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

FLKT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3306 (28 August 2020)
Division:GENERAL DIVISION
File Number(s): 2018/4512
Re:FLKT
APPLICANT

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

DECISION
Tribunal:Deputy President Britten-Jones
Date: 28 August 2020
Place:Adelaide

The Tribunal affirms the decision under review.
.........[Sgnd]......................................
Deputy President Britten-Jones
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – serious offending against women - whether discretion to revoke mandatory cancellation should be exercised – primary considerations – risk of reoffending - other considerations – non-refoulement obligations – risk of harm if returned – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Ali v Minister for Home Affairs [2020] FCAFC 109
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gasper v Minister for Immigration and Border Protection [2016] FCA 1166
GBV18 v Minister for Home Affairs [2020] FCAFC 17
Minister for Home Affairs v Omar [2019] FCAFC 188
SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIAL
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018
REASONS FOR DECISION
Deputy President Britten-Jones
INTRODUCTION

This hearing arises from orders made by the Full Court of the Federal Court on 25 February 2020 in GBV18 v Minister for Home Affairs [2020] FCAFC 17 which set aside and remitted the decision of the Tribunal made on 31 October 2018 not to revoke a mandatory cancellation of the applicant’s visa under s 501(3A) of the Migration Act 1958 (the Act).
THE DECISION TO CANCEL THE VISA
On 28 November 2016, the applicant’s Subclass 202 (Global Special Humanitarian) visa (the visa) was mandatorily cancelled (the cancellation decision) by a delegate of the Minister under s 501(3A) of the Act on character grounds due to his substantial criminal record and because he was serving a sentence of imprisonment.
On 7 December 2016, the applicant made representations seeking revocation of the cancellation decision. These representations, together with more recent representations from the applicant, are considered further below.
The applicant does not pass the character test prescribed under s 501(6)(a) of the Act as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has ‘a substantial criminal record’ as defined under s 501(7) of the Act. The applicant concedes the same.
The only issue for the Tribunal to determine is whether, having regard to Ministerial Direction No. 79 (Direction 79), there is another reason why the cancellation decision should be revoked. Section 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision[1] and requires the Tribunal to engage in an active intellectual process with any significant and clearly expressed relevant representations made in support of a revocation request.[2] If the Tribunal is satisfied that the cancellation decision should be revoked following that evaluative exercise, the Tribunal must decide to revoke the decision.
[1] Gasper v Minister for Immigration and Border Protection [2016] FCA 1166 at [38].
[2] Minister for Home Affairs v Omar [2019] FCAFC 188 at [34] – [37]; GBV18 v Minister for Home Affairs [2020] FCAFC 17 at [31] – [32].
I note that following the cancellation of his visa, the applicant made an application for a protection visa which was refused. The applicant has sought a review of that application by the Tribunal, but no decision has been provided at this point in time.
THE OFFENDING
The National Police Certificate for the applicant records numerous and regular offending from 2009 up to 2016. There were more than 50 different criminal offences including violence against women and police officers, robberies and numerous breaches of bail conditions. I will not list all the offending but the more serious are as follows:
(a)In October 2010, the applicant committed a robbery and an assault at the Footscray railway station car park. He was convicted in the Sunshine Magistrate’s Court in March 2011 and sentenced to an aggregate term of 12 months imprisonment which was wholly suspended.
(b)On 27 March 2011, the applicant assaulted a security guard at Hungry Jacks and on 6 May 2011, he committed an assault occasioning bodily harm against another security guard, both whilst in the company of others. In December 2011 the applicant was convicted for these and other offences in the Ipswich Magistrates Court. He was sentenced to terms of imprisonment for six months, one month and three months to be served concurrently.
(c)On 3 August 2012, the applicant punched and kicked persons in Footscray for which he was convicted in the Melbourne Magistrates Court on 3 October 2012. He was ordered to serve seven and eight months imprisonment for the two counts of affray as well as three months from a suspended sentence.
(d)On 1 March 2013, the applicant kicked his de facto partner in the leg and was taken to the Fitzroy police station and issued with a family violence safety notice. The applicant then immediately returned to the home of his partner and entered the premises and punched her in the head. He was sentenced to one month imprisonment on 24 April 2013.
(e)On 28 November 2014, the applicant hit a woman with a bottle causing her to bleed from the head.
(f)On 1 May 2015, the applicant assaulted his partner whilst drunk by kicking her and saying ‘I’ll kill the baby in your stomach’. The applicant’s four-year-old son was present who the applicant then held up as a shield when the police arrived. He resisted arrest. On 21 September 2015, he was convicted of two counts of unlawful assault, three counts of assault emergency worker on duty, two counts of resist emergency worker on duty, contravene family violence intervention order – intend harm/fear and was ordered to serve four months imprisonment and a community corrections order.
(g)On 7 August 2015, the applicant repeatedly punched the female cousin of his partner after attending at her house whilst drunk and in breach of the family violence intervention order.
(h)On 1 February 2016, the applicant punched a bus driver in the face after a verbal altercation. The applicant was not drunk on this occasion. He was convicted for this and other offences in the Sunshine Magistrate’s Court and sentenced to an effective term of 15 months imprisonment on 22 December 2016.
(i)On 29 July 2016, the applicant argued with his partner who then locked herself in the laundry whilst the applicant forced the door open causing damage and then hit her in the face.
(j)On 8 August 2016, the applicant tried to break into the house of his partner and then threw a brick through the living room window. On 5 October 2016, he was convicted in the Heidelberg Magistrate’s Court for unlawful assault, assault emergency worker on duty, resist emergency worker on duty, recklessly cause injury, contravene family violence intervention order – intend harm/fear and breach bail for which he received a sentence of five months imprisonment.
LEGISLATIVE FRAMEWORK
Under s 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test referred to in (3A) is outlined in s 501(6) of the Act. Relevantly, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subsection (7)).
For the purposes of subsection (6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[3]
[3] Migration Act 1958 (Cth) s 501(7)(c).
