant came before the courts for sentencing on five occasions and that he has convictions recorded for 34 offences capable of characterisation as: (1) “Dishonestly obtain financial advantage etc by deception”; (2) “Drive, licence suspended under s 66 Fines Act – first off”; and (3) “Deal with identity info to commit etc. indictable offence”.
Broadly stated, this offending involves: (1) an offence in relation to the operation of a motor vehicle; and (2) a significant number of offences against the property of others by means of deception and deceit.
Further, the Applicant’s conduct while in criminal custody has resulted in at least three instances involving the recording and reporting of the conduct in formal documents. Those instances of misconduct occurred on 17 October 2018, 21 April 2019 and 20 May 2019. I will refer to this particular conduct later in these Reasons.
The Nature and Seriousness of the Applicant’s Conduct to Date
The Applicant gave oral evidence at the hearing. Prior to being taken to specific instances of his offending, the following exchange ensued between him and the Respondent’s representative.[24]
“MR ESKERIE: All right. Good morning again CRPS?
APPLICANT: Good morning.
MR ESKERIE: Now, I just wanted to be clear about a couple of things. You’re clearly a highly educated man, and you’ve reviewed the material. You do not deny, do you, the facts set out in the fact sheets or the sentencing remarks that are in the bundles before the tribunal?
APPLICANT: No, I do not dispute them.
MR ESKERIE: Ok. So you accept that all of that material accurately sets out the, all the previous offending and events?
APPLICANT: I accept it, but, how do I say it, for example, there are certain one or two statements that I do not recall saying. But I am also alluding to the fact that when those statements were made I was under - I was a pathological gambler - so I do accept, yes.”[25]
[24] Mr K Eskerie, Partner, Sparke Helmore, Solicitors for the Respondent.
[25] Transcript, 16 March 2020, page 8, lines 34–45.
Summary of the Applicant’s Criminal History and Other Conduct
The nature of the Applicant’s offending is such as to immediately attract the attention of the Principles appearing at Paragraph 6.3 of the Direction. Principle (1) refers to Australia’s sovereign right to determine whether non-citizens who are of character concern are to be allowed to enter into and/or remain in Australia. Principle (2) refers to the Australian community’s expectation that the Australian Government should cancel the visas of non-citizens if they commit serious crimes in Australia or elsewhere. Principle (4) mandates that in some circumstances the nature of a non-citizen’s criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. Principle (5) enshrines the reality of Australia’s low tolerance of any criminal or other serious conduct by a non-citizen who has been participating in, and contributing to, the Australian community only for a short period of time.
In the instant case, the Applicant arrived in Australia in May 2015. As early as

6 December 2015, little more than half a year after he arrived here, the Applicant was the subject of police enquiry for alleged fraudulent conduct in the context of a Bitcoin exchange with another person. The nature of this offending conduct seemed an ominous portent to what transpired during the remainder of the Applicant’s offending history. The conduct was referred to as “actual fraud” in the Incident Details of the relevant police report. While the incident was reported, the investigating police concluded that in terms of the episode’s “Clear Up Status” that “no further investigation” was required.[26]
[26] Exhibit R4, Tender Bundle, TB3, page 107.
There followed a brief period of the Applicant’s absence from Australia running from

19 January 2016 until 6 February 2016. Be that as it may, it cannot be denied that the Applicant’s offending history continued after his re-entry into Australia and continued until the middle part of 2018 at which time his offending saw him incarcerated. He has been permanently removed from the Australian community – be it in either criminal custody or immigration detention – since mid-2018. While it may be possible to say that there was a hiatus (of sorts) in the Applicant’s offending conduct during the period from approximately mid-2016 until early 2017, the Applicant’s fraudulent and deceitful conduct resumed in April 2017.
The material makes plain that while he has resided in Australia for a relatively short period, having arrived here in his mid-twenties, he commenced offending very soon after his arrival. His offending and his removal from the Australian community for that offending have been the primary features of his time in this country. Principle (6) of Paragraph 6.3 of the Direction mandates that Australia has a low tolerance of any criminal or other serious conduct by a non-citizen holding a limited stay visa reflecting that there should be no expectation that such people should be allowed to remain permanently in Australia.
Here, the Applicant was residing in Australia pursuant to a one of the most limited forms of visa, that is, a bridging visa. But for the mandatory cancellation of that bridging visa, it would simply have expired due to its limited shelf life. By the time of the hearing of this Application, the Applicant had been in this country for almost five years. The totality of his offending has seen custodial terms imposed upon him in the cumulative amount of almost 20 years – almost quadruple the time he has spent here. His offending has caused him to be removed from the Australian community for almost two of the five years he has been here.
I have no difficulty in concurring with the Respondent’s submission that this Applicant’s offending is “extremely serious”[27] and that it “…is serious in its cumulative effect on people…” as can be illustrated by an application of the relevant factors contained in Paragraph 13.1.1(1) of the Direction.
Application of Factors in Paragraph 13.1.1(1) of the Direction
[27] Transcript, Day 2, 19 March 2020, page 97, lines 37–38.
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:
(a)…
(b)…
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the positions they hold, or in the performance of their duties, are serious;
(d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)…
(h)…
(i)…
Sub-paragraph (a) of Paragraph 13.1.1(1) of the Direction provides that crimes of a violent and/or sexual nature are viewed very seriously. The Applicant’s criminal history is not redolent of a propensity towards violence. It is predominantly a history involving dishonest and deceitful conduct for personal gain. This sub-paragraph (a) is not relevant to determination of this Application.
Sub-paragraph (b) of Paragraph 13.1.1(1) of the Direction provides that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed. Here, there has been no violent conduct towards women and/or children and this sub-paragraph (b) is thus not relevant to determination of this Application.
Sub-paragraph (c) of Paragraph 13.1.1(1) of the Direction provides that “crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the positions they hold, or in the performance of their duties, are serious.” The material indicates that the Applicant targeted his victims and dealt with them via a deliberate and intentional methodology tailored towards giving him the best possible chance of successfully relieving them of funds.
In the New South Wales Police Facts Sheet, dated 10 November 2018, the police recorded the Applicant saying:
“The Accused stated that he ‘picks’ young Asian students in a means to obtain funds. He believes that Asian students are naïve and willing to provide him with money, labelling them as ‘easy’ targets.”[28]
[My underlining]
[28] Exhibit R2, s 501 G-Documents, G7, page 42.
Similarly, the learned sentencing Magistrate who sentenced the Applicant on 6 June 2018 (Ms Huntsman SM), noted that his conduct was “… exploitative, premeditated form of fraud against vulnerable overseas students… “[29].
[My underlining]
[29] Ibid; G8, page 63, lines 31-32.
A further factor in the evidence indicative of the Applicant’s premeditated intention to defraud a sector of the community that he regarded as vulnerable can clearly be seen from the manner in which he approached his victims. He did so not only by reference to falsified Chinese identity documents, but also by way of reference to Chinese payment platforms and by reference to Chinese currency.
The level of contrivance and brazenness evident from his modus operandi towards international students from Asia is also indicative of his conviction that they were firstly, gullible, and, ultimately, vulnerable. His approach to his victims were predicated on an asserted need for cash for urgent financial relief, usually for emergent reasons involving a family member who was unwell or a desperate requirement to pay rent or to complete a university task. He further contrived an inability to access cash himself and sought to induce his victims to do so on his behalf. On each occasion, his intention was to cause the victim to withdraw the money, but to never repay them. The contrivance extended to showing victims a false screenshot of a purported internet bank transfer of funds into the victim’s personal account in purported repayment.
I do not accept the Applicant’s contention that his fraudulent and deceitful conduct was exclusively that of a man desperately seeking to feed a gambling addiction. I do not accept the Applicant’s attempt to resile from what the police specifically recorded him as having told them – that is, that he specifically targeted Asian students because he thought them “naïve” and “easy targets”. He is on his own in making that sort of contention.
To my mind, the evidence unquestionably points to a reality that the Applicant’s deceitful, dishonest and fraudulent offending towards international students from Asia does constitute offending against vulnerable members of the community – or, at the very least, members of the community that he regarded as vulnerable. The conduct is at once inexcusable and despicable. It weights very heavily in favour of a finding that the Applicant’s conduct should be viewed extremely seriously.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraph (b) of paragraph 13.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of a given offence committed by an Applicant.
Earlier in these Reasons, I have sought to compartmentalise the Applicant’s offending into three phases. The first (running from January 2017 to April 2018) saw him sentenced for non-custodial sentences comprising a bond, intensive correction orders, and a fine. The second phase (up to 6 June 2018) involved the commission of approximately four offences of dishonesty/deception. For that phase of his offending, the sentencing authorities imposed cumulative custodial terms amounting to 50 months (or just over 4 years). The third phase of his offending saw him commit 17 offences of deceit/dishonesty/fraud and two offences relating to “Deal with identity info to commit an indictable offence”. This phase of his offending saw him sentenced to 186 months imprisonment (or 15.5 years).
For the totality of his offending in this country, the sentences imposed by the courts for the crimes of this Applicant, stated on a cumulative basis, approximate 20 years of custodial time. In terms of “actual time served”, his criminal offending has seen him removed from the Australian community for something like one-quarter to one-third of the five years he has been here. This does not include the time he has spent in immigration detention. Thus, the sentences imposed by the courts for the crimes of this Applicant clearly militate in favour of a finding that his offending has been of an extremely serious nature.
Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points a decision-maker to the frequency of non-citizen’s offending and whether there is any trend of increasing seriousness. To an extent, the investigatory exercise required by this sub-paragraph (e) largely mirrors that required by the immediately preceding sub-paragraph (d). This is because any increasing trend in the seriousness of the offending is usually analogous to the regime of sentencing imposed for it.
I will deal firstly with the frequency of the Applicant’s offending. This Applicant is now 30 years of age. He began offending very soon after his arrival in Australia in 2015. His criminal history detailing the sentencing regimes and other measures imposed by the courts for his offending spans the period from January 2017 to May 2019. Although not lengthy in terms of its timespan, the Applicant’s offending history does contain a significant number of offending episodes. Put simply, the Applicant is an extremely frequent offender and the nature of his offending was serious to very serious at its commencement. It has become extremely serious offending in the course of its evolution.
While the first phase of his offending involved the imposition of a bond and respective intensive corrections orders it also involved the sentencing authorities making respective compensation orders in the sum of $350, $24,755 and $20,232. This gives a total of $45, 337. The second phase of the Applicant’s offending involved the commission of four offences with respective compensation orders totalling $2,300. The third phase of the Applicant’s offending involved the commission of 19 offences with respective compensation orders totalling $41,140.
The first phase of the Applicant’s offending saw the imposition of non-custodial sentences. He failed to glean any benefit or to experience any deterrent effect from those non-custodial sentences. He proceeded to continue his criminal offending in the realm of dishonesty/deception and fraud and was then sentenced to custodial terms totalling 50 months. Again, he failed to experience any deterrent effect or benefit from the imposition of sentences requiring him to serve actual custodial time. Ultimately, and most seriously, he committed a series of almost identical fraudulent/dishonest/deceptive offences that saw him sentenced to cumulative custodial terms of 186 months (or 15.5 years).
There can be no argument that this Applicant, for the less than five years he has spent in the Australian community, has been a very frequent offender. Is there a trend of increasing seriousness? While the trend of increasing seriousness of the Applicant’s offending may not be readily apparent in the actual sums defrauded, it is apparent in its level of sophistication. His later offending culminates in approaching victims by reference to falsified Chinese identity documents. Ultimately, the Applicant misled a sentencing court because he produced a document purporting to show he had made restitution by way of a bank transfer. That purported payment has now been confirmed to be fraud.
The severe seriousness of the Applicant’s conduct and the damaging and appalling impact on his victims has been apparent from its commencement. Very shortly after his arrival in this country, he has demonstrated a predisposition towards making his way in the world by deceitfully, dishonestly and fraudulently targeting victims he regards as gullible and vulnerable and relieving them of their hard-earned money.
There can be no other finding other than that an application of this sub-paragraph (e) clearly demonstrates that this Applicant’s offending has been: (1) very frequent; (2) very serious from its outset; and (3) extremely serious in the most recent phases of its evolution. This factor weighs very heavily in favour of a finding that, viewed in its totality, this Applicant’s offending is of an extremely serious nature.

Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending.
The evidence is replete with respective cumulative effects arising from the Applicant’s repeated and extremely serious offending. First, one of its cumulative effects can be gleaned from the impact it has had on victims. Relatively rarely for applications of this type, the Respondent called a witness. This witness, Mr MY, provided an affirmed affidavit and attended the hearing in person to give oral evidence and to subject himself to cross-examination. He is to be commended for doing so.
In his affidavit, Mr MY sets out the very real and very serious impact that the Applicant’s offending has had on both him and his family. There should be no misapprehension about the financial disposition of this victim. We are not talking about an idle rich student from Asia availing himself of education opportunities in Australia just because he is financially able to do so. In paragraph [6] of his affidavit, Mr MY makes plain the devastating financial and emotional impact the Applicant’s unlawful conduct has had on both him and his family:
“6. When I told my parents what happened this caused lots of tension in my family and for a while we stopped speaking. The money I lost was the money needed to pay for my school fees. If we could not pay for my school fees, I would breach my visa and have to return to China. Eventually, we were able to borrow money from other relatives to pay for my school fees. We are borrowing this money at the very high interest rate of 12%.”[30]
[30] Exhibit R3, Affidavit of Mr MY, Affirmed 17 March 2020, page 2, paragraph [6].
Mr MY’s affidavit goes on to outline the lengths to which he has been forced to go in order to try and recover the money dishonestly and criminally taken from him by the Applicant. There has been a letter of demand, a garnishee order, an examination notice, a personal attendance by Mr MY at the Applicant’s last known residential address – none of which has yielded a single dollar of recompense from the Applicant. As Mr MY says, the legal process of recovery has yielded nothing:
“9. I am yet to receive any money from [the Applicant] despite all my efforts.
10. In total, [the Applicant] owes $13,000 which includes interest and fees arising from court processing fees, the application for judgment, examination order, and garnishee orders.”[31]
[31] Ibid, page 3, paragraphs [9]–[10].
Mr MY presented and impressed as a witness of truth and conviction. It is clear from both his oral and written evidence that he has, despite the Applicant’s despicable conduct towards him, always tried to give the Applicant the benefit of the doubt and, specifically, to give him a genuine opportunity to show some measure of remorse by making some measure of a financial contribution towards retiring the $13,000 he owes to Mr MY.
Astonishingly, the Applicant has seen fit to try and characterise Mr MY’s request for some show of good faith by way of even a small payment towards the debt, as conduct amounting to blackmail or extortion. Put simply, Mr MY, prior to the hearing, told the Applicant to pay at least something as a sign of good faith. Instead of grasping that opportunity of having one of his victims possibly speaking positively about him at a hearing like this, the Applicant has purported to artificially turn all of that around and

mis-characterise it as Mr MY trying to blackmail him or extort money from him.
It is, to my mind, undeniable that this sort of conduct is clearly demonstrative of the Applicant having a patent lack of insight into: (1) the nature and effect of his offending on other people; and (2) the Applicant having absolutely no intention of compensating any of his victims from whom he unlawfully took money. As Mr MY says:
“11. I do not think [the Applicant] has any intention to pay me back the money. If he did he would have at least saved some money in his account or responded to my attempts to contact him. I believe [the Applicant] will continue to steal money if he is released from detention.
12. I am a visa holder and I work hard to study and support myself here in Australia. I comply with my visa conditions. [The Applicant] has not and as a result should not be allowed to stay.
13. I would be relieved if [the Applicant’s] visa remained cancelled.”[32]
[32] Ibid, page 3, paragraphs [11]–[13].
Another cumulative effect of the Applicant’s offending can be seen from its impacts on other victims. At page 89 of the Tender Bundle now before the Tribunal as Exhibit R4, there is evidence from a victim who was a single mother. She said the following to the police:
“… Im a single mother that worked really hard to buy this asset a few months ago and now has the need to move house and leave a deposit etc. This is the reason why I have decided to sell it to cover these expenses. I am now finding myself in a very difficult position financially to be able to afford my upcoming expenses and I hope someone in your side can help me. Im also confident to say this person is samming a lot of people in the same manner. Thank you…”[33]
[Errors in original]
[33] Exhibit R4, Tender Bundle, TB3, page 89.
In the case of this victim, she has been forced to divest herself of something she had saved her money to buy and enjoy in order to recover the funds despicably and unlawfully taken from her by the Applicant.
A disturbing aspect of the Applicant’s pattern of offending is that he has perpetrated his unlawful conduct on the same victims on multiple occasions. It was not enough for him to deceive them once. He felt compelled to deceitfully relieve them of their funds time and again. It is clear from the COPS Reports[34] that his offending has, at its core, deliberately dishonest and deceitful conduct based on careful planning, manipulation of victims and execution of a premeditated methodology.
[34] The Comprehensive Operational Policing System database.
This significant feature and effect of the Applicant’s unlawful conduct was not lost on the learned sentencing Magistrate (Ms Huntsman SM) who dealt with the Applicant at the Newtown Local Court on 6 June 2018. During the sentencing hearing before

