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

CYNQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 545 (13 March 2020)
Division:GENERAL DIVISION
File Number: 2019/8601
Re:CYNQ
APPLICANT

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

DECISION
Tribunal:Member Eteuati
Date:13 March 2020
Place:Brisbane

The decision under review is set aside and a decision in substitution is made revoking the original visa cancellation decision.
........................................................................
Member Eteuati
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of Class XB Subclass 202 protection visa – Applicant does not pass character test –– whether there is another reason why the mandatory cancellation of the Applicant’s visa should be revoked – consideration and application of Ministerial Direction No 79 –– decision under review set aside and substituted
Legislation
Acts Interpretation Act 1901 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
Al-Kateb v Godwin [2004] HCA 37
DMH16 v Minister for Immigration and Border Protection [2017] FCA 448
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
Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66
Minister for Home Affairs v Brown [2020] FCAFC 21
Minister for Home Affairs v Omar [2019] FCAFC 188
Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263.
Omar v Minister for Home Affairs [2019] FCA 279
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member Eteuati
13 March 2020
BACKGROUND

This is an application by CYNQ (“the Applicant”) for review of a decision made by the delegate of the Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs (“the Minister” or “the Respondent’) on 20 December 2019 to refuse to revoke, under section 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), the cancellation of the Applicant’s Class XB Subclass 202 Global Special Humanitarian visa (“GSH visa”).[1]
[1] Exhibit G1, G-documents, G8, pages 38 – 52.
The Applicant first arrived in Australia in 2006 as the holder of a GSH visa.[2] The Applicant was 6 years old when he first arrived in Australia. The Applicant arrived with his mother, two older sisters and an older brother who also held GSH visas.
[2] Ibid, G23, page 110.
The Applicant began offending in 2016, some 10 years after he arrived in Australia.[3] He was first sentenced to a period of imprisonment on 25 January 2018, when he was convicted of “obtain property by deception” in the ACT Magistrates Court and sentenced to six months imprisonment to be suspended upon serving four months. He was next, and most recently, convicted of offences on 30 August 2018. On that occasion, the Applicant was convicted of a number of offences of dishonesty in the Mackay Magistrates Court and was sentenced to 18 months imprisonment to be suspended for three years upon serving four months.
[3] Ibid, G9, pages 54 – 56.
On 7 November 2018, a delegate of the Minister cancelled the Applicant’s GSH visa pursuant to section 501(3A) of the Act.[4]
[4] Ibid, G4, page 31.
The Applicant’s visa was cancelled by the Minister on the basis that the Applicant did not pass the character test as set out in section 501(6)(a) of the Act (when read with section 501(7)(c)), as he had been sentenced to a term of imprisonment of more than

12 months and was serving a full-time term of imprisonment.
On 4 December 2018, the Applicant sought that the cancellation decision be revoked.[5]
[5] Ibid, G11, pages 64 – 65.
On 20 December 2019, the Minister refused to revoke the cancellation of the Applicant’s visa.[6]
[6] Ibid, G8, pages 38 – 39.
On 22 December 2019, the Applicant applied to the Administrative Appeals Tribunal

(“the Tribunal”) for review of that decision.[7]
[7] Ibid, G2, pages 3 – 8.
The matter was heard by the Tribunal on 2 and 3 March 2020. For the reasons below, the Tribunal has decided to set aside the decision under review and for a decision in substitution to be made revoking the original visa cancellation decision. The Tribunal considers that this is the preferable decision in this case.
ISSUES
Pursuant to section 501CA(4) of the Act, the Minister may revoke the decision made under section 501(3A) of the Act to cancel the Applicant’s visa. Subsection 501CA(4) provides:
(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.
The Applicant was invited to make representations to the Minister about revocation of the cancellation of his visa and he made representations in accordance with the invitation. Thus, section 501CA(4)(a) of the Act is satisfied in this case.
The two remaining issues are:
(a)Whether the Applicant passes the character test as defined in section 501 of the Act; and
(b)Whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Tribunal finds that the Applicant passes the character test or that there is another reason why the decision to cancel the Applicant’s visa should be revoked, the cancellation decision must be revoked.
The Tribunal considers that the meaning of “another reason” in subparagraph 501CA(4)(b)(ii) of the Act, is a reason other than that the Applicant passes the character test. The Full Court of the Federal Court has found that there is no residual discretion to be exercised once the Minister (and in this case, the Tribunal) finds that the Applicant passes the character test, or there is another reason why the cancellation decision should be revoked. The Full Court has also found that the “reason” in subparagraph 501CA(4)(b)(ii) of the Act does not mean “any reason” but rather the determinative reason for revocation arrived at after a balancing of factors both in favour and against revocation.
In Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66 the Full Court of the Federal Court (Collier J, with whom Logan and Murphy JJ agreed), after citing with approval the reasons of North ACJ at paragraphs [38] and [39] of his decision in Gaspar v Minister for Immigration and Border Protection[2016] FCA 1166, stated at [31] and [32]:
“I agree with this analysis. The primary Judge in these proceedings found, and the parties are ad idem, that s 501CA(4)(b) requires the Minister to revoke the cancellation if he or she is satisfied of relevant requirements. To that extent his Honour held that ‘may’ in s 501CA(4)(b) means ‘must’.
I consider that this is a correct construction of s 501CA(4)(b).
In relation to the question whether s 501CA(4)(b)(ii) contemplates an evaluative process on the part of the Minister, I respectfully adopt the reasoning of North ACJ in Gaspar [2016] FCA 1166 at [38]- [39]. In so doing, I note that the section does not, for example, require the Minister to revoke a cancellation decision if the Minister finds ‘any’ reason why the cancellation decision ‘could’ be revoked’. The requirement that the Minister revoke a cancellation decision if he or she determines that there is another reason why the cancellation decision should be revoked, imports an assessment by the Minister of the propriety of a revocation decision, balancing factors both in favour and against revocation. This is the exercise upon which the Minister clearly embarked in this case. It follows that I respectfully agree with the view formed by his Honour at [52] and [53] of the primary Judgment.”
[Emphasis in original]
If the Tribunal is satisfied that the Applicant passes the character test or that there is another reason why the cancellation decision should be revoked, the Tribunal must find in the Applicant’s favour. The appropriate decision in these circumstances would be for the decision refusing to revoke cancellation to be set aside and for a decision in substitution to be made revoking the cancellation decision.
EVIDENCE
The Tribunal has considered all of the evidence permissibly before it including the documents described in section 501G of the Act (“G Documents” or “G1”), the documents tendered into evidence by the Applicant and marked as exhibits A1 to A2 and the documents tendered into evidence by the Respondent and marked as exhibits R1 to R2. The evidence contained in these documents is discussed throughout this decision: see “Annexure A” to this decision.
A summary of evidence of witnesses is provided below from paragraph 37 of these reasons.
DOES THE APPLICANT PASS THE CHARACTER TEST?
Section 501(6) relevantly provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or
…
[Emphasis in original]
Section 501(7) relevantly provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
…
[Emphasis in original]
The Applicant will be taken to have a substantial criminal record, and thus not pass the character test, if he has been sentenced to a term of imprisonment of 12 months or more.
Section 501(12) of the Act provides that “imprisonment” includes any form of punitive detention in a facility or institution.
Offending history
An Australian Criminal Intelligence Commission (ACIC) Criminal History Check for the Applicant dated 5 October 2018 shows the following offences committed by the Applicant:

Court Court Date Offence Court Result

Mackay Magistrates Court 30 Aug 2018
Attempted fraud - dishonestly obtains property from another (3 counts)
Convicted and sentenced to a term of imprisonment for 12 months, to be served concurrently, to be suspended for three years after serving 4 months.

Fraud - dishonestly obtains property from another (12 counts)
Convicted and sentenced to a term of imprisonment for 18 months, to be served concurrently, to be suspended for three years after serving 4 months.

Taking a flight using false air passenger ticket Convicted and fined $1000.

ACT Magistrates Court 25 Jan 2018
Obtain property by deception
Convicted and sentenced to imprisonment for 6 months suspended after serving 4 months.