Where a visa has been cancelled under s 501(3A), the Minister has a power to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked.[4] The discretion to revoke the cancellation on the grounds that ‘the Minister is satisfied that there is another reason why the original decision should be revoked’ is a broad one.
[4] Ibid s 501CA(4).
Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.
IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?
When considering whether to revoke the delegate’s decision, the Tribunal must have regard to Direction 79. The objective of Direction 79 is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.[5]
[5] Direction 79 at 6.1.
The guiding principles in Direction 79 that the Tribunal must apply in determining whether or not to revoke a visa cancellation include:
·Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to remain in Australia bearing in mind that being allowed to remain in Australia is a privilege conferred on non-citizens in the expectation that they are, and have been, law abiding.
·The Australian community expects that the Australian Government can and should cancel a non-citizen’s visa if they commit serious crimes in Australia or elsewhere.
·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 have to forfeit the privilege of staying in Australia.
·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 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.
·The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of 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.
Keeping those guiding principles in mind, I turn my mind to the primary considerations and other considerations set out in Part C of Direction 79:
·Primary considerations:
oProtection of the Australian community
oThe best interests of minor children in Australia
oExpectations of the Australian community
·Other considerations include (but are not limited to):
oInternational non-refoulement obligations
oStrength, nature and duration of ties
oImpact on Australian business interests
oImpact on victims
oExtent of impediments if removed
Protection of the Australian community – 13.1 of Direction 79
When considering the protection of the Australian community, I have regard to the principle that the government is committed to protecting the Australian community from harm as a result of criminal activity. I give consideration to:
·the nature and seriousness of the non-citizen’s conduct to date; and
·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 non-citizen’s conduct – 13.1.1 of Direction 79
Factors that I must have regard to under paragraph 13.1.1 include:
·the principle that violent and/or sexual crimes are viewed very seriously;
·the principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed; and
·the sentence imposed by the courts for a crime or crimes (subject to the preceding dot point);
·the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness.
The crimes committed by the applicant are very serious. The applicant accepts that he has a lengthy criminal history dating back to 18 December 2008 when he was 16 years old and made up of multiple offences involving violence, domestic violence and resisting public officers in exercising their duties.[6] There is an alarming frequency of offending over a 7 year period and there is a trend of increasing seriousness. I note the cumulative effect of the repeated offending. Much, but not all, of the offending was committed at random against unknown persons whilst the applicant was intoxicated and often with others. The unsuspecting victims had no chance when they were set upon by a group. This offending is concerning, but the domestic violence against the mother of his children is more concerning.
[6] Applicant’s Statement of Facts, Issues and Contention dated 1 June 2020 at [16].
The first episode of domestic violence happened on 1 March 2013. The applicant was living with his partner and their son. Under cross examination he said he was drunk and could not remember the incident, but he accepted it happened. The first part of the offending involved the applicant physically assaulting his partner by kicking her in the leg. The police were called and the applicant was taken to the Fitzroy police station and issued with a family violence safety notice. It was expressly explained to him that he was not to approach his partner or go to her house. Despite these express conditions, the applicant returned to the house just two hours later in contravention of the family violence safety notice and then, according to the police report, punched his partner twice in the head causing her to seek refuge with a neighbour. He said under cross examination that he kicked in the door but denied punching her. It concerns me that the applicant first said he was too drunk to remember but he then could remember aspects of the incident which were favourable to him. In any event, he showed complete disregard for the family violence safety notice and caused the police to be called again. The applicant was remanded in custody and convicted of contravening the family violence safety notice on 24 April 2013.
The second episode of domestic violence was on 1 May 2015 and once again the applicant said he did not remember the incident because he was affected by drugs and alcohol. However, he accepts what the police said in the incident report and he said that he cried in the police interview room. The applicant was living with his pregnant partner and their 4-year-old son. He was drunk and brought three friends to the house at 4.30am. When his partner protested, he hit her numerous times to the head and then kicked her in the back while saying ‘I’ll kill the baby in your stomach’. She tried to leave with the four-year-old but he grabbed the child. She fled and called the police. When the police arrived he became aggressive and held the child in front of him like a shield so as to prevent the police from taking hold of him. He refused the police entry and there was effectively a hostage situation for 45 minutes whilst they negotiated with him. Eventually the police arrested him, but he resisted and kicked a senior constable in the chest.
The third episode of domestic violence was on 7 August 2015. In breach of an intervention order, the applicant showed up drunk at his (now ex) partner’s house and argued with her cousin who he then punched repeatedly in the face and the body causing her to be hospitalised.
The fourth episode of domestic violence was on 29 July 2016 when the applicant was visiting his two children at his former partner’s house. They had been drinking when she resisted his attempts to kiss her. She became frightened and locked herself in the laundry, but he forced the door open and then struck her in the face causing no injury. The police were called. An intervention order was issued and served on the applicant on 4 August 2016.
The fifth episode of domestic violence took place on 8 August 2016 only four days after being served with the intervention order preventing him from going near his former partner or her house. He attempted to break into her premises, but she barricaded herself in her bedroom with her two children and called the police. He kicked and broke the front security door and then threw a brick through the window of the living room. When the police arrived, his former partner was crying uncontrollably and the two children were found huddled together in a foetal position in a corner of the bedroom.
These acts of violence would have had a devastating impact upon his partner and their two children. They were frequent and numerous. The applicant continued to attack his partner despite intervention orders and prison sentences. He showed total disregard for his children who witnessed his abuse and on one occasion became part of the abuse. No woman or child should have to endure what the applicant put them through. I take into account the principle that violent crimes against women and involving children are viewed very seriously. I take into account the sentences of imprisonment which reflect the seriousness of the offending.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 13.1.2 of Direction 79
In considering whether the applicant represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, I have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. I also have regard to:
·the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct; and
·the likelihood of the applicant engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the applicant reoffending.
Nature of harm if further criminal conduct
If the applicant were to engage in further similar offending, then serious and unacceptable harm would result in particular to the victims of the domestic violence. The applicant has shown total disregard for authority by engaging in acts of violence against police officers and security guards. I also take into account that acts of violence against transport workers such as the bus driver should be treated seriously.
