GZWR and Minister for Immigration and Border Protection (Migration)

GZWR and Minister for Immigration and Border Protection (Migration) [2017] AATA 85 (30 January 2017)
Division:GENERAL DIVISION
File Number: 2016/3245
Re:GZWR
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:30 January 2017
Place:Brisbane

I affirm the decision under review.
.......................................................................
Deputy President Dr P McDermott RFD
CATCHWORDS
MIGRATION – application for visa refused on character grounds – applicant does not pass the character test – sentenced to a term imprisonment totalling more than 12 months – the protection of the Australian community from criminal or other serious conduct relevant – expectations of Australian community not met – other considerations relevant – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 500, 501, 501CA
CASES
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
Minister for Immigration and Border Protection v Le [2016] FCAFC 120
SECONDARY MATERIALS
Direction No 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
30 January 2017
INTRODUCTION

This application is for a review of a decision of a delegate of the Minister for Immigration and Border Protection (“the respondent”) dated 7 June 2016 to not revoke the cancellation of the Class XB Subclass 200 visa of GZWR (“the applicant”) pursuant to s 501CA(3A) of the Migration Act 1958 (Cth) (“the Act”).
BACKGROUND
The applicant was born in Sudan in 1986. On 5 December 2002, he entered Australia and was granted a Class XB Subclass 200 visa.
The applicant was convicted or found guilty of some 138 criminal offences between 2003 and 2015, including:
·17 offences of violence, including offences of assault and assault occasioning bodily harm (13 of these offences were committed against police officers);
·eight offences of driving whilst under the influence of alcohol;
·eight offences of unlicensed driving;
·12 offences of dishonesty including offences of forgery;
·five offences of stealing or unauthorised dealing with goods; and
·64 breaches of court or other orders or directions including breaches of bail and probation orders.
On 16 February 2016, the respondent cancelled the applicant’s Class XB Subclass 200 visa (“visa”) pursuant to s 501(3A) of the Act.[1] The respondent was satisfied that the applicant does not pass the character test because he has a substantial criminal record.
[1] Exhibit A, T-Documents, T2 at p. 19-23
On 24 February 2016, the applicant made representations pursuant to s 501CA of the Act seeking revocation of the cancellation decision.[2] On 7 June 2016, a delegate of the respondent decided under s 501CA(4) of the Act not to revoke the decision to cancel the applicant’s visa.[3]
[2] Exhibit A, T-Documents, T2 at p. 49-52
[3] Exhibit A, T-Documents, T2 at p. 7-18
On 21 June 2016, the applicant lodged an application with this Tribunal for a review of the decision.[4]
[4] Exhibit A, T-Documents, T1.at p. 5-6
JURISDICTION
The Tribunal has jurisdiction to review the decision of the delegate of the respondent dated 7 June 2016 under section 500(1)(ba) of the Act.
CHARACTER TEST
Substantial criminal record
Section 501(6)(a) of the Act provides that a person does not pass the character test if he or she has a substantial criminal record. Section 501(7)(c) of the Act provides that a person has a “substantial criminal record” if he or she has been sentenced to a term of imprisonment for a period of 12 months or more.
The applicant has received 18 sentences of imprisonment. On five occasions between 2008 and 2015 the applicant has been sentenced to a term of imprisonment for a period of 12 months. On 20 October 2015, the applicant was most recently sentenced to a term of imprisonment for 12 months for the offence of driving a motor vehicle under the influence of alcohol. [5]
[5] Exhibit A, T-Documents, T2 at p. 40-41
As the applicant was sentenced to a period of imprisonment of 12 months or more, he has a substantial criminal record as defined under section 501(7)(c) of the Act and does not pass the character test.
MINISTERIAL DIRECTION
Section 499 of the Act empowers the respondent to give written directions about the performance of functions and the exercise of powers under the Act. The effect of this section is that the Tribunal is required to comply with Ministerial Direction No 65 (Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA) (“the Direction”). The Direction commenced operation on 22 December 2014 and remains in force.
The Preamble provides that the objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.[6] An objective of the Direction is to provide a framework within which decision-makers approach their decision of whether to revoke a mandatory cancellation under section 501CA of the Act.[7]
[6] Direction No 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA at [6.1(1)]
[7] Ibid at [6.1(4)]
The Preamble specifies seven principles which provide a framework within which decision-makers should approach their specific task:[8]
(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 vulnerable members of the community such as minors, 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.