Melbourne Magistrates Court 20 Oct 2017
Theft

Dishonestly undertake in retention stolen goods

Convicted and adjourned to 21 October 2019 - later discharged.

To pay $1000 to the court fund

Dowling Centre Local Court 21 Jul 2017
Goods in personal custody suspected of being stolen

Offence proven warrant to issue

Fined $440 on 16 June 2019

Participate criminal group contribute to criminal activity

Dishonestly obtain financial advantage etc by deception

Offence proven warrant to issue

Joondalup Magistrates Court
12 Apr 2017
Receiving
Fined $500

Give false personal details to police; criminal investigation Fined $250

Perth Magistrates Court 6 Mar 2017 Give false personal details to police; criminal investigation Fined $200

Perth Magistrates Court 1 Mar 2017 Give false personal details to police; criminal investigation
SPENT

Fined $30

Perth Children’s Court 14 Feb 2017 No authority to drive (never held) Fined $100

Hobart CPS 23 Sep 2016
Drive whilst not the holder of a driver license.
Convicted and fined $150

I am satisfied the Applicant has a substantial criminal record for the purposes of subsections 501(6)(a) when read with section 501(7)(c) of the Act, as the Applicant was sentenced to a term of imprisonment of 12 months or more.
Consequently, I am satisfied that the Applicant does not pass the character test.
The only remaining issue is whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether there is another reason why the cancellation of the Applicant’s visa should be revoked, the Tribunal must comply with any directions made by the Minister pursuant to section 499 of 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”) applies. The Direction provides guidance for decision-makers in determining, relevantly, whether there is another reason why the cancellation of the Applicant’s visa should be revoked.
Subparagraph 8(1) of the Direction provides that decision-makers must take into account the primary and other considerations relevant to the individual case.
The relevant considerations in relation to consideration of revocation of a cancellation decision are contained in Part C of the Direction.
Paragraph 13 of the Direction provides for three primary considerations. They are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
Paragraph 14 of the Direction provides for other considerations. They include, but are not limited to:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
Subparagraphs 8(3) to (5) of the Direction provide:
(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
In Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 Colvin J stated at [23]:
“… Direction 65 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.”
The Tribunal considers that Colvin J’s assessment regarding the various considerations in Direction 65 apply equally to the considerations in the Direction.
The principles in paragraph 6.3 of the Direction reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable and are to inform the consideration of each of the primary and other considerations.
The principles in paragraph 6.3 provide a framework within which decision-makers should approach their task of deciding whether to revoke cancellation. The principles in paragraph 6.3 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. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(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 to 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. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(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. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(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 should be allowed to come to, or remain permanently in, Australia.
(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 in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Summary of evidence of witnesses
The following is a summary of the evidence before the Tribunal including evidence of witnesses who appeared before the Tribunal. The evidence referred to below includes evidence provided in written statements submitted to the Department and the Tribunal and evidence given by the witnesses at the hearing in response to questions under cross-examination and from the Tribunal.
The Applicant
The Applicant is a 21 year old who was born in Kenya. He has a partner who is an Australian citizen. They have a two-year-old daughter. All of the Applicant’s known family members reside in Australia including his mother and four siblings.
The Applicant was born in 1999 in a refugee camp in Kenya. He arrived in Australia in 2006 as a six-year-old child with his mother and three of his four siblings. They all arrived on GSH visas. The central criteria for such visas is that a person:[8]
“…is subject to substantial discrimination, amounting to gross violation of human rights, in the applicant's home country and is living in a country other than the applicant's home country…”
or is a member of the family unit of such a person or a family member who is the holder or former holder of a Protection visa or a Resolution of Status visa. In addition, the grant of the visa must normally be proposed by such a family member who is also an Australian citizen or permanent resident, or by an “approved proposing organisation”.
[8] Migration Regulations 1994 (Cth), sch 2, clause 202.211(1)(a).