I have reached the view that the nature of the offending and the harm that would be caused if it were to be repeated is so serious that any risk of similar conduct in the future is unacceptable.[7]
[7] Direction 79 at 6.3(4).
Likelihood of further criminal or other serious conduct
The applicant submits that the risk of further criminal offending is low because he has good prospects of successfully treating his alcohol abuse and underlying trauma issues, which were causative of his offending in the past.

The applicant has shown in the past that despite stated good intentions he does not learn from his mistakes and he continues to re-offend. The applicant was treated leniently by the sentencing magistrate on 10 March 2011 when his 12-month term of imprisonment was wholly suspended. Less than one month later he assaulted the security guard at Hungry Jacks on 27 March 2011, and then there was a public nuisance and assault or obstruct police officer in the following month. He went on to assault another security guard at a railway station on 6 May 2011. When being sentenced for these and other offences, the magistrate noted that the applicant was on bail when he committed most of these offences and said on 6 December 2011:
As noted, he previously was drinking excessively. He’s no longer drinking. He hasn’t consumed any alcohol since the offences in July and has no – he’s also stopped associating with the group of people that he was associating in the past and mainly just focused on being a good father and partner to his son and – and de facto partner.
Less than one month later on 20 December 2011, the applicant committed another public nuisance and assaulted a police officer. He continued to drink, and the pattern of re-offending continued up to 2016 in which period he committed the numerous acts of domestic violence and contravention of family violence intervention orders.
The applicant was given a very clear warning about the consequences of his continuing to re-offend by way of a letter from the Department of Immigration and Citizenship dated 21 January 2013. The letter informed the applicant that a decision had been made to not cancel his visa on character grounds on this occasion but warned that visa cancellation may be reconsidered if further offences were committed. This did nothing to stem the tide of offending.
A forensic psychiatrist, Dr Zimmerman, has prepared a very comprehensive risk of recidivism and psychiatric report dated 23 June 2020. In her opinion, the applicant suffers from post-traumatic stress disorder, which is in partial remission, and has an alcohol dependence disorder which is currently in remission. With respect to recidivism, it is her opinion that the applicant poses a low to medium risk of violence in the future. She refers to the counselling for trauma and alcohol abuse that he has received whilst in prison and in detention but says that to reduce any risk of re-offending if released, the applicant would need to remain engaged in trauma counselling and with a drug and alcohol specialist counsellor.
I take into account that the applicant has expressed remorse for his offending and that he has undertaken a number of rehabilitation, educational and vocational courses and programs whilst in the community and in prison and detention and that he is receiving ongoing assistance from specialists to deal with his alcohol abuse and trauma issues. Whilst in prison he engaged positively and volunteered with the African Visitation and Mentoring Program. Since about 2013, the applicant has engaged with the Youth Support and Advocacy Service (YSAS) who have written a letter of support dated 28 March 2017. They refer to his regular and worsening experimentation with alcohol from age 13 but note that prior to being remanded in custody in 2016 he had re-engaged with them and expressed a desire to engage in mental health support.
I am concerned that despite attending rehabilitation programs and engaging with alcohol and drug counsellors in 2015 and early 2016, the applicant relapsed and committed further offences under the influence of alcohol. He has had further treatment for his alcohol dependency whilst in prison and detention, but I am not satisfied that he is fully recovered from his alcohol dependency, which Dr Zimmerman says is currently in remission. There remains a real risk that if released into the community he would relapse and therefore be more likely to reoffend.
The applicant’s remorse and statements that he will not reoffend must be seen in the context that he engaged in constant serious criminal activities for his adult life whilst in the community. His good intentions have not yet been tested in the open community. Even whilst in detention he has shown signs that he is not adequately rehabilitated. For example, there are recorded incidents of violence and poor behaviour in detention. He has been verbally abusive to the detention employees and has been violent towards other detainees. The last record of an incident is 5 May 2019, so I take into account that his behaviour in detention has improved over the last 12 months.
I take into account that the applicant has written a book detailing his life experiences, which is an impressive achievement and reflects a level of maturity and stability. However, there are passages in the book which suggest a lack of insight into his domestic violence offending. For example, when describing one of the incidents of domestic violence, he referred to his former partner as ‘playing the victim’. He blamed her for calling him when he was drunk and said that ‘she would be loud and wake up my boys’ when the evidence is clear that he had little concern for being drunk and committing acts of violence in front of his children. Dr Zimmerman also agreed that he downplayed some of the incidents of domestic violence when he described them to her. This lack of insight indicates that it is more likely that he will reoffend.
Risk to the Australian community
In considering the risk to the Australian community I must have regard to, cumulatively, the nature of the harm should the applicant reoffend and the likelihood of the applicant engaging in criminal or other serious conduct. In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J in Tanielu v Minister for Immigration and Border Protection.[8] Her Honour states that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.
[8] (2014) 225 FCR 424.
Conclusion as to protection of the Australian community
The government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens.[9] The nature of the repeated offending, the warnings that have gone unheeded, the risk of a relapse of his alcohol dependency, the ongoing poor behaviour whilst in detention and the lack of insight shown with respect to his offending indicate that there is a real and unacceptable risk that the applicant will re-offend in the future. I would describe the risk of re-offending as medium or moderate but even a low to medium risk, as opined by Dr Zimmerman, is unacceptable given the serious nature of the harm that flows from the domestic and other violence committed by the applicant.
[9] Direction 79 at 13.1(1).
I conclude that the primary consideration of protection of the Australian community weighs strongly in favour of non-revocation of the cancellation decision.
Best interests of minor children – 13.2 of Direction 79
In making a determination about the revocation of a visa cancellation, I must take into consideration the best interests of any children in Australia that are under the age of 18 years. Each child’s interests are to be considered individually to the extent that their interests may differ.