[8] Ibid at [6.3]
Paragraph 8 of the Direction states:
…
(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(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 deciding whether to revoke the mandatory cancellation of the applicant’s visa, paragraph 13(2) of the Direction provides the following are primary considerations:
a) Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c) Expectations of the Australian community.
I will consider each of these primary considerations in turn.
Primary consideration A – The protection of the Australian community from criminal or other serious conduct
Paragraph 13.1(1) of the Direction provides:
When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
Paragraph 13.1(2) of the Direction provides that decision-makers should also 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.
It is fair to say that the applicant has quite an extensive history of offending. In particular, the applicant has committed a number of assault and drinking driving offences as well as engaging in fraudulent conduct and committing acts of property damage.
Assaults upon the general public
The applicant has been found guilty of assaulting members of the general public. On 25 June 2004, the applicant was found guilty of the offence of common assault on a 17 year old female worker who was working in a fast food restaurant. The applicant struck her to the back of her head. The applicant threatened to shoot the police when he was arrested.[9]
[9] Exhibit D, Attachment N & O, p. 70-75
On 8 April 2004, the applicant was found guilty of an assault on a male commuter on a train. The commuter was assisting a member of Queensland Rail staff who was attacked by a male person who was with the applicant. The applicant then attacked the commuter by punching him in the face several times. The complainant stated that after being struck he fell down between the stationary train and the platform. The applicant then kicked the commuter in the face while he was on the ground. After the commuter climbed to his feet the offender then repeatedly punched him to the face knocking him to the ground again. The victim suffered injuries to his face, eye and nose and had been bleeding from his nose. [10]
[10] Exhibit D, Attachment P & Q, p. 76-81
On 21 October 2004, the applicant was convicted for assaulting a taxi driver by punching him in the face and ribs and kicking him in the back. The taxi driver received facial abrasions, swelling and cuts as well as an abrasion to his arm and he was treated by Queensland Ambulance Services who attended the city station.[11] A contemporaneous report records: “…injuries consisted of bandages covering both temple areas of head, bandage on right elbow and bruising all along right arm”[12].
[11] Exhibit D, Attachment P & Q, p. 82-88
[12] Exhibit D, Attachment R, p. 83
Property damage
In 2004, the applicant was twice convicted for wilful damage to property.
Assaults upon police officers
The applicant has been found guilty of a number of assaults upon police officers. On 25 June 2004, the applicant was found guilty of a serious assault on a female police officer by kicking and punching her. The police officer sustained injuries when she fell. [13]
[13] Exhibit D, Attachment B & C, p. 28-37
On 25 June 2004, the applicant was found guilty of three charges of assaulting a police officer after he pushed one female police officer to her shoulder forcing her off balance. The applicant also twisted his torso, raised his right leg and kicked the left knee of a male police officer. [14]
[14] Exhibit D, Attachment D & E, p. 40-44
On 6 February 2007, the applicant was convicted of assaulting two police officers by kicking one police officer in the shoulder and kicking another police officer in the hip. [15]
[15] Exhibit D, Attachment D & E, p. 49-52.
On 20 December 2007, the applicant was convicted of assaulting a police officer by kneeing that officer in the groin causing the officer to bend over in pain. [16]
[16] Exhibit D, Attachment D & E, p. 53-54.
On 3 February 2010, the applicant was convicted of assaulting a police officer when he raised his hands in an aggressive manner towards a police officer whose back was turned. He was also convicted of assaulting another officer when the applicant used his right leg to kick the police officer in his left shoulder causing him immediate pain and discomfort in the area.[17]
[17] Exhibit D, Attachment D & E, p. 55-58
As recently as 18 November 2014, the applicant was convicted of assaulting a police officer when he approached the officer with a clenched fist. When the applicant was arrested he kicked out at police.[18]
[18] Exhibit D, Attachment D & E, p. 67-69
Driving under the influence of alcohol
The applicant has committed a number of driving offences whilst under the influence of alcohol on the following dates: 12 June 2006, 27 January 2008, 9 March 2008, 14 November 2008, 14 November 2010, 12 January 2011, 7 April 2013, and 20 February 2015.