The “Document for travel to Australia” for the Applicant, his mother and three siblings indicated that the Applicant’s mother was born in Sudan and was a Sudanese citizen. That document also indicated that the Applicant and one of his sisters were born in Kenya and that the two other siblings referred to in the document were born in Ethiopia. The document indicated that the Applicant’s mother was a widow. The GSH visas were granted on 13 October 2005.[9]
[9] Exhibit G1, G-documents, G23, page 110.
In the Applicant’s request for revocation of the cancellation decision which the Department received on 4 December 2018, the Applicant left blank the question enquiring as to the Applicant’s current citizenship.[10] However, consistently with the “Document for travel to Australia”, the Applicant indicated that his mother was a Sudanese citizen. The Applicant did not include any details for his father.
[10] Ibid, G12, page 69.
At the hearing, the Applicant explained that he had very little memory of his time in Africa before he arrived in Australia as a six-year-old. He said that his mother had told him that she had fled Sudan to avoid harm as a result of the Sudanese Civil War. He said that his mother had told him that after leaving Sudan she had moved from one place to another before settling in a refugee camp in Kenya. This is where the Applicant was born.
The Applicant said that he was told that his father, who was a member of the Sudanese army was killed during the Civil War, shortly after the Applicant’s birth.
The Applicant said that although he did not remember much of Africa, he remembered that life there was difficult and lacked security. He said that he remembered his family being given a bag of rice every so often and that they would survive by eating the rice and finding any other ingredients they could to make basic stew. He said that he remembered feeling unsafe and insecure in Kenya and that he witnessed some violence there.
The Applicant said that he did not know whether he was a citizen or national of any country, including Kenya – where he was born, Sudan or South Sudan. Indeed it did not appear that the Applicant was aware of the independence of South Sudan in 2011. The Applicant knew that he was of the Dinka tribe as he said that his mother spoke to him in Dinka. He said that he had been told that his father was also Dinka.
The Applicant said that when the family arrived in Australia in 2006, they were settled in Tasmania. They found adjusting to life in Australia difficult. He said that none of the family spoke English when he arrived, and only spoke Dinka. He said that while he and his siblings had learned to speak English fluently, his mother still struggled with English and still spoke to her children in Dinka.
The Applicant indicated that the family did not have much money in Australia and survived on social security payments made to the Applicant’s mother. The Applicant indicated that although he struggled with academic work at school, he excelled at sports, especially basketball.
The Applicant indicated that his talent for basketball saw him being picked on a number of representative teams. He said that as a teenager, he had been selected to train at the Australian Institute of Sport in Canberra.
The Applicant explained that, as a teenager, he was regularly selected to attend basketball tournaments throughout Australia. But he also explained that it was very difficult for him to attend basketball tournaments as his mother did not have enough money to pay for him to attend these tournaments. The Applicant said that this would often mean that he would miss out on attending tournaments. The Applicant indicated that a coach had secured employment for him at a sporting goods shop. He said that he worked there for three months and that this was the only paid employment that he has ever undertaken.
The Applicant told the Tribunal that he had serious issues with his eyesight. He had an operation on one of his eyes to improve his eyesight in that eye. He said that he needed the same operation on the other eye but could not afford it.
The Applicant said that the first offences for which he was found guilty as a child of, driving without a license, were committed because he could not obtain a driver license due to his poor eyesight.
The Applicant indicated that he relocated from Tasmania to Perth in 2016 or 2017. He indicated that his two older brothers lived there. The Applicant indicated that almost all of his offences were for crimes of dishonesty, and principally for fraud.
The Applicant indicated that his first offences of dishonesty were committed when he was still under 18 in late 2016. This accords with the Applicant’s criminal record. He said that he initially committed offences of dishonesty in order to gain money so that he could attend basketball tournaments. He said that he did so because his mother could not afford to send him to the tournaments. However, the Applicant said that eventually, he was simply offending to gain money to spend. The Applicant indicated that he supported himself financially through Centrelink payments and money that he acquired by fraudulent means.
The means by which the Applicant fraudulently obtain property was summarised by the sentencing judge for the crimes which the Applicant was sentenced on 30 August 2018 as follows:[11]
“Your modus operandi appeared to be that you or an accomplice would purchase stolen credit cards from the internet, often from an overseas website. After buying the cards, you and your accomplices would then attend on shops, and then make purchases using the cards which you knew had been stolen and which you knew had been purchased. I draw the inference that you and your accomplices obtained… [two] credit cards with the intent to use them in the manner in which you did. It was a sophisticated enterprise, in which you were heavily involved. Indeed, for the offences dated on the 11^th of October, I have been told you and your acquaintances attended the stores 16 times over a two-hour period. You selected iTunes and attended on junior staff, picking the junior staff for their lack of knowledge, or inexperience. Your dealings with those staff and your dealings with the stolen cards was detailed, and was successful on many occasions.”
[11] Ibid, G10, page 59.
The property which was dishonestly obtained included two second hand vehicles, scratchy cards, iTunes cards, iPhones, crypto currency, a laptop, a silver bracelet, a silver necklace and a watch. The sentencing judge commented that the amount of the fraud for which the Applicant was sentenced in August 2018 “totalled approximately $30,000”.
The Respondent’s solicitor took the Applicant through police records in relation to all of the Applicants offences. The Applicant admitted that the substance of the police reports in relation to his criminal offending was as described in the reports.
The Applicant admitted that his offending in the ACT, for which he was convicted of obtaining property by deception, was of the same nature as the offences for which he had been convicted in August 2018 in Mackay. That is, he and his acquaintances had unlawfully used credit card details obtained online to make a number of purchases. It appears that most of the purchases made were for iTunes cards. The Applicant indicated that he and his accomplices would use the iTunes cards to play online computer games. He admitted that they would also sell the cards and other property fraudulently obtained for financial gain.
The Applicant indicated that he had been imprisoned on two occasions. First, he was imprisoned for four months in late 2017 to early 2018 in relation to an offence he committed in the ACT. Secondly, the Applicant was imprisoned for four months between mid-July and mid-November 2018 in relation to the offences for which he was sentenced in Mackay in August 2018. On 15 November 2018, the Applicant was released from criminal custody and was taken immediately into immigration detention. The Applicant was held in immigration detention until 10 January 2020 when the Applicant was transferred from immigration detention to the Bathurst Correctional Centre where he is currently being held on remand on a number of charges primarily relating to further offences of dishonesty.
The Applicant has been in a relationship with his partner since around 2016. They have a daughter who was born in March 2018, shortly before the Applicant was imprisoned in July 2018 in relation to his most recent convictions.
The Applicant indicated that he has remained in close contact with both his partner and his daughter. He explained that when he was in prison he would speak with his partner on most days by telephone. He said that his daughter would often be in the room with his partner when they spoke. The Applicant said that when he was in immigration detention from 15 November 2018 until 10 January 2020 he would communicate with his partner and his daughter on most days through an Internet video application.
The Applicant said that his partner and his daughter had visited him in immigration detention on four occasions. He said that he believed that his partner and his daughter had flown from Perth to Sydney to visit him on three occasions in 2019. He said that they made multiple visits to the detention centre on each occasion.
The Applicant indicated that if he were removed from Australia to Africa that his partner and their child, who are Australian citizens, would remain in Australia. He indicated that he believed that if he were removed from Australia it was likely that he would never see his partner or his child again.
The Applicant indicated that one of his sisters had three daughters. The eldest daughter was eight years old and the two younger daughters were twins who were three years of age (“the twins”). The Applicant’s mother, two sisters and his three nieces lived together in Victoria. The Applicant’s sister, the mother of the three children is no longer with the father of the children. She has re-partnered but her partner does not live with her and the children and does not play a parental role in their lives.
The Applicant indicated that he was close to the eight-year-old daughter, as they had lived together in Tasmania before the Applicant relocated to Perth permanently in 2017 and before the Applicant’s mother and his two sisters relocated to Victoria. He said that his sister and the eight-year-old daughter made a trip from Victoria to Queensland in late 2018, and that they both visited him in immigration detention. The Applicant admitted that he had had very little contact with his twin nieces.
The Applicant indicated that his eldest brother in Perth had four, possibly five, sons. He had spent time with the eldest three sons in Perth before he was imprisoned. The Applicant’s mother’s sons were cared for by the Applicant’s brother and his wife. The Applicant said that the eldest three sons were aged seven, five and three years old respectively. A fourth son was born while he was in criminal custody and the Applicant indicated that his mother may have mentioned that a fifth son was also born while he was in prison or immigration detention, although, he could not be sure. He said that he had some contact with these children as his brother would call him on occasion and sometimes he would speak with the children. The Applicant indicated that the last time that he spoke with his brother or his brother’s sons was Christmas 2019, when his brother called him to wish him a happy Christmas.
The Applicant indicated that he would never reoffend. He said that he had not realised that he could have his visa cancelled and he could be removed from Australia to Africa until he received notification of the cancellation of his Visa in early November 2018. The Applicant indicated that he wished to remain in Australia, and that if he were allowed to remain, he would live with his partner and daughter in Perth. He said that he planned on gaining employment and that his brother in Perth could help him to that end. He said that he eventually planned to undertake further training at TAFE to secure qualifications to find better jobs. The Applicant indicated that he now realised that any future offending could result in him being removed from Australia to Africa. He said that he believed that this would mean that it would be likely that he would never be able to return to Australia and would never see his mother, his siblings, his partner or his daughter in person ever again. The Applicant indicated that his father had been killed when he was very young, resulting in him growing up without a father. He indicated that he did not wish for his daughter to have to grow up without a father. He said that he now realised that his fraudulent offending for financial gain was “not worth it”. He indicated that his time in immigration detention and criminal custody had a salutary effect on him and had given him time to reflect on his past offending and to become determined never to reoffend.
The Applicant emphasised that Australia was the only country that he knew. Further, the Applicant stated that almost all of his memories where those of his life in Australia. He said that all of his family members were in Australia, including his wife and daughter, as were all of his friends.
In his request for revocation of the cancellation decision, the Applicant indicated that he had “nobody and nothing” in Africa and that “Australia is all I know”.[12] The Applicant indicated that his family in Australia, including his partner and their child, would be “mentally and emotionally broken” if he were removed from Australia. The Applicant indicated that if he were returned to Africa that he would be homeless. He said that the lack of social security in Africa would mean that he would have “no money for food or basic living”. In response to a question as to whether there were any other problems that he would face if he were returned to Africa, the Applicant stated “Homelessness, poverty, hunger etc”.[13]
[12] Ibid G12, page 76.
[13] Ibid, pages 68 – 80.
The Applicant indicated that he had been taken into criminal custody at the Bathurst Correctional Centre in relation to nine new criminal charges which had been brought against him by the New South Wales Police Force. After the Tribunal administered the appropriate warnings in relation to the privilege against self-incrimination and legal professional privilege, the Tribunal allowed the Respondent’s solicitor to ask the Applicant questions in relation to those charges.
The Applicant indicated that he had pled “not guilty” to the charges. The Applicant was asked to read through police records which appeared to relate to the charges. He was then asked whether he had any knowledge of the factual circumstances surrounding the charges. He said that he had no knowledge of what was alleged, did not know why he had been charged and that the police were in the process of preparing a brief outlining the charges. He said that he was due to receive that information in late March.
The Applicant’s partner
The Applicant’s partner provided a statement to the Department in support of the Applicant’s application for revocation of the cancellation decision.[14] She also provided a statement to the Tribunal in support of the Applicant.[15] The Applicant’s partner gave evidence by telephone at the hearing.
[14] Ibid, G13, page 82.
[15] A1, letter of support from the Applicant’s partner.
The Applicant’s partner is an Australian citizen who lives with her mother, daughter and two brothers. She said that the Applicant had also been living in the same household with them prior to his arrest in 2018.
The Applicant’s partner did not finish secondary schooling and has never been employed. She is currently undertaking a business course. She is supported by her mother in the sense that her mother allows her and her daughter to live rent-free in the mother’s house. The Applicant’s partner indicated that her mother does not otherwise support her financially. The Applicant’s partner indicated that her parents are separated and that her father also lives in Perth. The Applicant’s partner indicated that she supports herself and her daughter on Social Security payments.
The Applicant’s partner indicated that she had met the Applicant in or around 2016, whereupon they entered into a romantic relationship. Their daughter was born in March 2018. The Applicant’s partner indicated that she was unaware of the Applicant’s offending until he was arrested in 2018. She said that he has since fully disclosed his criminal offending to her.
The Applicant’s partner indicated that both she and her daughter would be significantly adversely affected if the Applicant were removed from Australia. She indicated that she would lose her partner permanently if he were removed, which would be emotionally devastating for her.
The Applicant’s partner indicated that her daughter was almost two years old and knew the Applicant was her father. She said that her daughter would communicate with the Applicant almost every day on the telephone or an Internet video application. In addition, she said that she would speak with her daughter about the Applicant and show her photographs of him.
The Applicant’s partner indicated that she had saved up money which she received from Centrelink in order to buy aeroplane flights from Perth to Sydney for her and her daughter to visit the Applicant. She said that she had made two such visits in 2019. She said that both her and her daughter had visited the Applicant in immigration detention twice during each visit.
The Applicant’s partner indicated that she dearly wished for the Applicant to be able to remain in Australia. She indicated that the Applicant would live with her and her daughter at her mother’s house if he were allowed to remain. She said that the Applicant would be able to help to support her and their child both financially and otherwise. She indicated that her family members did not provide her much assistance in caring for her child. She indicated that it had been extremely difficult and stressful for her to raise their daughter by herself.
The Applicant’s partner indicated that if the Applicant were allowed to remain in Australia, they both planned to secure employment so that they could move out of her mother’s house and move into their own place with their child.
The Applicant’s partner indicated that it was clearly in their child’s best interest that the Applicant be allowed to remain in Australia as their child would grow up without a father if the Applicant were removed. The Applicant’s partner indicated that this would be detrimental to her daughter. The Applicant’s partner indicated that the Applicant was a great father and would play a positive parental role in their child’s life if he were allowed to remain in Australia.
The Applicant’s partner indicated that she strongly believed that the Applicant would never reoffend. She believed that his time in prison and immigration detention had greatly changed him, such that he would not reoffend. She believed that the Applicant now knew that if he continued to offend he would be removed to Africa and permanently separated from all of his loved ones in Australia, including her and their daughter. She said that she truly believed that this knowledge would prevent the Applicant from ever reoffending.
Other statements
The Tribunal has also taken into account other statements provided to the Department and the Tribunal in support of the Applicant including statements from the Applicant’s brother, sister, an African community leader from Melbourne and a school counsellor at a school the Applicant had attended. The Tribunal has placed weight on the statements as going to the risk that the Applicant will reoffend; the Applicant’s ties to Australia; impediments the Applicant may face if removed; and hardship to the Applicant and his family members.