The following factors that I must consider and are relevant to this application include:
·the nature and duration of the relationship between the child and the applicant. 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;
·the extent to which the applicant is likely to play a positive parental role in the future;
·the impact of the applicant’s prior conduct and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
·the likely effect that any separation from the applicant would have on a child, taking into account ability to maintain contact in other ways;
·whether there are other persons who already fulfil a parental role in relation to the child; and
·any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).
The applicant has two sons with his former partner and has nine nieces and nephews who are under the age of 18 years. His first son was born in 2011 when the applicant was 19 years old. The applicant and his partner had a tumultuous relationship and there were numerous periods during which they were apart and family violence intervention orders applied. They had a second child together in August of 2015. The applicant was arrested and remanded in custody in August 2016 by which time their relationship had ended.
The applicant’s two sons are nine and four years old. He says that he has a strong bond with the older son. I accept that he speaks with his children on the phone whilst in detention and that he wants to be there for his sons, particularly because he grew up without a father.
The applicant has been absent for more than half of the younger son’s life having been taken into custody when he was only one year old. He has also been absent for much of the older son’s life. He has not contributed financially towards his children. I also take into account that he has subjected his children to the horror of witnessing domestic violence and seeing him drunk and abusive; and that there is a risk of further similar behaviour in the future.
I consider that children will always benefit from the presence of their father so I find that it is in the best interest of the applicant’s children that the cancellation decision is revoked, but I give this less weight given the applicant’s limited meaningful contact and the poor behaviour in front of his children.
With respect to the nieces and nephews, there are five living with his eldest sister in Queensland and four living with his other sister in Melbourne. The applicant says he wants to contribute as an uncle to them. He speaks on the phone to them on the weekends. When in the community he used to take them out to the park or to the movies. While in Queensland, he lived with his eldest sister and her children and while in Melbourne, he lived with his other sister and her children. There are letters of support from some of these nieces and nephews and I accept that he is a significant male role model for them. I accept the evidence from his sisters about his relationship with their children, but the relationship is non-parental and has been very limited due to his periods of absence from the community and because he moved from Queensland to Melbourne. It is in the best interest of his nieces and nephews that the cancellation decision is revoked but I give this minimal weight because of the limited meaningful contact and because there are others fulfilling a parental role for them.
Expectations of the Australian community – 13.3 of Direction 79
In YNQY v Minister for Immigration and Border Protection,[10] Mortimer J held that the expectations of the Australian community was inextricably linked to the other primary consideration about the protection of the Australian community, and that the expectations referred to in Direction 79 were those espoused in clause 13.3(1) rather than any objective expectations put forward by an applicant. This position has been affirmed by the Full Court of the Federal Court in FYBRv Minister for Home Affairs.[11]
[10] [2017] FCA 1466.
[11] [2019] FCAFC 185.
In exercising my discretion, I am also informed by the principle at paragraph 6.3(1) of Direction 79 that:
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.
The Australian community expects non-citizens to obey Australian laws while in Australia. This expectation has not been met with respect to the applicant in the past. The applicant has breached the trust that the Australian community placed in him.
The applicant committed repeated acts of domestic violence striking fear into the hearts of his partner and his children and in those circumstances he should expect to forfeit the privilege of staying in Australia.[12] He has shown a complete disregard for authority by regularly breaching court imposed orders and by assaulting those who provide a public service.
[12] Direction 79 at 6.3(3).
Taking into account the serious nature of the offending and risk of reoffending, I find that the expectations of the Australian community weigh strongly in favour of non-revocation of the cancellation decision.
Other considerations
In deciding whether to revoke the cancellation of the applicant’s visa, I must take into account the other considerations listed in Direction No. 79, but these are not exhaustive.[13]
[13] SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395 [86].
As found by the Full Court in GBV18, the applicant raised the risk of being physically harmed if returned to South Sudan and in the context of the ongoing civil war as ‘another reason’ for revoking the visa cancellation. He did so independently of his claims concerning Australia non-refoulement obligations.[14] Further representations with respect to risk of harm were made at this hearing in the applicant’s statement of facts, issues and contentions dated 1 June 2020 and the applicant’s reply dated 29 June 2020.
I will consider separately the risk of harm if returned to South Sudan, but I note that the risks of harm that the applicant will face if removed are also relevant to international non-refoulement obligations and the extent of impediments if removed.
[14] GBV18 v Minister for Home Affairs [2020] FCAFC 17 at [33].
Risk of Harm
The applicant has made numerous representations concerning risk of harm in South Sudan:
(a)In his request dated 7 December 2016 seeking revocation of the mandatory cancellation decision the applicant wrote:
South Sudan is still in war and a huge violation of human rights abuse, eg torturing, raping, child suicides and killing of innocence people.
…
I am scare … of human rights abuses, like rape, kill, child soldiers and [illegible] assault.
It would be returning me to a place that is extremely unsafe.
(b)By a letter dated 17 January 2017, the applicant made various submissions in support of his request for revocation including a claim that, with South Sudan being a third world developing country, he believed that he would become destitute if he returned there and that there was ‘a real possibility of being targeted by rebel soldiers’.
(c)By a letter dated 7 April 2017, Victoria Legal Aid (VLA) (who were then acting for the applicant) made submissions to the Department in support of the revocation request. The submissions included the following material …
… We note that since 2013 South Sudan has been experiencing civil war with widespread human rights violations accompanying that conflict.
In the recent UN Human Rights Council ‘Report of the Commission on Human Rights in South Sudan’ covering the period July 2016 to February 2017 the following concerns were noted:
• The conduct of all parties to the conflict suggested deliberate targeting of civilian populations based on their ethnic identity (ethnic cleansing). Including killings, abductions, unlawful detentions or deprivation of liberty, rape and sexual violence, and the burning of villages and looting.
• The displacement of an estimated 1.5 million South Sudanese refugees to neighbouring counties, and a further 2 million internally displaced people within South Sudan.
• Unprecedented levels of hunger, caused by the combination of disease, protracted instability, escalation of conflict and widespread destruction. Food insecurity was expected to reach massive proportions in 2017. It was expected that 5.5 million people (47% of the population) would become severely food insecure between February and April 2017.