Ms Huntsman SM the Applicant’s own legal representative was similarly cognisant of the nature of the Applicant’s offending. He said:
“… Your Honour, the evidence is aggravated as it displays a level of sophistication and planning similar to his previous offences, and gambling addiction as noted by the counsellor is not a mitigating factor in sentencing, your Honour.”[35]
[35] Exhibit R2, s 501 G-Documents, G8, page 61, lines 46–49.
The learned Ms Huntsman SM noted these things in her sentencing remarks. None of them do the Applicant any favours:
“HER HONOUR: I am thinking about what I should do.
Can I indicate the problem is this he’s on a s 9 bond. That’s an aggravating feature on the first set of recent matters. It’s repeated conduct. I’ve got the breach of bond papers and I don’t know what was before the Court with the ICO, because I haven’t got any details of that, but on the breach of bond papers there’s numerous reports about how he sees gambling and the intensive therapy he’s done which the Court must have taken into account given so many offences of fraud, in placing him on an ICO and a supervised bond. The intention of the supervised bond must have been to give a period of time of the rehab to continue past the term of the ICO.
It didn’t, and the really aggravating feature is that the second offences occur whilst he’s on bail and awaiting sentence for these offences, and even that didn’t stop him going about his usual MO, and that’s even why he started therapy, so he didn’t ask for help….
He committed the offence to support his gambling addiction. He feels bad for the victims and the impact this has had. He advised he commenced counselling in April 2018 to address gambling. I accept he’s done that, and I accept people with addiction don’t always act straight away when they are in the throes of their addiction, but given that he was on a bond, given that he had been given such a chance on numerous similar offences, to not seek help as soon as he became unstuck, but again resort exploitative premeditated form of fraud against vulnerable overseas students, arguably, when he already knows what the penalty is, and then the fact that he couldn’t stop while he was awaiting sentence. How can I not gaol him fulltime, how can I not?”[36]
[My underlining and emphasis]
[36] Ibid, page 63, lines 5–18; lines 25–35.
The cumulative effect of the Applicant’s repeated offending can also be gleaned by the submission of the Prosecutor about the necessary sentencing regime to be imposed on the Applicant based upon his failure to experience any deterrent effect from the significant efforts of the sentencing authorities to previously ameliorate his conduct:
“PROSECUTOR: Your Honour, as you said, there’s a strong need for specific deterrence. He’s intentionally deceived each of the victims with the sole purpose of financial gain. There is a degree of planning and a high level of exploitation of vulnerable members of the community. He’s been charged on a number of occasions since July 2016 involving the same modus operandi, again taking advantage of numerous vulnerable members of the community –
HER HONOUR: Multiple victims.
PROSECUTOR: -- in order to obtain his own financial advantage. He’s undergone an intensive corrective order in the past as well as being subject to the s 9 bond and this seems to have no effect on him. Since this time, he’s been charged in March for a similar offence, and despite being subject to strict bail conditions, he’s committed a similar offence again. In my submission, your Honour, the s 5 threshold has been crossed.
HER HONOUR: There’s no issue with that.
PROSECUTOR: He has no intention of ceasing his offending, despite being subject to that s 9 bond and the intensive corrections order. He appears to be completely undeterred by anything the Court has done previously, and he continues to commit these dishonesty offences, taking advantage of these vulnerable members of the community. There is no alternative except imprisonment, your Honour, in my submission.”[37]
[My underlining]
[37] Ibid, lines 37–50; page 64, lines 1–10.
A further cumulative effect of the Applicant’s offending can also be seen in his approach towards lawful authority seeking to deal with his offending. It is clear from the evidence that the Applicant sought to mislead the Court that was in the process of sentencing him. As noted by the Respondent’s representative during submissions:
“…
This was not the act of a desperate man feeding his addiction. You can imagine, in some circumstances, a pathological gambler acting on impulse to steal, or to somehow obtain some money to feed that addiction. This goes a step further. These are well thought out, premeditated acts of fraudulent financial, well, financial deceit. What aggravates [the Applicant’s] conduct is that even before the court, for his last set of offending, he then defrauded the court. He did exactly the court what he had done to his victims. He produced to the court a document purporting to show that he had made restitution by way of a bank transfer, which has now been confirmed to be fraudulent.
So, clearly, at that point, having made all those representations to the court about how he’s a reformed man and he’s learnt his lesson, he went and deceived the court. So that is, as far as the nature of the offending is concerned, there is plenty of material before the court and [the Applicant] has confirmed that he accepts that all of those are accurate representations of the offending and the circumstances of the offending, and the court should bear those in mind in making a finding as to the seriousness and nature of [the Applicant’s] offending, and we say it should find that it’s extremely serious conduct.”[38]
[Errors in original; my underlining]
[38] Transcript, 17 March, page 100, lines 17–35.
In summary, three specific things can be said about the cumulative effect of the Applicant’s offending. First, it is clear that he has had the benefit of non-custodial terms and similar regimes of sentencing designed to deter him from further offending that has resulted in his incarceration. None of those earlier non-custodial sentences seem to have had any deterrent effect upon him. Second, having regard to the totality of the Applicant’s conduct during his time in the mainstream Australian community from 2015 until 2018, it is also clear that he has failed to develop any measurable level of respect for the lawful authority governing the community into which he now seeks re-admission. Third, while it can be said that much of the Applicant’s offending has to do with his unresolved issues with gambling, it is also clear that none of the previous treatment regimes have caused him to overcome the propensity for “easy money” be it in the form of a delusion about his prospects of “backing a winner” in games of chance or by way of successfully defrauding money from victims.
None of the treatment regimes have succeeded in re-orienting his moral compass away from an “easy money” mentality as a means of supporting himself into a mentality shared by the vast majority of our community who derive their livelihoods from honest work, labour and toil. This Applicant’s history clearly demonstrates he does not share that mindset or those values and wants to make his way in life either by deluding himself about winning at games of chance or by succeeding in unlawfully and despicably taking the money of others.
The cumulative effect and nature of the Applicant’s offending attracts application of this sub-paragraph (f) in favour of a finding that his offending has been at least of a very serious, more likely, extremely serious nature.
Sub-paragraph (g) of Paragraph 13.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending. The material does not disclose any instance of the Applicant providing false information either to the Respondent or to any other element of lawful authority. This sub-paragraph (g) is not relevant to determination of this Application.
Sub-paragraph (h) of Paragraph 13.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status. I am not able to glean any such letter or other communication containing any such formal warning from the Respondent or any other element of lawful authority. This sub-paragraph (h) is not relevant to determination of this Application.
Sub-paragraph (i) of Paragraph 13.1.1(1) of the Direction refers to a non-citizen who has committed a crime while in immigration detention in Australia. Subject to my following comments about the chapeau to Paragraph 13.1.1 of the Direction, there is no evidence of this Applicant having committed a crime while in immigration detention in Australia. This sub-paragraph (i) is not relevant to determination of this Application.
The chapeau to the factors at Paragraph 13.1.1 of the Direction reads as follows:
“(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including: …”
[My underlining]
There are several further aspects to the Applicant’s conduct which, although not directly captured by the nine factors at Paragraph 13.1.1(1) of the Direction, nevertheless constitute “other conduct” relevant to any assessment of the nature and seriousness of the Applicant’s conduct.
Earlier in these reasons I referred to at least three instances involving adverse conduct by the Applicant during his time in criminal custody. Those instances of misconduct comprise:
(i)on 17 October 2018, the Applicant failed to observe workplace health and safety requirements relating to the safety of himself and his other cell inmates. The conduct involved the Applicant covering a smoke sensor with disregard for the safety of other cell inmates; [39]
(ii)on 21 April 2019, the Applicant refused to follow a direction to:
“… leave the phone area and return to the Pod. Inmate known to me as [the Applicant] decided to refuse the direction and then proceed to the next available call. Before he had fully entered the number he was again given a direction to ‘hang up the phone’ and ‘return to the Pod’ to which he so blatantly refused to do so. I instructed the inmate that he may be charged and his response was ‘Go ahead and charge me.’ …”; [40] and
(iii)on 20 May 2019, the Applicant was involved in an incident with a prison officer:
“Inmate was received back into the centre via court tonight and as he was being escorted out of reception area decided to help himself to the linen packs. Author said tro inmate “ who gave you permission to help ypourself to the pack”? Inmate said “ No one, but I need another blanket”. I said” “ You do not just help yourself!” Author then directed him to SCO reception who questioned inmate about issue then eventually gave permission. As officers and court returns exited the reception area, author gave inmate a blanket, inmate grabbed it then just walked away, author responded by saying would have been nice to have a thank you!?. Inmate ignored comment then said “ it had nothing to do with you!. Inmate continued to be argumentative in an arrogant manner. Author reminded him that jail is still a place of give and taken and manners go a long way in communication. Inmate continued with his belergerence back to the wing.”[41]
[Errors in original]
[39]    Exhibit R4, Respondent’s Tender Bundle, TB4, page 127.
[40]    Ibid, page 157.
[41]    Ibid, page 167.
While these three aspects of the Applicant’s conduct do not appear in his criminal history, or may not otherwise be strictly captured by the nine sub-paragraphs in paragraph 13.1.1(1) of the Direction, I am nevertheless of the view that the totality of these particular aspects of his conduct are relevant and captured by the reference to “other conduct” in the abovementioned chapeau to Paragraph 13.1.1(1) of the Direction. The conduct is indicative of a refusal to accept lawful authority and a failure to respect the essential function of that lawful authority which is to protect the community/environment in which the Applicant finds himself.
Having regard to the totality of the evidence to which the abovementioned relevant sub-paragraphs (c), (d), (e) and (f) of paragraph 13.1.1(1) of the Direction are relevant, I am of the view that the Applicant’s conduct, viewed cumulatively, is readily capable of characterisation as “extremely serious”.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:
(i)paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)paragraph 13.1.2(1)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The Respondent contends that:
“27 The nature of the harm if the Applicant were to reoffend is very serious and is likely to involved significant financial and psychological harm to members of the Australian community.”[42]
[42] Exhibit R1, Respondent’s SFIC, page 6, paragraph 27.