The Tribunal notes that it has placed very little weight on the letter from the African community leader. The Applicant admitted that he had never met the community leader. In addition there were numerous inaccuracies in the community leader’s letter including that the Applicant had been convicted of robbery, that he had been living in Melbourne rather than Perth, and that the Applicant would live in Melbourne if he were allowed to remain.
PRIMARY CONSIDERATION A: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Subparagraph 13.1(2) of the Direction provides that decision-makers should 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.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, subparagraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors including:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(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 position they hold, or in the performance of their duties, are serious;
(d)Subject to subparagraph (b) above, the sentence imposed by the courts 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)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
The offences committed by the Applicant cannot be described as violent or sexual crimes. The offences were not of a violent nature committed against women or children. It is not apt to say that the offences were committed directly against vulnerable members of society, Government representatives or officials. It is true that the Applicant, on three occasions, gave false personal details to police when he had just turned 18. However, all three offences resulted in small fines and one of the offences is a spent offence. It is also not apt to describe these offences as offences “against” Government representatives or officials.
It is also true that there was evidence that in some of the fraud related activities the Applicant and his co-accused approached young or inexperienced employees, apparently because they were seen as less likely to suspect fraudulent activity. However, there was no evidence that these employees were the victims of the fraud. The evidence appeared to be that they were simply employees of businesses. In those circumstances it is not apt to describe the offences as offences “against” those employees.
It does not appear that the Applicant has provided false or misleading information to the Department, such as to justify any significant increase in an assessment of the seriousness of the offending or its nature.
The Applicant has not been convicted of an offence after being given a warning in writing about the consequences of further offending in terms of his migration status. The Tribunal notes that the absence of this type of warning should not be considered to weight in the Applicant’s favour.
The Applicant has not been convicted of committing a crime while in immigration detention; during an escape from immigration detention; or after an escape from immigration detention.
The Applicant committed a number of offences of dishonesty over a period of approximately two years between the ages of 17 and 19. He has only been sentenced to periods of imprisonment on two occasions. First, on 25 January 2018 he was sentenced to six months imprisonment to be suspended after serving four months. Secondly, on
30 August 2018, he was sentenced to a “global sentence” of 18 months imprisonment to be suspended for three years after serving four months. Therefore, while he was sentenced to periods of imprisonment of six months on the first occasion and 18 months on the second occasion, significant leniency was shown to the Applicant in that he was only required to serve four months actual imprisonment on each occasion.
It is difficult to gauge the cumulative effect of the Applicants offending other than to say that his offending resulted in a number of people or businesses being deprived of their property.
In sentencing the Applicant on 30 August 2018, the sentencing judge remarked that:[16]
“Offences of this kind are taken very seriously by the courts, as is the number of offences and the consistency of those offences to which you have entered a plea of guilty here today. There is a very real need for courts to take into account deterrence, both personal and general, and also community denunciation of this type of offending. There is a financial loss to your victims, which is substantial, with next to no prospect of any compensation being paid.”
[16] Exhibit G1, G-documents, G10, page 62.
The Tribunal considers that the Applicant’s fraudulent conduct was serious. But it must be understood that there are very different levels of seriousness of conduct in these types of matters. In one sense it could be said that any criminal activity is serious. The Direction points out that the Australian community expects non-citizens to obey all Australian laws while in Australia. The Direction does not prescribe any non-serious crimes. That is not to say that there may not be conduct which is not considered serious.
The Tribunal fully appreciates many different people and businesses in Australia have been deprived of their property as a result of the Applicant’s conduct. That in and of itself indicates a level of seriousness of the offending. Members of the Australian community are entitled to not be unlawfully and fraudulently deprived of their property.
The Tribunal considers that the Applicant’s offence of driving without a license when he was a child and giving false personal details to police when he had just turned 18, are far less serious. That is reflected in the small fines which were imposed by the courts for these offences.
In this matter, while the Tribunal finds that the Applicant’s fraudulent conduct was serious, the Tribunal considers that his conduct as a whole falls towards the lower end of the spectrum of seriousness. The leniency of the sentences handed down by the courts supports this view.
The Applicant’s crimes are not ones of violence. It cannot be said that the Applicant poses any real risk of violence to members of the community. Equally, the Applicant’s offences are not of the type which could obviously lead to great harm to members of the community, such as in cases where serious drug crime is present.
The nature of the Applicant’s offending has been described above in these reasons. For the most part it involved the Applicant dishonestly depriving members of the Australian community of their property and related offences.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 13.1.2 of the Direction provides that in considering the risk to the Australian community presented by an Applicant, the Tribunal must have regard to the two
sub-considerations listed in subparagraph 13.1.2(1) of the Direction cumulatively. They are:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)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 re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct
If the Applicant were to re-engage in offences similar to his offences of dishonesty, this would likely result in members of the Australian community and Australian businesses being unlawfully deprived of their property.
If the Applicant were to re-engage in offences similar to his offences of giving false personal details to police, this would likely result in potential obstruction, at least temporarily, of the ability of police to readily carry out their functions.
If the Applicant were to re-engage in offences similar to his offences of driving without a license, this could result in the Applicant putting the safety of other road users at risk.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
There was no expert evidence before the Tribunal as to the likelihood that the Applicant would reoffend.
As the Respondent’s solicitor submitted, there is no evidence that the Applicant has undertaken any formal rehabilitation. The Respondent’s solicitor pointed out that the Applicant was not deterred from reoffending by the sentences handed down by the courts in the past, and that he had failed to attend court as directed on a number of occasions. The Respondent’s solicitor also pointed out that the Applicant offended after the birth of his daughter and contended that the Tribunal should not accept the Applicant’s contention that he will not reoffend because he wants to “be there for his daughter”. The Tribunal considers that there is some force to these submissions.
The Respondent’s solicitor also noted that the Applicant has not been pleasant during his period in immigration detention. His behaviour was described by the Respondent as “abusive and aggressive”. The Respondent also indicated that there were reports that traces of methamphetamine were found inside objects belonging to the Applicant. As these matters did not result in any convictions against the Applicant, or indeed any charges, and in circumstances where these matters were not put to the Applicant during the hearing, the Tribunal places no weight on these matters.
The Tribunal is also concerned that the Applicant’s offending began in his adolescent years and that there was some frequency to the offending. The Tribunal is also concerned that apart from a three month period where he worked in a retail sporting shop, the Applicant has never been gainfully employed. It appears that in the two years prior to his arrest in 2018, the Applicant had largely supported himself by his fraudulent activity.
The Tribunal has considered that the Applicant has been charged with nine offences which are yet to be resolved. However, the Applicant is entitled to the presumption of innocence. He has said that he is not guilty of the offences and has no knowledge of why he has been charged. In those circumstances, the Tribunal considers that the most that it can make of the outstanding charges is that the New South Wales Police Force considered that they had sufficient evidence upon which to charge the Applicant for the offences.
The Applicant explained that he began offending in his teenage years in order to fund trips to interstate basketball competitions. However, he freely admitted that he continued with his crimes of dishonesty out of greed.
The Tribunal has also considered that there are a number of factors which may suggest that the Applicant is less likely to reoffend. Chief amongst these is the Applicant’s current realisation that he can be removed from Australia to Africa if he reoffends. The Applicant indicated that he only realised that this was a realistic possibility when his visa was cancelled in November 2018. The Tribunal is willing to accept that prior to that time, the Applicant did not fully comprehend the gravity and seriousness of his offending in the sense that he did not realise that he could be returned to Africa if he reoffended. That is especially so in circumstances where the Applicant had never been warned that further offending may result in removal from Australia. The Applicant is now acutely aware that it is a very real possibility.
The Tribunal accepts the Applicant’s evidence that he now realises that if he ever reoffends that it could result in his removal to Africa, where he has no known relatives and in all likelihood would never see his mother, siblings, nieces and nephews, partner or his child ever again. The Tribunal accepts that the Applicant realises the devastating emotional effect that his removal may have on him and his family members in Australia. The Tribunal considers that that realisation should go some way in mitigating the risk that the Applicant will reoffend.
As mentioned previously, the Tribunal has also taken into account the letters of support from members of the Applicant’s family and other members of the Australian community. The Tribunal accepts that the Applicant will have support in the community, especially from his eldest brother who has indicated that he will assist the Applicant in securing employment, and his partner and her family.[17]
[17] Ibid, G14, page 84.
After taking all these matters into account, the Tribunal considers that there is a medium or moderate risk that the Applicant will reoffend.
Conclusion: Primary Consideration A
The Tribunal has found that although the Applicant’s offending conduct is serious, that it is at the lower end of the spectrum of seriousness. The nature of the Applicant’s more serious offending was crimes of dishonesty resulting in depriving members of the Australian community from their property.
The Tribunal has found that if the Applicant were to reoffend in Australia, the most likely outcome is that members of the community and businesses would be deprived of their property.
The Tribunal has found there is medium or moderate risk that the Applicant will reoffend if he is allowed to remain in Australia.
After giving thoughtful and thorough consideration to this primary consideration, the Tribunal concludes that the primary consideration of protection of the Australian community weighs against the revocation of the cancellation of the Applicant’s visa.
However, although the Tribunal has found that there is a medium or moderate risk that the Applicant will reoffend, the Tribunal has found that the Applicant’s crimes are at the lower end of the spectrum of seriousness. There is no real risk that the Applicant will cause physical harm to members of the Australian community. Rather, there is a moderate risk that the Applicant may unlawfully deprive members of the community of their property. In those circumstances, the Tribunal attributes low weight against revocation of the cancellation of the Applicant’s visa to the primary consideration of the protection of the Australian community.
PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Subparagraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is, or is not, in the best interests of a child who may be affected by the cancellation of the Applicant’s visa. Subparagraphs 13.2(2) and (3) respectively contain further stipulations. The former provides that, for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Subparagraph 13.2(4) of the Direction provides a list of factors which must be considered under this consideration where relevant. These are:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant has a two year old daughter in Australia. The Applicant played a parental role in his daughter’s life in the short time prior to his incarceration. The Tribunal accepts that the Applicant is very close with his daughter. The Applicant’s partner indicated that the Applicant and their daughter speak with each other almost every day. Her mother made two trips from Perth to Sydney last year so that she and her daughter could spend time in person with the Applicant. The Applicant’s partner told the Tribunal that her daughter knows the Applicant is her father and that she speaks with her daughter about the Applicant and shows photographs of him to her.
The Tribunal accepts that if the Applicant is removed from Australia it is likely that he will never see his daughter again in person. It is unclear from the evidence whether he would be able to maintain contact with his daughter by telephone or other electronic means. That is in part because it is unclear to which country the Applicant would be removed and it appears that the Applicant is likely to be destitute if he is returned to a country in Africa.
The Tribunal accepts the Applicant’s partner’s evidence that she will be much better off emotionally and financially if the Applicant is allowed to remain in Australia. The Tribunal considers that this would benefit the Applicant’s child significantly.
Conversely, the Tribunal accepts that the child will be very upset if her father is removed from Australia. In addition, the child is likely to be significantly adversely affected by the negative impact of the Applicant’s removal on the child’s mother, both emotionally and financially.