• A cholera outbreak for the third consecutive year.
• Severe restrictions on the enjoyment of fundamental freedoms and civil liberties including reports of people who had been arbitrarily arrested, detained, tortured or subjected to inhuman or degrading treatment after having expressed criticism of the Government.
(d)Further, in the applicant’s statement of facts, issues and contentions dated 1 June 2020, he submitted:
[47] The applicant fears that, if he is returned to South Sudan, he will suffer serious harm in the form of kidnapping, torture and death, from South Sudanese authorities, rival ethnic groups, armed groups and the general population and vigilantes for the following essential and significant reasons, either cumulatively or separately:
·his actual and imputed political opinion on account of his Dinka ethnicity; his father’s involvement in the war; his family fleeing from Sudan to Kenya and then Australia,
·his membership of particular social groups namely men at risk of forced recruitment by armed groups; persons perceived to be wealthy in South Sudan; persons perceived to be foreign; and a returnee from Australia
·his race on account of his Dinka ethnicity.
[48] The applicant is at a more than remote risk of suffering the following instances of significant harm as a necessary and foreseeable consequence of him being returned to South Sudan:
·arbitrary deprivation of life by South Sudanese authorities, rival ethnic groups, armed groups and the general population and vigilantes; and/or
·cruel or inhuman treatment or punishment and degrading treatment or punishment by South Sudanese authorities, rival ethnic groups, armed groups and the general population and vigilantes; and/or
·harm of the kind whereby he would be compelled to act discreetly and modify his profile to hide his ethnicity and status as a returnee/outsider who has lived in a Western country with criminal convictions as to avoid significant harm.
[49] For the reasons below, we further submit that there is a more than remote risk of persecution now or in the reasonably foreseeable future, and in the alternative, significant harm, for the applicant in all parts of South Sudan. In any case, any proposed relocation would not be reasonable modification of behaviour.
[50] we submit the country information is highly consistent with the applicant’s claims and indicates that the risk of him suffering the above types of harm now or in the reasonably foreseeable future, or as a necessary and foreseeable consequence of his removal to that country, could not be described as being remote, far-fetched or fanciful. On this basis it is submitted that there is a real chance now or in the reasonably foreseeable future, and in the alternative a real risk is a necessary and foreseeable consequence of his removal to South Sudan, that he would suffer this harm.
(e)Further, in the applicant’s reply dated 29 June 2020, he submitted:
[28] The applicant has a well-founded fear of persecution that stems from his Dinka ethnicity, status as a Western returnee, and specific family background: namely, his association with his father, who has the name [omitted]. New information has come to light that was not included in the applicant’s original protection visa application or at his merits review of that rejected application. As of the filing of these submissions, the decision in that merits review has yet to be handed down.
[29] New information adds weight to the applicant’s position that he is at real risk of serious harm if returned to South Sudan. In general, the UN observes that violence in South Sudan has gone beyond the intercommunal and has now evolved into “seasonal and perennial inter- and intracommunal tensions” in the absence of strong government institutions following the ceasefire agreement. The applicant’s Dinka ethnicity means little when, firstly, he has no cultural framework with which to hold himself out as Dinka or as any other form of identity that will protect him from kidnapping, torture and death, arbitrary violence, or interpersonal crime, and secondly, in a time when Dinka are more likely to compete with Dinka for power in nascent government institutions.
(f)In his written statement dated 18 June 2020, the applicant said:
[24] I don’t know South Sudan at all. I look it up on the internet and there is a war going on there. People are moving out to refugee camps and so is not safe for anyone there. People get killed there every day. There is no safe place anywhere in that country for anyone, especially not for me who is a foreigner.
[25] … I look up South Sudan on the internet and I know it is a very dangerous place. From what I read and hear about South Sudan I know that I will not be able to survive there.
[26] The government in South Sudan won’t even protect their own citizens. If they don’t protect their own people why would they protect me who is not like them and pretty much a foreigner to them. I am not a person that they will protect and I know that they will take me as a person that can just be killed and no one would care.
(g)The applicant gave oral evidence that he has a similar name to the military figure in South Sudan and so that persons in South Sudan might think that he is his son. In closing submissions, the applicant’s counsel accepted that the military figure might not categorically be the applicant’s actual father but the risk remained that the applicant may be imputed to have a familial association with him.

The Department of Foreign Affairs and Trade (DFAT) Country Information Report for South Sudan (last updated on 5 October 2016) refers to a significant correlation between ethnicity and an individual’s risk of discrimination and violence and that tensions between the Dinka and Nuer ethnic groups have been historically common in South Sudan with relations between them being punctuated by informal intertribal conflict. The report concludes:
Overall, DFAT assesses that Dinkas living in conflict areas face a high risk of societal discrimination and violence, given the significant ethnic dimensions of the current conflict as well as the geographic proximity to the conflict. In Juba, Dinkas face a low risk of being targeted on the basis of their ethnicity because the Dinka dominated government currently has almost unencumbered control over Juba.
DFAT has produced information in respect of South Sudan under the ‘Smart Traveller’ website. This refers to fighting and instability and terrorist attacks, kidnapping, moving, shootings, home invasions, armed robbery, carjacking and sexual assault in South Sudan.
A report of the Secretary-General of the UN Security Council dated 15 June 2020 reported with respect to the security situation in South Sudan that:
[17] While the permanent ceasefire largely continued to hold, the security situation deteriorated as disagreement over gubernatorial positions and the ensuing lack of authority at the State level compound tensions and exacerbated communal violence and crime.
[24] There was a sharp increase in intercommunal violence, including owing to the leadership vacuum at the State and substate levels, where government institutions remained dissolved, which allowed seasonal and perennial inter- and intracommunal tensions to continue unchecked.
[25] In Jonglei, violence spiked owing to attacks by Lou Nuer and Dinka Bor on Murle communities in late February, in which hundreds of people were killed and injured, numerous women and children abducted, cattle looted and thousands of civilians displaced.