Paragraph 6.3(4) of the Direction stipulates that decision-makers should be guided by the principle that criminal offending and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. On the basis of this paragraph 6.3(4), I think the Respondent’s abovementioned submission is correct.
Very soon after arriving in this country, the Applicant began exhibiting conduct amounting to a portent of his future offending that now appears in his criminal history. He is clearly disposed to obtaining funds via unconventional and, ultimately, unlawful means. As I have mentioned, there is no obvious trajectory of the nature of the Applicant’s offending conduct. His unlawful activity has been predominantly focussed on the acquisition of funds without commensurate exertion or effort by way of remunerative employment.
It cannot be said that his offending commenced with low-level regulatory-type offending such as, for example, shoplifting offences, public nuisance offences and the like. The nature of what his future offending can make him capable of can, to my mind, be readily gleaned from his unlawful activities to date. If anything, his deceitful and fraudulent conduct towards his victims has evolved into conduct of greater sophistication and pre-planning than may have been the case earlier in his offending history. To my mind, the disturbing aspect of the Applicant’s offending history is his failure to understand the level of harm he has caused others.
I hesitate to use the word “pathological” in terms of his propensity to offend because of a relative absence of current clinical opinion adopting that description. That said, the Applicant’s demeanour towards Mr MY – both during Mr MY’s attempts to recover monies and in the course of Mr MY’s participation in these proceedings – is remarkably brazen. I have previously outlined the Applicant’s demeanour towards Mr MY. If the Applicant is not now in a demonstrated position of being able to apprehend the nature of the severity of what he has done to victims like Mr MY, how can this Tribunal be satisfied that the Applicant will in future be convinced that similar or identical despicable conduct towards other victims is not within the realm of possibility?
I have previously said I am not fully convinced of the Applicant’s protestations that an asserted gambling addiction is the single primary driver behind his offending. Whatever that primary driver may be, how can this Tribunal be convinced that if confronted with future circumstances of financial stricture and difficulty – be it because of gambling or a difficult circumstance in his life – this Applicant will not think that what he has done in the past is sufficiently wrong such as to convince him not to re-offend in a similar way?
My point (and finding) is that were the Applicant to re-offend, the very strong likelihood is that the nature, style and methodology of his offending would be the same or nearly the same as his previous unlawful conduct. He may devise different methods of deceitfully taking other people’s money, but the nature and harm that would be occasioned by his further criminal or other extremely serious conduct (were he returned to the Australian community) would be no less serious and impactful than it has already been.
As noted by Ms Huntsman SM in sentencing the Applicant on 6 June 2018, “The conduct is planned, it has a number of victims, and it is dishonest and organised, and they are all aggravating features under the legislation that make it worse.”[43] I am of the view that judicial officers dealing with the nature of any future offending by this Applicant will most likely be saying the same things were he to re-offend following his return to the Australian community.
[43] Exhibit R2, s 501 G-Documents, G8, page 65, lines 12–14
It is therefore reasonable to find that the potential consequences flowing from further similar or identical offending by this Applicant would be, at the very least, very serious, more likely, extremely serious. Were he to re-offend, I am of the view that its effect on a member or members of the Australian community would be very serious indeed and with, quite conceivably, potentially catastrophic financial and psychological consequences.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Applicant has a two-three year period of criminal offending in this country. He has been afforded the benefit of almost the full ambit of non-custodial sentencing regimes, ranging from: (1) a fine; (2) intensive correction orders; (3) a bond; (4) compensation orders; and (5) the police looking into his conduct, making reports about it, but not proceeding with formal charges against him. Looking at the totality of his conduct, one is very hard-pressed to detect from the oft-repeated nature of his unlawful conduct any reality that this Applicant has experienced any form of deterrent effect from the sentencing regime imposed upon him thus far.
The Report of Dr Yoxall
Any assessment of an applicant’s risk of re-offending is informed by a number of factors. Those factors are unique to each individual case. Here, the Applicant has tendered a report by psychologist (and Associate Professor in Allied Health) Dr Jacqui Yoxall.

Dr Yoxall’s report is dated 17 February 2020 and was obviously prepared for the purposes of the hearing of this Application. There are inherent difficulties with the orientation of

Dr Yoxall’s report and consequential findings. Those difficulties directly impact upon the level of weight that can be afforded to it for the purposes of any well-informed and reliable assessment of this Applicant’s risk of recidivism.
Page 24 of Dr Yoxall’s Report[44] marks the commencement of her “Risk Assessment” about recidivism. Dr Yoxall’s discussion about risk assessment commences with an application of the risk assessment methodology she applied. Specifically, Dr Yoxall applied “The Level of Service Inventory – Revised (LSI-R)”. That assessment methodology includes a series of ten domains. One of those domains includes an offender’s criminal history. For the purposes of her report, Dr Yoxall noted “I understand that [the Applicant] has four convictions for dishonestly gaining financial advantage by deception.”
[44] Exhibit A20, Report of Dr Jacqui Yoxall dated 17 February 2020.
The Applicant’s criminal history makes it patently clear that Dr Yoxall has proceeded on a misapprehension. Indeed, the Applicant has something in the order of 32 convictions for offences of dishonesty involving the gaining of financial advantage by deception. Very significantly, this misapprehension led Dr Yoxall to apply the LSI-R methodology on an incorrect or inaccurate basis. She noted “his score on the LSI-R was 14 and is primarily related to the number of convictions and past mental health concerns and need for treatment.”[45] [My underlining] It is surely beyond argument that the number of convictions recorded against an applicant/patient before her is a key factor in Dr Yoxall’s application of the LSI-R and her arrival at a rating or score for that applicant/patient’s risk of recidivism.
[45] Ibid, page 26.
Putting aside the incorrect unreliable application of Dr Yoxall’s application of the LSI-R for the Applicant,[46] the balance of Dr Yoxall’s Report does the Applicant little or no favours in terms of Dr Yoxall’s views about his risk of re-offending. At page 31 of her Report,