The Tribunal considers that if the Applicant is allowed to remain he will resume a parental role in respect of the child. Whether that role will be a positive one will depend in large part on whether the Applicant reoffends.
The Tribunal considers that it is in the best interests of the Applicant’s two year old child for the Tribunal to revoke the cancellation of the Applicant’s visa so that she can grow up with her father in Australia. The Tribunal considers that the best interests of the Applicant’s child weigh heavily in favour of revocation of the cancellation decision.
The Applicant has three nieces aged eight and three (the twins) who live in Australia. They are the daughters of the Applicant’s sister.
The Tribunal does not have any direct evidence from his nieces as to whether it is in their interests that the Applicant be able to remain in Australia. There is no evidence that the Applicant has ever abused his nieces in any way. There is no evidence of the nieces suffering any trauma arising from the Applicant’s conduct.
The Tribunal accepts that the elder niece is close with the Applicant. They lived together in Tasmania before the Applicant relocated to Western Australia. In addition, that niece visited the Applicant late last year. The Tribunal accepts that the twins do not have a strong connection or relationship with the Applicant. However, the Tribunal finds that the Applicant’s nieces are likely to be affected negatively if the Applicant is removed from Australia as that children’s mother, their aunt and grandmother, with whom they live, will be severely emotionally affected if the Applicant is removed from Australia.
For the purposes of this decision, the Tribunal is willing to accept that it is in the best interests of each of the Applicant’s nieces for the Tribunal to revoke the cancellation of the Applicant’s visa. However, the Tribunal places only low weight in the Applicant’s favour on this consideration as it relates to the Applicant’s nieces.
The Applicant has four or five nephews in Australia. They are the sons of the Applicant’s eldest brother. The eldest three nephews are aged seven, five and three respectively. A fourth nephew, and possibly a fifth were born while the Applicant was detained.
The Tribunal accepts that the three eldest boys have spent time in person with the Applicant when he was in Perth and have a relationship with him. The Tribunal accepts that all of the nephews have had some contact with the Applicant over the telephone or by video application while the Applicant has been detained.
The Tribunal accepts that the youngest two nephews do not have a strong connection or relationship with the Applicant. However, the Tribunal finds that all four or five boys are likely to be negatively affected if the Applicant is removed from Australia as that children’s father, with whom they live, will be severely emotionally affected if the Applicant is removed from Australia.
For the purposes of this decision, the Tribunal is willing to accept that it is in the best interests of each of the Applicant’s nephews for the Tribunal to revoke the cancellation of the Applicant’s visa. However, the Tribunal places only low weight in the Applicant’s favour on this consideration, as it relates to the Applicant’s nephews.
Conclusion: Primary Consideration B
Overall, the Tribunal accepts that it is in the best interests of each of the children mentioned above for the Tribunal to revoke the cancellation of the Applicant’s visa.
The Tribunal places significant weight on this consideration as it relates to the best interests of the Applicant’s daughter. The Tribunal places only low weight on this consideration as it relates to the best interests of the Applicant’s nephews and nieces.
PRIMARY CONSIDERATION C: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Subparagraph 13.3(1) of the Direction states:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.”
How are those expectations determined?
The decisions of Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500 establish that:
·the concept of community expectations is not a matter to be measured as though it is a provable fact. It is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is an assessment of community values made on behalf of that community;
·it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations; and
·the Government’s views in relation to community expectations are to be found in the Direction itself. It is open to the Minister to make a statement of the Government’s views as to the expectation of the Australian community, as it has in the Direction, and for the Tribunal to act on that statement.
These principles were confirmed recently by the Full Court of the Federal Court in