A report of 23 June 2020 from the UN News referred to ‘an uptick in violence that risks unravelling a fragile ceasefire.’[15] On 12 August 2020, it was reported that at least 118 people were killed in clashes between security forces and civilians in South Sudan.[16]
[15] Exhibit ‘Remittal 5’ Applicant’s tender bundle 2.
[16] ‘More than 100 killed in South Sudan Clashes’ The New Daily (article,12/8/20) >
The above-mentioned reports are generally supportive of the applicant’s representations as to fear of harm, and I find that the security situation in South Sudan remains precarious and that it is clearly a very dangerous place.
I accept the applicant’s representations that he would face a real and substantial risk of harm if returned to South Sudan. It is apparent from the UN Human Rights Council’s Report of the Commission on Human Rights in South Sudan dated 13 March 2018 that as a civilian of Dinka ethnicity he would be at risk of being targeted based on his ethnic identity. The risk arises in particular because of his Dinka ethnicity, because he fled the country and because he is a returnee from a western country so may be perceived to be wealthy. There is also the risk of being subjected to violence arising from the ongoing civil war and the deteriorating security situation.
I accept that this risk of harm may be marginally elevated because of an association, whether actual or perceived, with his father or a person with a similar name but I give that very little weight and consider it to be immaterial in the context of the real and substantial risk of harm found above.
I note that the respondent accepts that the applicant faces a generally elevated risk of harm if returned to South Sudan.[17] Further, in the reasons for decision from the delegate of the Minister for Home Affairs dated 7 August 2018, the delegate said that the applicant:
would face hardship arising from a protracted civil war, ethnic cleansing by all parties in the civil war against civilians in addition to the displacement of refugees to other countries, food insecurity and hunger, a cholera outbreak and the curbing of fundamental freedoms and civil liberties, were he to return to South Sudan.
[17] Respondent’s Outline of Submissions dated 6 July 2020 at [52].
I accept the elements referred to above by the delegate, but I consider that they amount to more than ‘hardship’ and would more properly be described as giving rise to a risk to the applicant of physical harm or violence. These risks of harm are more acute and likely to cause even greater harm because of the mental health issues suffered by the applicant; I will return to that issue when dealing with impediments upon return.
I note that the respondent accepts that the applicant may be subject to certain risks but only if he were to travel outside of Juba.[18] In light of the more recent reports from this year, it is apparent that the security situation has deteriorated since the 2016 country information report, and violence is more widespread due to the lack of authority at state level. The increase in intercommunal violence puts the applicant at risk of harm both inside and outside of Juba.
[18] Respondent’s Statement of Facts Issues and Contentions dated 15 June 2020.
This risk of harm is a factor that weighs heavily in favour of revocation.
International non-refoulement obligations
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.
In Ali v Minister for Home Affairs [2020] FCAFC 109 the Full Court said with respect to Australia’s non-refoulement obligations:
[23] Although the concept of non-refoulement is not defined in the Act, s 5 contains a definition of “non-refoulement obligations” in the following terms:
non-refoulement obligations includes, but is not limited to:
(a) non-refoulement obligations that may arise because Australia is a party to:
i.the Refugees Convention; or
ii.the Covenant [being the International Covenant on Civil and Political Rights]; or
iii.the Convention Against Torture; and
(b)any obligations accorded by customary international law that are of a similar kind to those mentioned in paragraph (a).
[24] The concept of “non-refoulement” and its relationship to the Act was recently considered by the Full Court in Ibrahim v Minister for Home Affairs (2019) 270 FCR 12 (Ibrahim) at [100]–[113]. In summary and relevantly for the purposes of this matter:
(a)The term “non-refoulement” is derived from Art 33(1) of the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 art 33(1) (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (‘the Convention’), which provides:
Article 33
PROHIBITION OF EXPULSION OR RETURN (“REFOULEMENT”)
1.No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
(b) In Plaintiff M70/2011 v Minister for Immigration and Citizenship (the Malaysian Declaration Case) (2011) 244 CLR 144 , Gummow, Hayne, Crennan and Bell JJ identified at [94] that Australia would contravene its non-refoulement obligations under Art 33(1), and thereby its international obligations, if it was to expel or return “in any manner whatsoever” a person with a well-founded fear of persecution to a country where their life or freedom would be threatened for one of the identified Convention reasons. The Court also identified that Australia’s international obligations would be breached if a person was returned without Australia first having ascertained whether the person is a refugee.
(c) In the Act, the concept of “non-refoulement obligations” is not limited to those obligations which arise under the Convention and includes obligations arising under other international treaties and international law. It is not confined to protection obligations which arise under s 36(2) of the Act (at [103]).
(d) Although the term “non-refoulement obligations” has been used interchangeably with the term “protection obligations” as used in s 36(2)(a) of the Act, the two do not truly compare as Australia’s non-refoulement obligations under international law are wider and more comprehensive than those which are given domestic force by s 36(2) (at [103] to [104]).
(e) The internal relocation principle applies in the consideration of the non-refoulement obligations, but it is not relevant to the determination of whether a protection visa should be granted under s 36(2)(a) (at [113]).
[25] In general terms, the Full Court in Ibrahim held that Australia’s international non-refoulement obligations extend to obligations under treaties other than the Refugee Convention and that the scope of protection inherent in the s 36(2)(a) criteria is narrower than that afforded by the Refugee Convention itself.
The question before the Tribunal in considering any non-refoulement claims is a state of satisfaction as to whether there was ‘another reason’ why the original decision should be revoked.[19] I am required to properly consider the claims being made and the factual material being relied upon by the applicant.[20]
[19] Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [28].
[20] Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513 at [27].