His latest offence was on 9 March 2015 when the applicant was in charge of a motor vehicle and he refused to provide a sample of his breath for analysis. On 20 October 2015, the applicant was convicted of driving a motor vehicle under the influence of alcohol for which he was sentenced to 12 months imprisonment. The applicant in representation to the respondent considers that he was “unjustly treated by the justice system” despite his admission that he was drunk on that occasion. [19]
[19] Exhibit A, T-Documents, T2, p. 69
When the applicant was sentenced on 20 October 2015, Magistrate Warfield remarked:[20]
It shows that at that time, you had little regard for public safety. You were well and truly affected by alcohol and this would be your one, two, three – fifth high reading since 2010. By continuing to drink alcohol and be in charge of motor vehicles or drive, you’re putting the public at risk, let alone yourself and your passengers.
[20] Exhibit A, T-Documents, T2, p. 41.
Dishonest conduct
The applicant has also committed a number of offences of dishonesty. On 4 September 2004, he stole car keys to a taxi cab.[21] On 12 February 2011, the applicant stole a credit card which was dishonestly used on eight occasions on that day to acquire goods.[22]
[21] Exhibit D, Attachment P & Q, p. 82-88
[22] Exhibit D, Attachment U, p. 106-121.
Breaches
The applicant has committed 64 offences of breach of bail undertakings, breaches of probation orders and other directions. [23]
[23] Exhibit A, T-Documents, T6, p. 163-167.
Assessment
Paragraph 9.1.2 of the Direction has as its heading “The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct”. In considering the risk to the Australian community, paragraph 9.1.2(2) states decision-makers must have regard to, cumulatively: (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 information and evidence on the risk of the non-citizen re-offending; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
In my assessment the protection of the Australian community from criminal or other serious conduct weighs very heavily in favour of not revoking the cancellation of the applicant’s visa. From 2004 until 2014 the applicant committed a number of assaults. There is evidence that the applicant practices kick boxing and a number of his assaults against the public and police have involved him kicking his both female and male victims, some of the victims have required medical attention. This propensity for violence is a matter of grave concern and is indicative of the risk that the applicant continues to pose to the Australian community. In my opinion the applicant would continue to commit assaults if he was released into the community. The fact that the applicant has a propensity to kick or punch the face of his victims is a matter of concern.
The fact that the applicant has a history of driving whilst intoxicated including at the high range puts the community at risk of serious injury to person or property. I rely upon the assessment of Magistrate Warfield who has stated that the applicant “had little regard for public safety” and was “putting the public at risk”. [24] The public are certainly at risk because of the applicant having on eight occasions operated a motor vehicle whilst under the influence of alcohol as well as his disregard for traffic laws by driving whilst unlicensed or disqualified (the applicant has never held a driver’s licence) and by disobeying a “one way” sign. [25] The fact that the applicant considers that he was unjustly treated by the justice system for being drunk while in charge of a motor vehicle is a matter of concern. It indicates that the applicant does not appreciate the gravity of his conduct and that there is a high likelihood that he would repeat such conduct.
[24] Exhibit A, T-Documents, T2, p. 40-41.
[25] Exhibit A, T-Documents, T2, p. 34-37.
The fraud committed by the applicant is also a matter of concern in considering the need to protect the Australian community from criminal conduct.
The applicant claims that he would not reoffend because of his experience in detention. However, he has continued to offend despite serving a number of custodial sentences and even after receiving a number of warnings from the respondent that his visa could be cancelled if he reoffended. The applicant has expressed some remorse, stating in his evidence “I got myself into this” and “I don’t deserve [for] these people to this and that because I put myself here… no one else”. He also made comments in relation to his criminal record, stating that he is “not proud of it whatsoever”, “[it was a] bad cycle… [I] didn’t know what I was doing”. The statements made do not indicate that the applicant is remorseful to the victims of his assaults, or understands the wider impact of his offending in the community. The extensive submissions that the applicant wrote in his request to the respondent for reconsideration of the decision to cancel his visa does not contain any expression of remorse for the victims of his offences. [26]
[26] Exhibit A, T-Documents, T2, p. 60-82.
I do not accept the submission of the applicant that there is a low risk of recidivism. There were no medical reports before the Tribunal which would support this submission. This recent offence of possession of dangerous drugs[27] is certainly not consistent with there being a low risk of recidivism.
[27] Exhibit A, T-Documents, T19, p. 265.

There is some evidence that the applicant has associations with groups of males who are engaged in criminal activities.
The Applicant in giving evidence stated the reason for his offending was his involvement in the ‘wrong crowd’. The applicant committed a number of offences between 2003 and 2014 in the presence of groups of males.[28] Mr McDougall in the statement he made in support of the applicant stated that “[the applicant’s] run ins with the law comes mostly down to the crowd that he has been engaged with” and the applicant “has the option to choose crowds without any disposition towards law breaking”[29].