FYBR v Minister for Home Affairs [2019] FCAFC 185
(“FYBR”). In FYBR the Full Court also established that the principles in paragraph 6.3 of the Direction, including the principles in subparagraph 6.3(5) and (7) of the Direction can inform the weight to be attributed to the expectations of the Australian community. The attribution of weight to this consideration is a matter for the relevant decision-maker.
In the present case, the Applicant failed to meet the expectation of the Australian community to abide by the law: see subparagraph 13.3(1) of the Direction. This expectation was breached when the Applicant committed numerous offences between 2016 and 2018.
The Tribunal has considered and taken into account the principles in paragraph 6.3 of the Direction including:
·the principle that the Australian community expects that the Australian government should cancel the visas of non-citizens if they commit serious crimes in Australia (see subparagraph 6.3(2) of the Direction); and
·that a non-citizen who has committed a serious crime should generally expect to be denied the privilege of staying in Australia (see subparagraph 6.3(3) of the Direction).
Against these factors, the Tribunal has considered that Australia may afford a higher level of tolerance to criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life or from a very young age

(see subparagraph 6.3(5) of the Direction). In circumstances where the Applicant has lived most of his life in Australia, and has lived here from a very young age, the Tribunal considers that the Applicant is to be afforded a higher level of tolerance.
The Tribunal has also considered that for most of his life in Australia the Applicant has made a positive contribution to the Australian community. He began offending some
10 years after he arrived in Australia. Prior to that time, the Applicant was attending school and participating in sports including playing representative basketball (see subparagraph 6.3(7) of the Direction).
The Tribunal has also considered that if the cancellation of his visa is not revoked this will have a severe negative impact on his partner, his child, his mother and his siblings. The Tribunal finds that there would also be some negative effect, although limited, on his nephews and nieces. Apart from the Applicant’s mother, who is a permanent resident, all of his other family members are Australian citizens (see subparagraph 6.3(7) of the Direction).
Conclusion: Primary Consideration C
Overall, given that the Applicant failed to meet the expectation of the Australian community to abide by the law, the Tribunal finds that this consideration weighs against the Applicant.
However, because the Applicant’s offending was at the lower end of the spectrum of seriousness, he is to be afforded a higher level of tolerance because he has lived here for most of his life and from a very young age, the length of time that he has made a positive contribution to the community and the severe negative effects of cancellation on the Applicant’s immediate family members in Australia, the Tribunal places low weight on this consideration against revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
While the list of “other” considerations in the Direction is not exhaustive, there are five “other considerations” named in the Direction under subparagraph 14(1):
(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.
(a) International non-refoulement obligations (and claims of harm or hardship)
Paragraph 14.1 of the Direction provides:
“(1) A 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-refoulement 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.
(2) The 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.
(3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501 CA 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).
(4) Where 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 non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
(5) If, 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 W R) visa (section 501 E 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).
(6) In 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 criminal 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.”
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. It was thought that this issue would be settled by a five-member bench of the appellate jurisdiction of the Federal Court in Minister for Home Affairs v Omar [2019] FCAFC 188 (“Omar”).
In the Omar appeal, a Full bench of the Full Court (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ) found that they did not need to decide the issue. However, the result of the Full Court decision appears to be that the answer to the question 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, appears to be of less significance than may have previously been thought.
In short, this is because the Full Court in Omar has found that a decision-maker must give meaningful consideration to clearly articulated claims of harm made by the Applicant, including those claims, which if made out, would result in Australia owing non-refoulement obligations in respect of the Applicant. This will include a decision-maker making findings of fact as to whether the feared harm is likely to eventuate by addressing the claims in the way they have been expressed by the Applicant.
The Full Court emphasised the distinction between the harm, or the risk of harm and hardship that a person claims and the assessment of whether a person is one in respect of whom Australia owes non-refoulement obligations. The assessment of whether a person is one in respect of whom Australia owes non-refoulement obligations will depend on a decision-maker’s findings in relation to the harm or hardship that an Applicant may face if returned.
The Full Court found that a decision-maker must give meaningful consideration to a clearly articulated and substantial or significant representation on risk of harm claimed, independently of a claim concerning Australia’s non-refoulement obligations. There has to be active intellectual engagement with the Applicant’s claims relating to the risk of harm. The significance of any particular matter raised in the representations is to be assessed by reference to the manner in which the matter is expressed.
The Full Court found that a decision-maker must do more than simply acknowledge or note that claims of harm that have been made. Depending on the nature and content of the representations, the decision-maker may be required to make specific findings of fact, including on whether the feared harm is likely to eventuate, by reference to relevant parts of the representations.
The Tribunal considers that the result of the Full Court decision in the Omar appeal is that decision-makers must engage properly with, and consider all claims of harm made by an Applicant, including those claims which, if made out, would result in Australia owing

non-refoulement obligations in respect of the Applicant. Engaging properly with claims of harm made by an Applicant may require a decision-maker to make specific findings of fact including, whether the feared harm is likely to eventuate. The claims of harm must be addressed in accordance with the way that they have been expressed by the Applicant.
If the Tribunal fails to make a finding on a substantial, clearly articulated argument relying upon the established facts, this can be both a failure to accord procedural fairness and a constructive failure to exercise jurisdiction.[18] The Tribunal must have regard to the representations put as a matter of substance.[19]
[18] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263.
[19] Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 (Rares and Robertson JJ at [45]).
The Applicant has not made any express claims that his return to Africa will be in breach of Australia’s international non-refoulement obligations. The extent of the Applicant’s claims to fear harm or hardship if he were return to Africa are that he would face “homelessness, poverty, hunger” and that he would be going back to “nobody and nothing”.
The extent to which it could be said that the material before the Tribunal may suggest that non-refoulement obligations may be relevant in this case are that the Applicant held a GSH visa, was born to Sudanese parents in a refugee camp in Kenya, and that his father died fighting in the Sudanese civil war.
The problem for the Tribunal in this case, is that there is very little evidence to substantiate the position that Australia would be in breach of its international