The applicant contends that he would face harm if returned to South Sudan and that the Tribunal needs to consider Australia’s international non-refoulement obligations. I accept this contention. The applicant’s life would be threatened as a result of his Dinka ethnicity and his status as a returnee from a western country in the context of the deteriorating security situation and ongoing civil war. The UN Security Council report dated 15 June 2020 refers to that deterioration in security and a sharp increase in intercommunal violence owing to a leadership vacuum at the state and substate levels. I will not repeat the country information and the matters considered separately under risk of harm but they are relevant to non-refoulement and I find that the risk of harm found above gives rise to a non-refoulement obligation such that Australia would be in breach of that obligation if the applicant were to be returned to South Sudan.
I now have regard to the legal consequences of a decision to not revoke the cancellation of the applicant’s visa bearing in mind my determination that the applicant is a person in respect of whom non-refoulement obligations are owed. Specifically, the applicant will be liable to be removed from Australia as soon as reasonably practicable,[21] noting that he will not be removed until there is a decision from the Tribunal with respect to his application for a protection visa and until he has exhausted his appeal rights therefrom. Given the obligation to remove as soon as ‘reasonably practicable’, subject to the appeal to the Tribunal, his detention would not be indefinite.[22]
[21] Migration Act1958 s 198.
[22] See DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576 at [26]-[30].
Given that the legal consequence is that the applicant would be returned to South Sudan, subject to any successful appeal with respect to his protection visa application, it is my assessment for the reasons set out above that there is a very real risk that the applicant will suffer significant harm if the cancellation decision is not revoked. This factor weighs heavily in favour of revoking the cancellation.
The consequence of non-compliance with Australia’s treaty obligations does not only impact the applicant but it also impacts negatively upon Australia’s reputation and standing in the global community.[23] I consider that this adds further weight in favour of revoking the cancellation.
[23] See Ali v Minister for Home Affairs [2020] FCAFC 109 at [91].
I accept that regardless of whether the applicant’s claims are such as to engage non-refoulement obligations, the applicant would face significant hardship including violence and a lack of support in the event he were to return to South Sudan.
Strength, nature and duration of ties
In making my decision, Direction 79 requires that I consider the following factors:
·how long the applicant has resided in Australia, including whether the applicant arrived as a young child (noting that less weight should be given where the applicant began offending soon after arriving in Australia, and more weight should be given to time the applicant has spent contributing positively to the Australian community); and
·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.
The applicant is the youngest of four siblings. He left Sudan with his eldest sister and her children when he was three years old and he arrived in Australia aged 12 years old in 2004. He lived in Toowoomba with his eldest sister and her children until he was 16 or 17 years old. He attended primary school but became anxious and frightened due to the trauma he had experienced as a child and because he was unable to read or write English. He received trauma counselling for the two years he was at primary school from a Sudanese worker. In 2009 his mother and another older sister and some nieces and nephews came to Australia as refugees. The applicant has had no relationship with his father, but he spoke to him once in 2015 at which stage he was in Sudan.
The applicant attended high school in or near Toowoomba. He played basketball and participated in community events and church. At some stage after leaving school he left Queensland and went to Victoria where he started a relationship with the mother of his two children. They had two children in 2011 and 2015. Whilst in Melbourne he spent time living with his other sister and her four children. He returned often to Queensland to visit his mother and his eldest sister and her children. His eldest sister cares for their mother who is not in good health.
He carried out some study as a pre-apprentice bricklayer but that was interrupted by his prison sentence from August 2016. The applicant has been mostly unemployed and there was no evidence that he contributed financially to the children.
The applicant’s immediate family members, including his mother and siblings and nephews and nieces, live in Australia. His eldest sister gave oral and written evidence that non-revocation ‘will affect us a lot. It will break our family apart.’ His mother and other sister have both written letters of support expressing how his removal would have an adverse impact on them.
I take into account that the applicant has now lived more than half of his life in Australia having arrived at 12 years of age. His first offence, dealt with in the Toowoomba Children’s Court, was in December 2008 which is four years after arriving. Since then there has been very little positive contribution to the Australian community. He has strong links with his extensive family with whom he lived for many years and who would be impacted negatively if the cancellation decision is not revoked.
I conclude that the strength, nature and duration of ties weighs in favour of revocation, but I give it less weight because he began offending aged 16, which was four years after arriving, and continued to offend continuously thereafter.
Impact on Australian business interests
No evidence or argument was advanced with respect to any impact on Australian business interests.
Impact on victims
Paragraph 14.4(1) of Direction 79 provides that I must consider the impact of a decision not to revoke on members of the Australian community, including victims of the applicant’s criminal behaviour, and the family members of the victim or victims where that information is available and the applicant being considered for revocation has been afforded procedural fairness.
I have not received any direct evidence with respect to the impact non-revocation would have on the victim of the applicant’s criminal behaviour and family members. In the absence of such evidence, I cannot find this other consideration weighs in favour of, or against, revocation of the cancellation decision.
Extent of impediments if removed to home country
Direction 79 requires that I consider the extent of any impediments that the applicant may face if removed from Australia to South Sudan in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
·The applicant’s age and health;
·Whether there are substantial language or cultural barriers; and
·Any social, medical and/or economic support available to them in that country.
The applicant’s following submissions as to harm go to impediments:
It is submitted that [the applicant] would suffer harm … including separation from family, compounding of refugee trauma, the inability to access social, medical and economic support, the inability to find work and survive in a country that is currently experiencing instability, famine and violence.[24]
[24] Exhibit 1 G Documents p 869, Letter dated 7 April 2017 from Victoria Legal Aid.
The recent report from the UN Security Council dated 15 June 2020 says that South Sudan continues to be gripped by a serious humanitarian crisis. Over half of the population is threated by hunger and have no access to even primary health care. The population is also vulnerable to COVID-19.
The applicant is 29 years old. Dr Zimmerman has provided a diagnosis that the applicant suffers from post-traumatic stress disorder in partial remission and an alcohol dependence disorder currently in remission. The applicant also has chronic hepatitis B which is in the immune control phase but requires regular six-monthly monitoring because about a quarter of such patients progress to active hepatitis.