[28] Exhibit D, Attachment C, p. 36, Exhibit D, Attachment K, p. 57-58 and Exhibit D, Attachment M, p. 67-69
[29] Exhibit C, Statement of Mr C McDougall
While the applicant has expressed his intention upon release to dissociate from the ‘wrong crowd’, his pattern over the past 11 years indicate that the applicant has not yet managed to do so and it would not be likely that he would do so upon release into the community. It is on this basis also that I do not accept that there is a low risk of recidivism.
In Tanielu v Minister for Immigration and Border Protection [2014] FCA 673 at [155], Justice Mortimer explained that a risk of harm posed by an individual can only be ascertained by evaluating the seriousness of any future harm which might be caused and the likelihood of that harm occurring. In my assessment the applicant is likely to reoffend by committing further violent assaults and by driving under the influence of alcohol, and such conduct would be serious and pose a risk to the community. In my assessment the applicant in driving while unlicensed and under the influence of alcohol is putting the public at risk of serious injury. His propensity for assaulting people in the head could result in a permanent injury.
Primary consideration B – The best interests of minor children in Australia
Paragraph 13.2 of the Direction requires me to consider whether the revocation of the cancellation decision is in the best interests of minor children in Australia affected by the decision.[30] While the applicant does not have any biological children, he contends that he has a close relationship with the children of sisters and cousins. I find that the primary consideration of the best interests of minor children in Australia weighs in favour of the revocation of the cancellation of the applicant’s visa.
[30] Direction No 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA at [13.2(1)]
Primary consideration C - Expectations of the Australian community
The Australian community expects non-citizens to obey Australian laws.[31] Paragraph 6.3(3) of the Direction mentions that a non-citizen who has committed a serious crime of a violent nature against vulnerable members of the community, such as minors, should generally expect to be denied the privilege of coming to or forfeit the privilege of staying in Australia.
[31] Ibid at [13.3(1)]
Paragraph 13.1.1(1)(b) of the Direction provides that crimes committed against vulnerable members of the community or government representatives or officials due to the position they hold, or in the performance of their duties are serious. The applicant committed a serious crime against a vulnerable member of the community when he assaulted a female minor who worked in the fast food restaurant. He certainly committed a serious crime when he assaulted police officers who were acting in the performance of their duties. One matter of concern is that on a number of occasions the applicant, who is proficient in kick boxing, has kicked some officers. I also regard the assault of the taxi driver as being a crime against a vulnerable member of the community because the applicant attacked the driver from his side.
In considering the expectations of the Australian community I have taken into account the observations of Magistrate Warfield who on sentencing the applicant on 20 October 2015 remarked that the applicant “had little regard for public safety” and that he was “putting the public at risk” by drink driving. [32] I have also taken into account the statements made in support of the applicant by his family and friends. I consider these cannot be weighed highly in representing genuine views and opinions of the community. This is due to the evidence presented by his mother at hearing that she did not write the letter of support herself and was not familiar with its contents; rather the applicant himself had written it and the applicant’s mother had signed it without reading or understanding its contents.[33]
[32] Exhibit A, T-Documents, T2, p. 40-41
[33] Exhibit A, T-Documents, T2, p. 83-96
The applicant contends that the Australian community would expect that the cancellation of his visa is revoked, relying on an online petition titled “Immigration: BRING [GZWR] BACK TO HIS TRUE HOME”. I do not place any weight on this petition because it is not apparent that the signatories of the petition are aware of the extent of the applicant’s criminal history. For example, one signatory has commented “He has been driven to make a man of himself by work and studying and unfortunately made a mistake that hardly warrants being put into Christmas Island”. It is difficult to imagine that the signatory was referring to all 138 offences committed by the applicant when they mentioned “a mistake”. Indeed the creator of the petition, Mr McDougall who I regard as an honest witness, conceded in cross-examination that he was not aware of the specific number of offences the applicant had committed. Another signatory to the petition gives an address of an Australian suburb which is stated to be in New York.