Dr Yoxall notes “in my clinical opinion, [the Applicant] has a diagnosis of Gambling Disorder (persistent and severe) …”. Also on that page, Dr Yoxall further notes:
“… [The Applicant’s] static (historical risk factors) for reoffending are limited. His dynamic risk factors are relapse to Gambling Disorder and vulnerability to depression. … The key risk factor for reoffending is the Gambling Disorder. Resolution of this disorder would substantially reduce [the Applicant’s] risk of reoffending. If he does not address the Gambling Disorder successfully, his risk of reoffending is high. If he does address the Gambling Disorder successfully, his risk of reoffending could be reduced to a low risk.”[47]
[46] The Tribunal feels duty bound to record that Dr Yoxall has been led to incorrectly apply the LSI-R. These reasons should not be read on the basis that Dr Yoxall is in any way solely responsible for that incorrect application of the LSI-R.
[47] Exhibit A20, Report of Dr Jacqui Yoxall dated 17 February 2020, page 31.
Dr Yoxall’s Report, therefore, on the question of the Applicant’s risk of recidivism goes no further than making two basic points. First, his diagnosis of Gambling Disorder (persistent and severe) remains current, untreated, unmanaged, and unresolved. Second, his risk of re-offending is entirely dependent on him successfully addressing that disorder. Dr Yoxall makes it clear: “If he does not address the Gambling Disorder successfully, his risk of reoffending is high.”[48]
[48] Ibid.
It would thus be unsafe to attribute any measure of weight, certainly no weight of a determinative nature, to the conclusions reached by Dr Yoxall about the Applicant’s risk of reoffending.
The Applicant’s Evidence
In terms of his own evidence, the Applicant says that since his incarceration in mid-2018, he has participated in certain programs, a text messaging service to assist those with gambling addictions and counselling. Be that as it may, I agree with the three issues raised by the Respondent urging this Tribunal to allocate less weight to those asserted rehabilitative efforts. First, although well-intended, those programs/counselling do not appear to have been provided by a clinician (or similar expert) experienced in and capable of assisting the Applicant to address his addiction to gambling.
Second, there is evidence in the material that the Applicant’s undertaking of these asserted rehabilitative steps was done as a means of improving his position before a given sentencing judicial officer. A counsellor who was dealing with the Applicant in or about April-May 2018 (prior to his sentencing by Ms Huntsman SM on 6 June 2018) noted these things:
“Phone call to A [name of counsellor redacted (Counsellor at Wesley Mission)]
A advised that [the Applicant] commenced counselling in April 2018 and has only been to 3 sessions so far. A said that he had cancelled some appointments. She is aware of the offence and that he is going to court. A said she will be providing the court with a report. A said that she feels [the Applicant] is only attending his counselling sessions due to his offence, and not as a priority to address his gambling addiction. She said for [the Applicant] to address his gambling issues he will need to continue to attend counselling on a regular basis. …”[49]
[My underlining]
[49] Exhibit R4, Tender Bundle, TB4, page 196.
Third, although the Applicant had undertaken and participated in similar programs in the past, they did not deter or curb his previous offending. The material reveals that:
·On 10 October 2016, the Applicant attended the Gambling Treatment Clinic at the University of Sydney for weekly sessions. He completed eight sessions of “Cognitive Behavioural Therapy for Problem Gambling”. He convinced the psychologist overseeing this treatment that “… He has been successful in ceasing his gambling and will continue to attend the clinic on a fortnightly basis.”[50]
[50] Ibid, TB1, page 28.
·On 2 November 2016, the New South Wales Department of Corrective Services prepared a pre-sentence report. The report notes:
“…since the arrest on 13 July 2016, [the Applicant] has engaged in treatment. A letter provided by his psychologist at a gambling treatment service in Sydney confirms that he commenced counselling in August 2016. He has completed 8 sessions of Cognitive Behavioural Therapy and [the Applicant] will continue to attend for ongoing treatment.
[The Applicant] has also engaged with a financial counsellor. The objective is to work on his budget management and the capacity to repay his victims. …
…
RISK LEVEL AND CRIMINOGENIC NEEDS
According to the Level of Service Inventory – Revised actuarial risk/needs assessment tool, the offender is assessed as a low risk of re-offending. The identified criminogenic needs are:
·Gambling
…
Supervision by Community Corrections
The offender is unlikely to benefit from a period of supervision by Community Corrections due to his assessed low risk of reoffending and he is already engaged in the appropriate treatment.”[51]
[51] Ibid, TB1, pages 42–43.
None of these courses deterred the Applicant from offending in the past. The balance of his evidence indicates that any course or courses he may be undertaking now will have a similar negligible effect on his risk of re-offending. Since 2016, the Applicant has propounded a resolution to address his gambling disorder. He has had the benefit of various programs and processes of counselling and rehabilitation. He has had the benefit of a support network in close proximity. Were he to be released back into the community now, it is difficult for this Tribunal to be convinced of the Applicant’s capacity or resolve to address his disorder.
Two primary elements emerged from the Applicant’s oral evidence at the hearing. First, he was not convincing about having gained any true insight into the nature of his offending conduct and the factors predisposing him to offend. His primary focus seemed to be on his asserted addiction to gambling. As I have previously alluded to, he does not seem to apprehend the deceptive and exploitative features of his offending. Even when offered an opportunity by Mr MY to show some good faith and make a token payment of $250 (out of a total debt of $13,000) the Applicant elected to deliberately mis-characterise Mr MY’s gesture and turn it into an actual complaint to New South Wales Police for alleged blackmail/extortion. This, to my mind, is directly indicative of the Applicant’s lack of insight into the level of harm and damage his offending has inflicted upon others.
Second, the Tribunal heard evidence about the Applicant being responsible for the deliberate return of correspondence from victims aimed at seeking some measure of restitution from him. It is clear the Applicant has been responsible for intentionally causing correspondence from victims to never be received by him. This conduct is in stark contrast to previous protestations from the Applicant about him having a certain commitment to make restitution to his victims and that his support network would make sure that the Applicant would adhere to this compensatory commitment. This is not how the evidence emerged during the hearing before me. It was clear that correspondence from damaged and desperate victims has been deliberately turned away, and deliberately caused to be not received by the Applicant. Those victims have, on any practical view, been closed out from any prospect of recovering the money unlawfully taken from them. This conduct is not consistent with any level of insight into the financial and emotional harm this Applicant’s offending has caused his victims.
The Applicant’s oral evidence about his undertaking the “In Charge of My Money”, money management course, has been characterised by the Respondent as “disingenuous”.[52] I agree. He purports to suggest that this money management course is a significant component of his future strategy towards minimising his risk of re-offending. He had nothing convincing to say when, in the course of cross-examination, despite his undertaking of financial counselling in the past, none of that caused him to be a better money-manager and only saw him return to his extremely serious pattern of offending. In short, none of the current regime of the asserted courses/treatments/rehabilitative steps are any different to what he says he has done previously.
[52] Transcript, 19 March 2020, page 103. line 12.
As this Tribunal so often hears from applicants in these types of applications, the Applicant contended in oral evidence that his incarceration has made him a changed man. That contention remains to be tested in the general community. To the extent it has been “tested” during the Applicant’s time in prison, it is clear from at least three separate incidents to which I have referred, he appears to still not have developed any modicum of respect for lawful authority and remains predisposed to challenging it. Were he to challenge lawful authority again upon his release, the nature of harm to prospective victims cannot be reasonably be expected to be any less significant than the harm he has caused victims thus far.
The other witnesses – Mr H
Mr H has provided two statements both of which significantly pre-date this hearing. His first statement/letter is dated 17 November 2016. The second is dated 27 September 2018. He also gave oral evidence at the hearing.
Mr H is in his mid-to-late 70s, and is a retired academic. He claims to have an active involvement with the Zimbabwean community in Australia, in Zimbabwe and in the Zimbabwean diaspora. He says he has known the Applicant since July 2016 and that he has “…come to know him well and to understand his situation.”[53] Mr H has, since at least 2016, been aware of the Applicant’s pattern of offending and, viewed in its totality, his evidence, both written and oral, seems predicated on convincing a given sentencing judicial officer or other decision-maker about: (1) the positive aspects of the Applicant; (2) Mr H’s apparent belief that the Applicant has overcome all of the factors predisposing him to offend; and (3) that were the Applicant given just one further chance to re-establish himself, all will be well and he will become a law-abiding and valuable member of the Australian community.
[53] Exhibit A11, Statement of Mr H, dated 27 September 2018.
That is not how things have transpired after Mr H has provided his previous respective statements/letters. I attribute no weight to any assessment Mr H may have about clinical reasons behind the Applicant’s offending. He is not a clinician. He is a friend, indeed a devoted friend, of the Applicant. Instead, I will assess Mr H’s evidence on the basis of steps he says he has taken as a member of the Applicant’s supportive network to prevent him reoffending and to otherwise achieve some measure of restitution for the affected victims.
In his letter/report of 17 November 2016, Mr H said the following about the Applicant’s intention to make some level of restitution for his victims:
“Financial arrangements
[The Applicant] is being assisted by [name redacted], Financial Counsellor at Wesley Mission’s Credit Line Financial Counselling Service. With her guidance, he has drawn up a financial management plan and he has set up a dedicated NAB bank account into which he is depositing funds to repay those to whom he owes money. [The Applicant] and I are joint account holders and money can only be withdrawn from this account if both of us are present and both of us sign.”[54]
[54] Exhibit R4, Tender Bundle, TB1, page 42.
Despite the Applicant’s own evidence about intending to compensate his victims and despite the apparently supportive statement of Mr H to oversee a joint account with the Applicant, nothing or next to nothing has been returned to the victims. It would seem that anything that has been returned to the victims has been done for the purpose of convincing a sentencing judicial officer of the Applicant’s purported intention to compensate his victims.
In his letter/report of 27 September 2018, Mr H observes that the Applicant:
“… is an intelligent, talented, educated, outgoing, altruistic, and well-balanced man with a bright future. His gambling and associated predatory behaviour are bizarre, out-of-character episodes.
…
… he became overconfident and felt that he was in control which led to his relapse and consequent incarceration.
…
[The Applicant] is willingly cooperating with me and I give my solemn undertaking to use my best endeavours to ensure that he continues to receive the ongoing psychological treatment he needs, and complies with a financial management plan to make restitution to those that he has offended against.
…”[55]
[55] Exhibit A11.