Dr Zimmerman opines and I accept that in South Sudan it is most unlikely that the applicant would receive the necessary six monthly monitoring of his hepatitis which would put him at risk of developing cirrhosis and liver cancer for which there is no specialist care. I accept that removal to South Sudan is likely to cause profoundly emotional distress to the applicant, who has not lived there since he was three, and that there is a high risk of destabilising his post-traumatic stress disorder. The applicant would most likely not have access to the specialised mental health treatment services that he requires. In these circumstances his mental and physical health would likely deteriorate and his problems with alcohol dependence might return.
There would be substantial language and cultural barriers for the applicant who has limited ability to read or write Dinka properly and has never lived in South Sudan. He is completely unfamiliar with the country. He is likely to find it difficult to obtain employment or to access social, medical or economic support. He has no family or friends to turn to for support in South Sudan. He would suffer greatly as a result of being separated from his family.
I accept the applicant’s submissions as to the extent of impediments he would face if removed to South Sudan. I conclude that there would be very real and substantial impediments and challenges for the applicant if he were removed. This consideration weighs strongly in favour of revocation of the original decision.
Conclusion as to whether there is another reason to revoke the original decision

I have considered the specific circumstances relating to the applicant as part of my consideration whether to revoke the cancellation decision. I am now required to weigh up those considerations.
The primary considerations relating to the protection of the Australian community and the expectations of the Australian community are strongly in favour of not revoking the cancellation decision. The offending was most serious; including domestic violence perpetrated in front of his children and numerous unprovoked attacks on persons doing a public duty. The domestic and other violence were carried out over a significant period of time after numerous warnings had been provided.
I do not consider that the applicant has developed an appropriate level of insight into the seriousness of the domestic and other violence perpetrated upon his victims. There is a real and substantial risk that the applicant will reoffend by committing further domestic and other violence. I note that the Australian community may be more tolerant of his criminal activity because he has lived most of his life in Australia, but the nature of the offending is such that the risk of further offending is unacceptable to the Australian community who, in these circumstances, would expect the applicant to forfeit the privilege of staying in Australia.
There are countervailing considerations, but they do not outweigh the primary considerations of the protection and expectations of the Australian community. I have given some weight to the interests of the applicant’s children and his nieces and nephews when considering the primary consideration of the best interests of minor children. The applicant’s children are still young and would benefit from having a male role model in their life, but there is a risk that if his poor behaviour continues it will have a negative impact on his children.
With respect to the other consideration of the strength, nature and duration of ties at paragraph 14.2 of Direction 79, I note that the applicant comes from a tight knit and close family who will be impacted by his removal from the country. His sisters will miss him and the support he previously provided to them and their children. The effect of non-revocation on his mother will also be significant because she is not well. Fortunately, the mother has others within the family who are able to continue to look after her. The same can be said for the nieces and nephews of the applicant. This is a factor that weighs in favour of revoking the cancellation decision but overall, the strength, nature and duration of ties is a factor which only marginally favours revocation of the cancellation decision.
The most significant, in terms of weight, of the other considerations are the risk of harm if returned, the international non-refoulement obligations and the extent of impediments if removed. These considerations favour revocation of the cancellation decision. If not revoked, the applicant will face the very real risk of physical harm and violence upon his return to South Sudan. The applicant has no links with South Sudan because he has never lived there and has no remaining family there (although the whereabouts of the father is uncertain). South Sudan remains a dangerous place where violence along ethnic lines puts him at risk of harm and where he would not receive the medical attention he requires for his mental health and his hepatitis B.
In terms of weighing up the considerations both for and against revocation, I am minded to place more weight on the primary considerations of the protection and expectations of the Australian community than on the other countervailing considerations. The dangers and difficulties that the applicant would meet upon his return to South Sudan are real and serious, but they do not outweigh the very real risk of harm to the Australian community if the applicant is not removed. The applicant has committed very serious crimes and has not shown appropriate remorse, nor has he shown that he is rehabilitated. By cancelling the applicant’s visa, the Government is exercising its commitment to protecting the Australian community from harm. Given the seriousness of the offending by the applicant and the very real risk that he will reoffend, the primary considerations of protection and expectations of the Australian community outweigh any claims with respect to the other considerations including risk of harm, non-refoulement and the extent of impediments if removed. The countervailing factors referred to above do not outweigh the factors in favour of non-revocation. In this regard, I note that primary considerations should generally be given greater weight than the other considerations.[25] I see no reason not to apply this approach in this case.
[25] Direction 79 at 8(4).
This conclusion is reached by applying the principles in [6.3] of Direction No. 79 to the specific circumstances of the applicant who has committed serious crimes involving domestic and other violence, breach of bail conditions and breach of intervention orders:
(a)Being able to remain in Australia is a privilege Australia conferred on the applicant in the expectation that he is 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 – by committing the crimes of domestic and other violence, the applicant has not been law-abiding, he has shown disregard for Australia’s law enforcement network and he has threatened and caused harm to women.[26]
(b)The Australian community expects that the Australian government should cancel the visas of non-citizens who commit such serious crimes in Australia.[27]
(c)The applicant, as a non-citizen who has committed a serious crime of a violent nature against women, should generally expect to forfeit the privilege of staying in Australia.[28]
(d)Australia has a low tolerance with respect to the criminal offending of the applicant who has been participating in, and contributing to, the Australian community only for a short period of time.[29]
[26] Ibid at 6.3(1).
[27] Ibid at 6.3(2).
[28] Ibid at 6.3(3).
[29] Ibid at 6.3(5).
It follows from the application of these guiding principles that I am not satisfied that there is another reason why the cancellation decision should be revoked.
Decision of the Tribunal
The decision of the Tribunal is to affirm the decision under review.

101.    I certify that the preceding one hundred [100] paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones.

.............[Sgnd]..........................
Administrative Assistant Legal
Dated    28 August 2020
Dates of hearing:  13 and 14 July 2020
Applicant’s Representative:  Ms Daye Gang of Counsel, instructed by Refugee Legal
Respondent’s Representative:  Mr Oliver Morris, Clayton Utz

[2020] AATA 3306

28 August 2020

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