non-refoulement
obligations if it returned the Applicant to Africa. There is no evidence before the Tribunal about the history of, or current situation in, Kenya, Sudan or South Sudan. In addition, while the Applicant held a GSH visa he has never been assessed by Australia for a Protection visa and has never been determined by Australia to be a refugee or someone who is owed complementary protection. It is open for the Applicant to apply for a Protection visa if he is unsuccessful with his application before the Tribunal. Indeed, the Applicant told the Tribunal that if he was unsuccessful before the Tribunal that he would apply for a Protection visa.
The Tribunal has assessed the claims that the Applicant has made of hardship if he is returned to Africa as best it can on the sparse evidence that it has. As the Tribunal has no evidence about Kenya, Sudan or South Sudan, including any evidence of social security, health or accommodation programs in any of these countries, the Tribunal accepts that there is a real risk that the Applicant may suffer from homelessness, poverty and hunger if he were return to Africa. The Tribunal accepts that the Applicant would know no one in any of these countries.
On the evidence before the Tribunal, or lack thereof, the Tribunal cannot be satisfied that there is a real chance that the Applicant will suffer serious harm owing to any refugee Convention related ground if he were returned to Kenya, Sudan or South Sudan. Similarly, on the evidence before the Tribunal, or lack thereof, the Tribunal cannot be satisfied that there is a real risk that the Applicant would suffer significant harm if he were returned to Kenya, Sudan of South Sudan. That is not to say that no such risk or chance of harm exists. Rather, there is simply insufficient evidence before the Tribunal upon which any such findings could be made.
There is however a consequence which arises on the material before the Tribunal which may potentially seriously adversely affect the Applicant if his visa remains cancelled. That is the prospect of prolonged detention in Australia. That possibility arises as there has been no definitive assessment by the Department as to the Applicant’s country of nationality, or indeed whether he has one. The Minister’s delegate, in this decision not to revoke the cancellation of the Applicants visa stated:[20]
“However he states that he would experience homelessness, poverty and hunger were he to be removed to his home country, which I take to be South Sudan”.
[20] Exhibit G1, G-documents, G8, page 48.
No explanation is given as to why the delegate decided to “take” the Applicant’s home country to be South Sudan. The Respondent’s written contentions go further and assert that the Applicant is a “citizen of South Sudan [Emphasis added]”.[21] However, confusingly, those same contentions state:[22]
“The Minister notes that, however limited, the applicant will be entitled to any social, medical and economic support available to citizens in Sudan”.
[Emphasis added]
[21] Respondent’s Statement of Facts, Issues and Contentions, dated 10 February 2020, page 2, para [8].
[22] Ibid, page 12, para [53].

The Respondent’s solicitor was asked during the hearing for the basis for the assertion that the Applicant was a citizen of South Sudan. The Respondent’s solicitor responded that he wished to seek to establish the Applicant’s citizenship by asking the Applicant about his citizenship status under cross-examination. The Tribunal reminded the Respondent’s solicitor that the Applicant was not an expert in the citizenship law of Sudan or South Sudan and that he had never been to either of those countries. In addition, there was no evidence before the Tribunal as to the citizenship law of either of those countries. The Applicant indicated that he was not sure whether he was a citizen of any African country.
As far as can be ascertained, the Applicant was born in Kenya to Sudanese parents in 1999. That was before the independence of South Sudan in 2011. Therefore, the Applicant’s parents could be from either what is now Sudan or South Sudan. Equally it is possible that one parent is from each country. There is no evidence before the Tribunal as to whether the Applicant is entitled at law to citizenship of Kenya, Sudan or South Sudan. Even if he was, there is no evidence that as a matter of practicality that any of these countries would accept the Applicant as a national of that country. There is no evidence of how long it may take to establish that the Applicant was a national of any of these countries. Even if one of these countries accepted that the Applicant was a national of that country, there is no evidence before the Tribunal that any of the three countries would accept removal of the Applicant to any of the countries.
The Tribunal notes that while giving oral submissions at the conclusion of the second day of the hearing, the Minister’s representative indicated that he had a document prepared by the Department which contained some information about the laws of citizenship of Sudan and South Sudan. The Tribunal refused to take that document into evidence. First, the Respondent indicated that there was no expert in Sudanese or South Sudanese law to explain to the Tribunal the contents of the document or the citizenship law of Sudan or South Sudan.
Secondly, the Respondent said the document did not contain any information as to whether Sudan or South Sudan would, as a practical matter, accept as its citizens, persons who fell within the law as stated in the document.
Thirdly, the Respondent told the Tribunal that the document did not contain any information as to whether Sudan or South Sudan accepted voluntary or involuntary removals of its Nationals from Australia.
Fourthly, and most importantly, the Respondent sought to tender the document while making submissions on the second day of the hearing. The Applicant, who was