Thus, the Full Court’s decision, along with the existing authority of Afu establishes that:
(a)the “expectations of the Australian community” cannot be measured or determined as in the case of a provable fact. It is an assessment of community values made on behalf of that community;[83]
(b)it is not for the Tribunal to determine for itself what such “expectations” are by reference to the Applicant’s circumstances or evidence about those expectations;[84]
(c)the Government’s views in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the Government thinks are the “expectations of the Australian community”, and the Tribunal should have “due regard” of those statements, if made;[85] and
(d)in assessing the weight attributable to this Primary Consideration C, decision makers can have regard to the principles in paragraph 6.3 of the Direction, in particular, sub-paragraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this Primary Consideration is a matter for the decision maker.[86]
[83]    Afu at paragraph [85].
[84]    FYBR at paragraph [42].
[85]    FYBR v Minister for Home Affairs [2019] FCAFC 185, paragraph [74] (Charlesworth J) citing Uelese v Minister for Immigration and Border Protection [2016] FCA 348.
[86] Ibid, paragraphs [77] (Charlesworth J) and [105] (Stewart J).
Analysis – Allocation of Weight to this Primary Consideration C
The Applicant does have a demonstrated history of participation in the Australian workforce. He has described it thus in his Personal Circumstances Form:
“From 5/15 to 08/15: Donations/Sales – [Name of business redacted]
From 08/15 to 06/16: Shop Assistant – [Name of business redacted]
From 07/16 to 08/17: Business Development Manager – [Name of business redacted]
From 07/16 to 02/17: Waiter (Casual) – [Name of business redacted]”[87]
[87] Exhibit R2, s 501 G-Documents, G12, page 95.
The Applicant has also made contributions to Australian community and cultural activities as follows:
“I have volunteered at the Bower as well as at the Maroubra Fun Run in 2017. I have also supported Mission Australia for more than a year until my incerceration [sic]. I have also been an active supporter of Cure Cancer Australia.”[88]
[88] Ibid.
I have had regard to the Applicant’s unlawful conduct as particularised in his offending history. Having regard to the extremely serious nature of his conduct, he has surely breached the expectations of the Australian community. The nature of his offending history is such that he has very seriously failed to abide by the laws of Australia. In ascertaining the weight attributable to this Primary Consideration C, I take into account the following factors and/or findings:
(i)the level of the Applicant’s positive contributions to the Australian community;[89]
(ii)the Applicant has lived in Australia for approximately three and a half years (up to his removal from the Australian community);[90]
(iii)the removal of the Applicant may have an adverse impact on Child M and the Applicant’s wife in Australia (assuming the relationship between them is current);[91]
(iv)the extremely serious nature of the Applicant’s offending to date to members of the general public;
(v)the nature of the totality of his conduct in this country, involving, as it does: (1) a lack of respect for lawful authority and the property rights of others involving the criminal taking of approximately $90,000 dollars of victims’ funds; and (2) the imposition of almost 20 years of custodial sentences (expressed in cumulative terms);
(vi)the lack of current, independent and expert evidence measuring the level of the Applicant’s insight into the nature and severity of his offending;
(vii)my finding of a strong and convincing likelihood that he will engage in further and, most likely, extremely serious conduct if returned to the Australian community; and
(viii)my assessment of the quite significant risk of substantial and even catastrophic financial harm to the Australian community were he to re-offend.
[89]    The Direction, paragraph 6.3(7).
[90]    The Direction, paragraph 6.3(5).
[91]    Ibid, paragraph 6.3(7).
Conclusion: Primary Consideration C
I am of the view that the above factors, read as a whole in the context of this case, militate in favour of not revoking the cancellation of the Applicant’s visa. I accordingly find that this Primary Consideration C is of heavy weight in favour of affirming the non-revocation decision under review.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
The Applicant’s position prior to commencement of this hearing
The Applicant has contended that he would face kidnapping or death if returned to Zimbabwe. He says that “I believe going back will possibly lead to an abduction, and definitely lead to my death. I put in an application for asylum in November 2016. Whilst I may not know the exact methods, abductions are common in Zimbabwe.”[92] As best as I understood the Applicant’s claims for non-refoulement prior to this hearing, he appeared to rely on the claims he originally set out in his original protection application.
[92] Exhibit R2, s 501 G-Documents, G12, page 96.
A delegate of the Respondent refused him a protection visa by way of a decision dated 2 August 2018. The delegate’s refusal was affirmed by the Migration and Refugee Division of this Tribunal (‘MRD’) on 21 November 2019. The Applicant has a pending application for judicial review of the MRD’s decision before the Federal Circuit Court of Australia. The material further indicates that the application for judicial review will be heard in or about September 2020.
The Applicant’s position at this hearing
At the hearing before the Tribunal, both the Applicant and the Respondent submitted that the outcome of the current proceedings before the Tribunal can have no effect on whether there is a risk that Australia will breach its international non-refoulement obligations. That is because the decision under review relates to a Bridging Visa. The outcome of these proceedings will not determine whether the applicant can remain in Australia. Rather, the outcome of these proceedings may determine whether the applicant is detained, or released into the community, pending the ultimate resolution of his Protection visa application.
At the hearing the Applicant indicated that he did not withdraw his claims in relation to being a person in respect of whom Australia had international non-reform obligations. However, the Applicant indicated that in the current proceedings consideration of Australia’s international non-reform obligations were not relevant for the reasons mentioned above. Further, the Applicant indicated that he had received legal advice that, because there were currently proceedings in the Federal Circuit Court for review of the MRD decision in relation to his Protection Visa application, he should make no comment on his protection claims, or advance any other protection claims, during the Tribunal proceedings.
Assessment of the Applicant’s claims
Paragraph 14.1 of the Direction provides:
1A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulment obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
2The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
3Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
4Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether the non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
5If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them – sections 48A and 48B of the Act refer).
6In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.
The present state of the law derives from the Full Court decision in Minister for Home Affairs v Omar [2019] FCAFC 188 (‘Omar’). This decision involved a challenge to a decision of the Assistant Minister for Home Affairs not to revoke a mandatory cancellation decision under s 501CA(4) of the Act. The former visa holder was a Somali national.
Representations were made on behalf of the Respondent visa holder in respect of non-refoulement obligations were he returned to Somalia. It was also contended on behalf of that Respondent that clause 14.5 of the Direction (Extent of Impediments if removed) was also relevant and should be taken into account. It was contended that the Respondent would face impediments if returned to Somalia because of similar reasons giving rise to his non-refoulement claims.
The question before the Full Court involved a determination of whether the Assistant Minister had made a jurisdictional error by failing to consider the concerns raised by the Respondent in his representations made pursuant to s 501CA(3) as being a reason for revoking the visa cancellation decision, irrespective of whether these matters engaged any of Australia’s non-refoulement obligations.
The Full Court found that the Assistant Minister’s decision was affected by jurisdictional error due to the incumbent obligation on the Minister or his delegate to give meaningful consideration to a representation of harm independently of a claim concerning Australia’s non-refoulement obligations. That obligation requires “an active intellectual engagement with the matters raised … relating to the risk of harm”,[93] and the failure to consider a substantial or significant and clearly articulated claim may constitute a failure to carry out the statutory task and give rise to jurisdictional error.[94] The Full Court found the Assistant Minister had not satisfied the requirement of the obligation.
[93] Omar, paragraph [40].
[94] Ibid, paragraph [41].
To my mind, the Full Court’s decision in Omar means: (1) it is not sufficient for a decision-maker to merely “have regard to” only some of the significant matters raised in the representations; and (2) deficiencies in the decision-making process are not overcome by the adoption of a broad statement such as “I have considered all relevant matters…” and “Having given full consideration to all of these matters…”. The Full Court’s decision in Omar gives rise to a requirement for a decision-maker to engage meaningfully with the significant representations which have been clearly expressed on the risk of harm. That obligation is not discharged by generalised statements as quoted in this paragraph of my Reasons.[95]
Non-refoulement obligations in Bridging visa cases
[95] Ibid, see paragraph [43](g).
As matters stand, there are currently conflicting authorities in the Federal Court as to whether it will be an error for a decision-maker not to make an assessment as to whether an Applicant is a person in respect of whom Australia has non-refoulement obligations in circumstances where it is open for an Applicant to apply for a Protection Visa.
In the current case, the issue as to whether the Tribunal can put off consideration of protection claims does not arise. First, because the Applicant is not entitled to apply for a Protection Visa.
Second, the Applicant’s Bridging Visa was cancelled and the Minister’s delegate refused to revoke that decision. The Applicant currently has a judicial review application before the Federal Circuit Court for review of the MRD decision relating to a Protection Visa application. If he is successful in his current application before the Tribunal, then the cancellation of his Bridging Visa will be revoked. While it appears that that visa would have expired in any event, a decision by the Tribunal to revoke the cancellation of the Applicant’s Protection Visa may be given some weight in a new application for a Bridging Visa. However, this is by no means a certainty.
What is clear is that the current proceedings will have no bearing whatsoever on whether the Applicant is allowed to remain in Australia. At most, it may have some influence on whether the Applicant is allowed to remain in the community pending the final resolution of the Applicant’s Protection Visa application. The Tribunal accepts the submissions or both parties to that effect.
It follows that the Tribunal considers that the consideration of Australia’s international non-refoulement obligations is not relevant in this case and places no weight on this consideration.
In the event I am wrong in my conclusion that Australia’s international non-refoulment obligations are irrelevant in the current proceedings, I have considered the Applicant’s claims to fear harm and whether the Applicant is a person in respect of whom Australia owes international non-refoulement obligations.
I again note from the hearing that the Applicant, based on legal advice he says he had received, refused to comment further on his protection related claims.
Based on the totality of the material before me, I:
·have noted and understood the nature of the previously claimed fear of harm held by the Applicant were he to be returned to Zimbabwe as particularised at paragraphs [18] and [19] of the MRD’s decision;[96]
[96] Exhibit R4, Tender Bundle, TB9, page 310.
·concur with the MRD’s “… numerous credibility concerns with the Applicant’s claims as well as key corroborating of [the Applicant’s father] and [the Applicant’s sister]…”[97] particularised by the MRD as:
[97] Ibid, page 317, paragraph [69].
o“Firstly, the applicant has been inconsistent as to instances of threats and harm that occurred on his return trip to Zimbabwe in January 2016.”[98]
o“Secondly, the applicant’s father, [name redacted], failed in the second hearing to corroborate the applicant’s claims of the applicant having had an adverse encounter with men at the gate of the home being the precursor to the receipt of the threatening text message or of the applicant’s father having had an encounter with a war veteran from another faction who specifically threatened harm to the applicant.”[99]
o“Thirdly, there are additional numerous and not insignificant inconsistencies between the evidence provided by the applicant and his father in the second Tribunal hearing.”[100]
o“Fourthly, the applicant has been inconsistent in terms of him being the person who followed up the complaint that had been made to the police concerning the threatening text message.”[101]
o“Fifthly, it lacks plausibility that individual(s) who had a serious intention to kill or harm the applicant would have made a threat to the applicant by text message in a manner that would reveal to the applicant the telephone number of the sender of the message.”[102]
o“Sixthly, the Tribunal has credibility concerns in relation to the means by which those who had sent he claimed threatening text message would so readily have had access to the applicant’s only recently acquired mobile phone number.”[103]
o“Seventhly, there is an inconsistency as to those members of the applicant’s family specifically involved when the resettled farm of the applicant’s father was vandalised by members of the ZANU-PF in November 2017.”[104]
o“Eighthly, the applicant’s father did not corroborate evidence provided by [the Applicant’s sister] and the applicant that she had been run down by a car in March 2019 because individuals wanted to harm her due to her father’s political issues, and that this was the cause of the family leaving Zimbabwe.”[105]
o“Ninthly, the Tribunal has further credibility concerns that if there was a reasonable degree of protection for the applicant’s father, then this would not extend to his children. On the applicant’s evidence, confirmed by the applicant’s father in his evidence, the applicant’s father has not suffered any significant issue or harm as a result of his political involvement in recent years.
The applicant indicated in the first Tribunal hearing that the sole basis on which he fears harm on returning to Zimbabwe is because individuals want to harm his father by harming his children.”[106]
[98] Ibid, page 317, paragraph [70].
[99] Ibid, page 318, paragraph [82].
[100] Ibid, page 319, paragraph [85].
[101] Ibid, page 321, paragraph [99].
[102] Ibid, page 321, paragraph [102].
[103] Ibid, page 321, paragraph [105].
[104] Ibid, page 322, paragraph [107].
[105] Ibid, page 322, paragraph [112].
[106] Ibid, page 323, paragraphs [119]–[120].
The Applicant’s claim about a fear of harm were he to be returned to Zimbabwe arise from his father’s participation in the Zimbabwe African National Union – Patriotic Front (‘ZANU-PF’) political party and apparent intra-party violence within factions of that party. I have carefully considered the Applicant’s claims and do not find them credible for the same reasons as those identified by both the Respondent’s delegate and the MRD. For the same reasons expressed by the decision-makers in each of those decisions I am not satisfied that the Applicant would face any harm if returned to Zimbabwe.
Consequently, I am not satisfied that the Applicant is a person in respect of whom Australia has non-refoulement obligations. Thus, even if the Tribunal was of the view that consideration of Australia’s non-refoulement obligations was relevant in this case, the Tribunal would have concluded that the Applicant is not a person in respect of whom Australia has non-refoulement obligations. Therefore, the Tribunal would not have placed any weight on this consideration.
Other harm or hardship

The Applicant has also raised a concern about the possibility of indefinite detention due to his reluctance to voluntarily return to Zimbabwe. As noted by the Respondent, there is nothing to suggest the Applicant could not be returned to Zimbabwe as an involuntary returnee. There is no evidence before the Tribunal that people who are returned to Zimbabwe, whether voluntarily or involuntarily, are persecuted or mistreated on their return. As noted by the Department of Foreign Affairs and Trade (‘DFAT’) in its ‘DFAT Country Information Report: Zimbabwe’ (current to 19 December 2019):
“5.38 The International Organisation for Migration runs a voluntary assisted return and reintegration program aimed at assisting migrants who wish to voluntarily return to Zimbabwe, including failed asylum seekers. DFAT is unaware of any cases to date in which returnees, including failed asylum seekers, have faced persecution or mistreatment on return.” [107]
[My underlining]
[107] Ibid, TB5, page 288.
While the Tribunal considers that there is very little chance that the Applicant will be indefinitely detained, the Tribunal is willing to accept that his detention may be prolonged if he does not voluntarily depart. The Tribunal places low weight on this consideration in the Applicant’s favour.
There is the further consequence that were the Applicant to be removed from Australia, non-revocation may result in him being barred from obtaining any visa to re-enter Australia pursuant to the operative effect of item 5001(c) of Schedule 5 to the Migration Regulations 1994 (Cth). The Tribunal places low weight on this consideration in the Applicant’s favour.
(b) Strength, nature and duration of ties
There is the following limited concession made by the Respondent:
“Overall, the Applicant’s ties to Australia are limited and reflect his relatively short period of residence in this country. To the extent that this consideration weighs in the applicant’s favour, it should be given limited weight.”[108]
[108] Exhibit R1, Respondent’s SFIC, page 11, paragraph [48].
The Applicant was born in Zimbabwe in July 1989. He came to Australia in May 2015 and has resided here on a final basis since February 2016. His offending history commenced very soon after his arrival in Australia and while it runs for a relatively short period, the offending was very frequent and extremely serious. Having regard to paragraph 14.2(1)(a)(i) of the Direction, I allocate less weight to this Other Consideration (b) in those circumstances. In his favour, there is some evidence about contributions he has made to Australia via his limited employment history and his limited participation in community and cultural events. This would attract a slight level of weight in his favour pursuant to paragraph 14.1(1)(a)(ii) of the Direction.
Regard must also be had to paragraph 14.2(1)(b) of the Direction which is concerned with the Applicant’s strength, duration and nature of any family or social links with Australian citizens and/or people who can otherwise remain here indefinitely. In his Personal Circumstances Form, the Applicant records that his father, mother, and one of his sisters currently reside in Zimbabwe. He also records that a second sister resides in Zambia, and a third sister resides in Cyprus.[109]
[109] This information (about his family in Zimbabwe) is taken from the Applicant’s Personal Circumstances Form. Note: it may be the case that the Personal Circumstances Form has been superseded by a subsequent relocation of some or all of the Applicant’s family from Zimbabwe to South Africa. See Transcript, 18 March 2020, page 7, lines 43–46.
In terms of people with whom the Applicant is connected in Australia he cites them as:
·Mr H, whom he describes as his “father in Australia”;
·three cousins;
·an aunt;
·a sister-in-law (Ms MM); and
·a nephew (the Child M).
I will proceed to assess the extent of the Applicant’s family and social links in this country. The Applicant’s wife resides in Australia on a student visa. She is not captured by paragraph 14.2(1)(b) of the Direction because she does not have an indefinite right to remain in Australia. Her expressed intention to acquire a permanent visa does not bring her within the ambit of paragraph 14.2(1)(b) of the Direction.
I accept that both Ms MM[110] and Mrs LW[111] are members of the Applicant’s support network. On that basis alone, and on the assumption they both have an indefinite right to remain in Australia, a moderate measure of weight is attributable to the Applicant on the basis of this paragraph 14.2(1)(b). I also accept that the Applicant and Mr H have an apparently close relationship. For reasons best known to the Applicant, he has chosen not to more closely align himself and his conduct with the mentoring efforts of Mr H. I note that almost two years of the Applicant’s five years in this country have been spent in either criminal custody or immigration detention. While he may have a measure of ties and connections with these three people, it is only sufficient to attract a moderate measure of weigh in his favour.
[110] I am assuming Ms MM is either a citizen or permanent resident of Australia.
[111] I am assuming Mrs LW is either a citizen or permanent resident of Australia.
On the basis of reasons I have mentioned as part of my consideration of Primary Consideration B, I accept the Applicant has a level of ties and connection to the Child M[112] and that a moderate measure of weight in the Applicant’s favour is warranted for that reason.
[112] I am assuming Child M is either a citizen or permanent resident of Australia.
Given the nature, strength and duration of the Applicant’s family/social links with members of his immediate family and support network in Australia, a moderate measure of weight is attributable to this Other Consideration (b) pursuant to paragraph 14.2(1)(b) of the Direction.
Accordingly, having regard to the totality of evidence relevant to this Other Consideration (b), I am of the view that it weighs moderately in favour of revocation, but is outweighed by Primary Considerations A and C, which favour non-revocation.
(c) Impact on Australian business interests
There is no evidence before the Tribunal that cancellation of the Applicant’s visa would have an impact on Australian business interests. This consideration is not relevant to determination of this application.
(d) Impact on victims
Uniquely in matters of this type, the Respondent called evidence about the impact the Applicant’s continued presence in Australia on any of his victims. I have earlier discussed the written and oral evidence of Mr MY and how that evidence has impacted upon my consideration and determination of applicable weight attributable to other components of the Direction. It suffices to record only a relatively small portion of Mr MY’s written evidence in order to gain an understanding of how the Applicant’s continued presence in Australia will impact on at least that victim:
“9. I am yet to receive any money from [the Applicant] despite all my efforts.
10. In total [the Applicant] owes $13,000 which includes interest and fees arising court processing fees, the application for judgment, examination order and garnishee orders.
11. I do not think that [the Applicant] has any intention to pay me back the money. If he did he would have at least saved some money in his account or responded to my attempts to contact him. I believe [the Applicant] will continue to steal money if he is released from detention.
12. I am also a visa holder and I work hard to study and support myself here in Australia. I comply with my visa conditions. [The Applicant] does not and should not be allowed to stay.
13. I would be relieved if [the Applicant’s] visa remained cancelled.”[113]
[My underlining]
[113] Exhibit R3, Affidavit of Mr MY dated 17 March 2020, page 3, paragraphs[9]–[13].
Thus, a finding can be safely made that the Applicant’s continued presence in Australia will adversely affect at least one of the victims of his offending, that being Mr MY, who provided written and oral evidence to this Tribunal and subjected himself to cross-examination by the Applicant. Accordingly, I find that this factor attracts weighs moderately in favour of not revoking the decision to mandatorily cancel the Applicant’s visa.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account any impediments that a non-citizen may face if removed to their country of origin and if required to re-establish themselves in that country. Relevant factors to be taken into account include:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
In his Personal Circumstances Form, the Applicant summarises his concerns about returning to Zimbabwe as follows:
“I believe going back will possibly lead to an abduction, and definitely lead to my death. I put in an application for asylum in November 2016. Whilst I may not know the exact methods, abductions are common in Zimbabwe”[114]
[114] Exhibit R2, s 501 G-Documents, G12, page 96.
The Applicant is a young man of almost 31 years of age. In response to a question in his “Personal Circumstances Form” about “Do you have any diagnosed medical or psychological conditions?” the Applicant ticked the “Yes” box.[115] The Applicant said, “I was diagnosed with depression, PTSD and gambling addiction by Dr [name of doctor redacted] and had been receiving treatment from a clinical psycologist [sic] prior to incerceration [sic]”.[116]
[115] Ibid, page 96; see also Section 14.5(1)(a) of the Direction.
[116] Ibid.
The Applicant refers to a poor healthcare system in Zimbabwe and that his return to that country would be impactful upon both his parents and his sister, all of whom he says are HIV positive. The cost of healthcare for the Applicant’s family is not a consideration captured by this paragraph 14.5 of the Direction. To the extent the Applicant contends he will experience difficulty (in Zimbabwe) in having to fund the healthcare for himself and members of his family, it is inconsistent with his previous evidence that his family was in a position to fund his international fees in Cyprus (where he completed a bachelor’s degree) and in Australia (where he has completed further studies). There is nothing to suggest that the Applicant would not be able to obtain access to healthcare services in Zimbabwe to the same level as is generally available to other citizens of that country.
I accept he will face some short to medium term difficulties in re-establishing himself in Zimbabwe. In his evidence, the Applicant said, “Now, the unemployment rate in Zimbabwe is about 90 per cent.”[117] DFAT’s Country Information Report says:
“Very little primary data exists on employment in Zimbabwe. Different sources place the unemployment rate as low as 4 per cent and as high as 95 per cent. It is clear, however, that the majority of the labour force that participates economically does so in the informal economy, including many Women and Children. A January 2018 IMF study found that the informal Zimbabwean economy averaged 60.6 per cent of the total economy between 1991 and 2015, accounting for 44 per cent of Gross Domestic Product (GDP), and that Zimbabwe had the third largest informal sector in the world, behind only Georgia and Bolivia.”[118]
[117] Transcript, 19 March 2020, page 117, lines 29–30.
[118] Exhibit R4, Tender Bundle, TB5, page 243.
As against that, the Applicant has extended family in Zimbabwe and a bachelor’s degree in information technology which has been augmented by further studies in Australia. Taking these factors in total, I do not consider those short-medium term difficulties, while genuine, would be insurmountable.
As noted by the Respondent, for the purposes of the instant application, it is ultimately not the Applicant’s bridging visa that will determine his entitlement to remain in Australia. His destiny in that regard rests in the judicial review of the MRD’s refusal of his protection visa application now pending before the Federal Circuit Court.
The Applicant arrived in Australia from his country of origin in his mid-20s. There are no significant or substantial language or other cultural barriers to the Applicant’s return and re-establishment in Zimbabwe.[119] As a citizen of that country, he will have access to social, medical and/or economic support in the context of what is generally available to other citizens of Zimbabwe.[120]
[119] Paragraph 14.5(1)(b) of the Direction.
[120] Paragraph 14.5(1)(c) of the Direction.
The Applicant has a limited record of engaging in remunerative employment in this country. There is little or nothing precluding him from doing the same types of work in Zimbabwe were he compelled to return there. Further, there would also be little precluding him from working in the information technology industry in that country.
Having regard to the totality of the evidence relevant to this Other Consideration (e), I am thus of the view it weighs moderately in favour of revocation.
Findings: Other Considerations
With reference to these Other Considerations, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C, which respectively weigh very heavily and heavily in favour of non-revocation. The application of the Other Considerations in the present matter can be summarised as follows:
·international non-refoulement obligations: of low weight in favour of revocation;
·strength nature and duration of ties: moderately weighs in favour of revocation;
·impact on Australian business interests: not relevant;
·impact on victims: moderately weighs in favour of non-revocation; and
·extent of impediments if removed: moderately weighs in favour of revocation.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke 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 I have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before me, there is not another reason for me to revoke the cancellation of the Applicant’s visa.
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 A weighs very heavily in favour of non-revocation;
·Primary Consideration C weighs heavily in favour of non-revocation;
·Primary Consideration B weighs slightly in favour of revocation;
·I have outlined the weight attributable to the Other Considerations. I do not consider that the totality of the weight attributable to all of the Other Considerations combined, even when conjoined with Primary Consideration B, outweigh the very significant, combined and determinative weight I have attributed to Primary Considerations A and C; and
·a holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 238 (two hundred and thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Tavoularis