self-represented, did not have the document, and there was no way of giving the Applicant a fair opportunity to consider the document and respond. The Tribunal was not satisfied that adjourning the matter would give the Applicant that opportunity. That is because it was apparent that the Applicant was not being given material sent to him by the Tribunal or the Respondent in a timely fashion while he has been in prison.
The result of this lack of evidence, is that the Tribunal considers that there is a real possibility that the Applicant may be stateless in a legal or practical sense. Even if the Applicant is not stateless, it is not clear how long it would take, if ever, for Kenya, Sudan or South Sudan to accept removal by Australia of the Applicant to one of those countries.
Circumstances may arise in cases where, from a practical perspective, irrespective of any non-refoulement obligations, it is not possible or reasonably practicable to remove an Applicant from Australia: see for example the circumstances in Al-Kateb v Godwin [2004] HCA 37. In circumstances where it is not reasonably practicable to remove a non-citizen, because, for example, the proposed receiving country will not accept the non-citizen, that person will not be able to be removed, not because of Australia’s non-refoulement obligations, but because the proposed receiving country will not accept them. This conclusion is in no way at odds with the decision of North ACJ in DMH16 v Minister for Immigration and Border Protection [2017] FCA 448, where his Honour found, that as a matter of law, a person in respect of whom international non-refoulement obligations was owed could not be detained indefinitely because of the effect of section 198 when read with section 197C of the Act. That is, those provisions make it clear that the fact that a person is owed non-refoulement obligations does not make it reasonably impracticable to remove an Applicant. Indeed, holding a person in detention in Australia cannot be a breach of Australia’s international non-refoulement obligations.
Prolonged detention is however a real possibility for the current Applicant, and this would obviously result in significant harm or hardship to him. The Tribunal considers that that possible prolonged detention of the the Applicant, along with the other hardships that have been already identified in these reasons weigh significantly in the Applicant’s favour.
(b) Strength, nature and duration of ties
Paragraph 14.2 of the Direction provides:
… Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the noncitizen began offending soon after arriving in Australia; and
(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of cancellation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Applicant first arrived in Australia in 2006 when he was a six years old. He has lived in Australia ever since. The Applicant began offending 10 years after his arrival when he was 17 years old. The Applicant did not begin offending soon after arriving in Australia. Prior to his offending the Applicant was making a positive contribution to the Australian community by attending school and playing representative basketball.
Unsurprisingly, the Applicant remembers very little of his life before arriving in Australia. It is also unsurprising that the Applicant considers himself to be Australian. He undertook his primary and secondary education in Australia. He has made strong links with the basketball community in Australia. The Applicant provided the Tribunal with a number of letters of support from family and acquaintances in Australia.
The Applicant has an Australian citizen partner and an Australian citizen child. All of his siblings and their children are Australian citizens. Moreover, his mother is an Australian permanent resident.
The Tribunal finds that cancellation in this case will have a substantial and ongoing negative affect on the Applicant’s immediate family in Australia, including his partner and his child. The Tribunal considers that the cancellation of the Applicant’s visa would have a significant negative effect on the Applicant’s partner. As with his child, whose interests were considered previously as a primary consideration, the Tribunal finds that the effect of cancellation for the Applicant’s partner would be that she would be permanently separated from the Applicant and would have to raise and provide for their child on her own.
The Tribunal considers that the cancellation of the Applicant’s visa would have a significant negative effect on the Applicant. The Applicant would be permanently separated from his friends and family in Australia. In all likelihood, the Applicant would never be able to return to Australia, where he has been raised since he was a young child; the only country he knows as home.
Overall, the Tribunal finds that the Applicant has strong and enduring ties to Australia forged over a lifetime. The Tribunal finds that this consideration weighs against cancellation of the Applicant’s visa. The Tribunal places significant weight on this consideration in the Applicant’s favour.
(c) Impact on Australian business interests
This consideration is not relevant in this matter and the Tribunal places no weight on this consideration.
(d) Impact on victims
Subparagraph 14.4(1) of the Direction provides:
“Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.”
There is no direct evidence of the impact of a decision not to revoke on members of the Australian community. In these circumstances the Tribunal places no weight on this consideration.
(e) Extent of impediments if removed
Paragraph 14.5 of the Direction provides:
(1) The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)The non-citizen's age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.
The Applicant is now 21 years of age and suffers from poor sight in both of his eyes. The Applicant has indicated that he requires an expensive operation in order to improve his eyesight. It is not clear whether the Applicant will be able to undergo that operation if he is removed from Australia.
The Applicant speaks Dinka, which would assist him if he is removed to South Sudan and to a lesser extent to Sudan. The Tribunal considers that there would be significant cultural barriers which would act as impediments to the Applicant establishing himself in any African country. He has been raised in Australia since the age of six. Indeed, the Applicant has never been to Sudan or South Sudan. As such, it is misleading to say that he will be “returned” to either of those countries.
As mentioned above the Respondent’s written contentions state:
“The Minister notes that, however limited, the Applicant will be entitled to any social, medical and economic support available to citizens in Sudan”.
[Emphasis added]
The first thing to say about this submission is that it is without relevance if the Applicant is not from Sudan and the Respondent had submitted that the Applicant is a citizen of South Sudan. Even if the Applicant were a citizen of Sudan and was accepted as such by the Sudanese Government and the Sudanese Government accepted his removal to Sudan, in the absence of any evidence of what, if any, social, medical or economic support is available to citizens in Sudan, the Tribunal finds that this submission is not particularly helpful.
Indeed, it is very difficult to gauge the extent of any impediments that the Applicant may face if removed from Australia to his ‘home country’, when that home country has not been identified and in circumstances where the Applicant may in fact be stateless. The Respondent put no country information whatsoever before the Tribunal.
In the event, if it ever becomes possible to remove the Applicant from Australia to a country in Africa, the Tribunal finds that the Applicant will face grave difficulty in establishing himself in Africa. The Applicant appears to have a high school education. However, there was evidence that the Applicant did not perform well at school. The Applicant has almost no work experience in Australia. The Applicant would have no family support or community network in any African country. He would be without any obvious means to support himself. There is no evidence that the Applicant would be supported by the Government in any African country as he has been in Australia. As the Applicant has claimed, and the Tribunal has accepted, there is a very real chance that the Applicant will be homeless and destitute.
The Tribunal finds that this consideration weighs against cancellation of the Applicant’s visa. The Tribunal attributes significant weight to this consideration in the Applicant’s favour.
Conclusion: Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
The Tribunal has found that the primary consideration of the protection of the Australian community weighs against revocation of visa cancellation and has attributed low weight to this consideration. Similarly, the Tribunal has found that the primary consideration of the expectations of the Australian community weighs against revocation of visa cancellation and has attributed low weight to this consideration. The Tribunal has found that the Applicant’s offences are at the lower end of the spectrum of seriousness but that the Applicant does not present a risk of any physical harm to members of the Australian community. Rather, he presents a moderate risk of depriving members of the community of their property.
The Tribunal has found that it is in the best interests of relevant children in Australia, especially his daughter, for the Applicant to remain in Australia. The Tribunal has given this consideration significant weight.
The Tribunal has found that the consideration of Australia’s international non-refoulement obligations is neutral in this case. However, the Tribunal has found that the consideration of harm or hardship to the Applicant weighs significantly in favour of revocation of the cancellation decision.
The Tribunal has found that the consideration of the strength, nature and duration of ties of the Applicant to Australia weighs in favour of revocation of the cancellation decision and attributed significant weight to this consideration. The Tribunal has also found that the Applicant’s removal from Australia will result in the Applicant’s partner being significantly adversely affected. The Tribunal has given this consideration significant weight.
Finally, the Tribunal has found that the consideration of the extent of impediments if removed weighs in favour of revocation of the cancellation decision and attributed significant weight to this consideration.
After considering all of the relevant considerations in this matter and the weight that I have attributed to them, informed by the principles in paragraph 6.3 of the Direction, I have decided that the primary considerations of the protection of the Australian community and the expectations of the Australian community are outweighed by the primary consideration of the best interests of minor children in Australia and all the other relevant considerations.
The Tribunal finds that the moderate risk that the Applicant presents of depriving members of the community of their property and the expectations of the community that the Applicant not offend in this way, are greatly outweighed by the best interests of the Applicant’s daughter and the harm or hardship to the Applicant and his family in Australia if his visa remains cancelled. The hardship to the Applicant includes the real risk of prolonged detention and the risk that the Applicant would be removed to a country where he has never been and where there is a good chance that he would be homeless and destitute, never to see any of his family again.
The Tribunal notes that the applicant currently has outstanding charges against him. Subject to the recent decision of the Full Court of the Federal Court in Minister for Home Affairs v Brown [2020] FCAFC 21 (“Brown”), if the Applicant is found guilty of those charges, it may be open for the Minister or his delegate to cancel the Applicant’s visa again. The Tribunal notes that regardless of the outcome of those charges, Brown does not prevent the Minister from exercising his personal discretion in section 501BA of the Act to set aside the Tribunal’s decision and cancel the Applicant’s visa.
The Tribunal has found that the Applicant does not pass the character test, but has found that there is another reason why the original decision should be revoked.
The Tribunal has decided to set aside the decision under review and for a decision in substitution to be made revoking the cancellation decision. The Tribunal considers that this is the preferable decision in this case.
DECISION
The decision under review is set aside and a decision in substitution is made revoking the original cancellation decision.

I certify that the preceding 201 (two hundred and one) paragraphs are a true copy of the reasons for the decision herein of Member Tigiilagi Eteuati

.......................................................................
Associate
Dated: 13 March 2020

Date of hearing:

2 and 3 March 2020

Applicant:

Self-represented

Solicitor for the Respondent:

Mr Jake Kyranis, Sparke Helmore

Attachment A
EXHIBIT REGISTER

File No 2019/8601................................................................................................................
Between CYNQ..................................................................................................... (Applicant)
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs........................................................................................................... (Respondent)

Heard on 2 and 3 March 2020
At Brisbane .................................................................................................................

Exhibit Number Description of Evidence

A1

Letter of support from the Applicant’s partner

A2

Letter of support from an African community leader from Melbourne

G1

S 501G Documents

R1

Tender bundle including extracts of summonsed material

R2

Further Tender bundle including extracts of summonsed material

[2020] AATA 545

13 March 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Standing

Court	Court Date	Offence	Court Result
Mackay Magistrates Court	30 Aug 2018	Attempted fraud - dishonestly obtains property from another (3 counts)	Convicted and sentenced to a term of imprisonment for 12 months, to be served concurrently, to be suspended for three years after serving 4 months.
Fraud - dishonestly obtains property from another (12 counts)	Convicted and sentenced to a term of imprisonment for 18 months, to be served concurrently, to be suspended for three years after serving 4 months.
Taking a flight using false air passenger ticket	Convicted and fined $1000.
ACT Magistrates Court	25 Jan 2018	Obtain property by deception	Convicted and sentenced to imprisonment for 6 months suspended after serving 4 months.
Melbourne Magistrates Court	20 Oct 2017	Theft Dishonestly undertake in retention stolen goods	Convicted and adjourned to 21 October 2019 - later discharged. To pay $1000 to the court fund
Dowling Centre Local Court	21 Jul 2017	Goods in personal custody suspected of being stolen	Offence proven warrant to issue Fined $440 on 16 June 2019
Participate criminal group contribute to criminal activity Dishonestly obtain financial advantage etc by deception	Offence proven warrant to issue
Joondalup Magistrates Court	12 Apr 2017	Receiving	Fined $500
Give false personal details to police; criminal investigation	Fined $250
Perth Magistrates Court	6 Mar 2017	Give false personal details to police; criminal investigation	Fined $200
Perth Magistrates Court	1 Mar 2017	Give false personal details to police; criminal investigation	SPENT Fined $30
Perth Children’s Court	14 Feb 2017	No authority to drive (never held)	Fined $100
Hobart CPS	23 Sep 2016	Drive whilst not the holder of a driver license.	Convicted and fined $150

Date of hearing:	2 and 3 March 2020
Applicant:	Self-represented
Solicitor for the Respondent:	Mr Jake Kyranis, Sparke Helmore

Exhibit Number	Description of Evidence
A1	Letter of support from the Applicant’s partner
A2	Letter of support from an African community leader from Melbourne
G1	S 501G Documents
R1	Tender bundle including extracts of summonsed material
R2	Further Tender bundle including extracts of summonsed material