....................[sgd]....................................................
Associate
Dated: 2 April 2020

Date(s) of hearing: 18 and 19 March 2020

Applicant: In person

Advocate for the Respondent: Mr K Eskerie

Solicitors for the Respondent: Sparke Helmore
ANNEXURE A

APPLICANT’S EVIDENCE

Exhibit No.

Description

Date of document

Date of filing

A1 Statement of Facts, Issues and Contentions Undated 7 Feb 2020

A2
Attachment 1 to SFIC including:

·     Positive Lifestyle Program Certificate dated 29.10.2018

·     The Rush Modified Program Certificate dated 16.05.2019

·     In Charge of my Money Certificate of completion dated 21.05.2019

·     The Fundamentals of Digital Marketing Certificate of Completion dated 01.09.2019
7 Feb 2020

A3 STARTTS Psychological Assessment Report 26 Sept 2019 7 Feb 2020

A4 STARTTS Psychological Assessment Report 3 Dec 2019 7 Feb 2020

A5 STARTTS Psychological Assessment Report 11 Dec 2019 7 Feb 2020

A6 IHMS General Health Summary Undated 7 Feb 2020

A7 Pathology report 26 July 2019 7 Feb 2020

A8 Radiology report 26 July 2019 7 Feb 2020

A9 IHMS Clinical notes 7 Feb 2020

A10 Optometrist progress notes 7 Feb 2020

A11 Letter of support by Male Family Friend/Mentor (Witness: “Mr H”) 27 Sept 2018 7 Feb 2020

A12 Letter of support by MH 28 Sept 2018 7 Feb 2020

A13 Letter of support by Sister JR 20 Jan 2020 7 Feb 2020

A14 Letter of support by the Applicant’s Sister-in-Law (Witness: “Ms MM”) 1 Feb 2020 7 Feb 2020

A15 Letter of support by the Applicant’s Spouse (Witness: “the Applicant’s Spouse”) 1 Feb 2020 7 Feb 2020

A16 Letter of support from Female Family Friend / Mentor (Witness: “Mrs LW”) Undated 7 Feb 2020

A17
·     Correspondence from the AAT to Applicant re: Invitation to Comment

·     Correspondence from the AAT to Applicant re: FOI request

2 Serco complaints responses dated 5.12.19 and 20.12.19 respectively.
7 Feb 2020

A18 Local Court of NSW Examination Order 5 Feb 2020 7 Feb 2020

A19
·     Mission Australia donations in the amounts of $105.00 and $385.00 dated 28.01.2020

·     Participation certificate in the Sydney Airport Runway Run

·     Certificate of Completion for the NRL National Officiating Accreditation Structure
7 Feb 2020

A20 Psychological report of Dr Jacqui Yoxall, Psychologist + CV 17 Feb 2020 17 Feb 2020

A21 Statement of Facts, Issues and Contentions in reply Undated 4 March 2020

RESPONDENT’S EVIDENCE

Exhibit No. Description Date of document Date of filing

R1
Statement of Facts, Issues and Contentions

Including Annexure A
21 Feb 2020 21 Feb 2020

R2 Section 501 G-Documents Various Dates 22 Jan 2020

R3 Affidavit of Victim of the Applicant’s Offending (Witness for the Respondent: “Mr MY”) 17 March 2020 17 March 2020

R4 Tender Bundle Various Dates 17 March 2020

[2020] AATA 872

2 April 2020

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Standing

Statutory Construction

Date(s) of hearing:	18 and 19 March 2020
Applicant:	In person
Advocate for the Respondent:	Mr K Eskerie
Solicitors for the Respondent:	Sparke Helmore

APPLICANT’S EVIDENCE
Exhibit No.	Description	Date of document	Date of filing
A1	Statement of Facts, Issues and Contentions	Undated	7 Feb 2020
A2	Attachment 1 to SFIC including: · Positive Lifestyle Program Certificate dated 29.10.2018 · The Rush Modified Program Certificate dated 16.05.2019 · In Charge of my Money Certificate of completion dated 21.05.2019 · The Fundamentals of Digital Marketing Certificate of Completion dated 01.09.2019	7 Feb 2020
A3	STARTTS Psychological Assessment Report	26 Sept 2019	7 Feb 2020
A4	STARTTS Psychological Assessment Report	3 Dec 2019	7 Feb 2020
A5	STARTTS Psychological Assessment Report	11 Dec 2019	7 Feb 2020
A6	IHMS General Health Summary	Undated	7 Feb 2020
A7	Pathology report	26 July 2019	7 Feb 2020
A8	Radiology report	26 July 2019	7 Feb 2020
A9	IHMS Clinical notes	7 Feb 2020
A10	Optometrist progress notes	7 Feb 2020
A11	Letter of support by Male Family Friend/Mentor (Witness: “Mr H”)	27 Sept 2018	7 Feb 2020
A12	Letter of support by MH	28 Sept 2018	7 Feb 2020
A13	Letter of support by Sister JR	20 Jan 2020	7 Feb 2020
A14	Letter of support by the Applicant’s Sister-in-Law (Witness: “Ms MM”)	1 Feb 2020	7 Feb 2020
A15	Letter of support by the Applicant’s Spouse (Witness: “the Applicant’s Spouse”)	1 Feb 2020	7 Feb 2020
A16	Letter of support from Female Family Friend / Mentor (Witness: “Mrs LW”)	Undated	7 Feb 2020
A17	· Correspondence from the AAT to Applicant re: Invitation to Comment · Correspondence from the AAT to Applicant re: FOI request 2 Serco complaints responses dated 5.12.19 and 20.12.19 respectively.	7 Feb 2020
A18	Local Court of NSW Examination Order	5 Feb 2020	7 Feb 2020
A19	· Mission Australia donations in the amounts of $105.00 and $385.00 dated 28.01.2020 · Participation certificate in the Sydney Airport Runway Run · Certificate of Completion for the NRL National Officiating Accreditation Structure	7 Feb 2020
A20	Psychological report of Dr Jacqui Yoxall, Psychologist + CV	17 Feb 2020	17 Feb 2020
A21	Statement of Facts, Issues and Contentions in reply	Undated	4 March 2020

RESPONDENT’S EVIDENCE
Exhibit No.	Description	Date of document	Date of filing
R1	Statement of Facts, Issues and Contentions Including Annexure A	21 Feb 2020	21 Feb 2020
R2	Section 501 G-Documents	Various Dates	22 Jan 2020
R3	Affidavit of Victim of the Applicant’s Offending (Witness for the Respondent: “Mr MY”)	17 March 2020	17 March 2020
R4	Tender Bundle	Various Dates	17 March 2020