Paragraph 13.1.1(g) of the Direction requires consideration of whether a non-citizen has re-offended since he was formally warned about the consequences of further offending in terms of the non-citizen’s migration status. The applicant was sent a formal counselling letter on 31 May 2007 and again on 7 December 2007.[34] On 16 September 2010, the applicant was sent a notice of intention to consider the cancellation of his visa. [35] After the applicant responded to this notice on 13 October 2011 the delegate made a decision not to cancel his visa and advised the applicant in the following terms: “Please note by continuing to commit crimes, you move closer to the time when your visa will come under consideration unfavourably and perhaps be cancelled. To avoid that result you need to change your behaviour and attitude.” [36] On 14 October 2011, the applicant signed the following acknowledgment: “I understand that I can again be considered for refusal or cancellation of any visa granted to me if further information of relevance comes to the attention of the Department at any time in the future and that if this happens, my past conduct and previous relevant information can also be reconsidered”. [37]
[34] Exhibit A, T-Documents, T11, p. 227-228
[35] Exhibit A, T-Documents, T9.
[36] Exhibit A, T-Documents, T22, p. 270-271.
[37] Exhibit A, T-Documents, T22, p. 272.
The applicant has continued to commit offences despite having received a number of warnings from the Department of Immigration and Border Protection (“the Department”) that further offending would have consequences on his migration status. These warnings have been of no discernible effect on the behaviour of the applicant who has committed criminal offences after receiving the warnings. The applicant has committed 52 criminal offences as well as being sentenced to 14 terms of imprisonment since receiving a formal counselling letter of 31 May 2007. Four of these offences were because of the violent conduct of the applicant. Seven offences were for driving under the influence of alcohol.
Apart from warnings from the Department, the courts have also issued a number of warnings to the applicant which he has not heeded. As early as in 2004, Magistrate Kehoe advised the applicant in the following terms: “You are fairly lucky to be in this country at the moment. You keep coming to the courts with some frequency… if the Government is looking for a reason to deport you, they won’t have to look too far”. [38]
[38] Exhibit A, T-Documents, T5, p. 162.
The primary consideration of the expectations of the Australian community weighs very heavily in favour of not revoking the cancellation of the applicant’s visa. The Australian community would in my assessment expect that the applicant should not hold a visa when having regard to his record of offending over a period of time despite having received a number of warnings and acknowledging that he would be considered for refusal or cancellation of his visa if further information of relevance came to the attention of the Department.
Other Considerations
Paragraph 14(1) of the Direction provides that I have to consider the other considerations where they are relevant.
Non-refoulement obligations
There is no cogent evidence before me that the applicant is at risk of harm that would invoke Australia’s international non-refoulement obligations if he is relocated either to Sudan or South Sudan.
The applicant has not given any evidence before the Tribunal which is relevant to the non-refoulement obligations of Australia. The applicant in giving evidence also did not make any claims in relation to complementary protection. The delegate referred to previous claims by the applicant that he would face imprisonment and/or death if he was returned to Sudan. The delegate considered that any claims could be determined in the context of a claim for a protection visa.[39]
[39] Exhibit A, T-Documents, T2, p. 16
The applicant relies upon Article 33(1) of the Convention Relating to the Status of Refugees[40] and the United Nations Office for the Co-ordination of Humanitarian Affairs Report concerning the geopolitical situation in South Sudan. [41] The applicant contends he would be at risk if he was sent to South Sudan. It is not apparent why the applicant would be sent to South Sudan. The UN report does not, however, refer to the situation in Sudan where the applicant was born. Mr McDougall verified that the applicant is from “north Sudan”. The applicant himself during the hearing interjected to confirm that he was from Sudan.
[40] Adopted 28 July 1951, entered into force 22 April 1954
[41] Applicant’s Statement of Facts, Issues and Contentions dated 25 September 2016
The applicant in submissions asserts that he is stateless. However, the International Obligations and Humanitarian Concerns Assessment that is in evidence concludes that the applicant would be accepted as a citizen of both Sudan and South Sudan.[42] There was no evidence placed before the Tribunal which would contradict this conclusion.
[42] Exhibit A, T-Documents, T11, p. 217
The representative of the applicant informed this Tribunal that the applicant is a Christian. The assessment document records that the applicant has made no claims as to whether he is a practising Christian. The assessment document has, however, been prepared on the assumption that the applicant is a Sudanese Christian. Mr McDougall, who was called by the applicant to give evidence and describes himself as a “lifelong friend” of the applicant, informed the Tribunal that the applicant is of “the Muslim faith” and that on a number of occasions they have attended a mosque together and have broken the fast together after observing Ramadan. Another witness called by the applicant, Mr Lindell, remarked that he believes that the applicant is “becoming” a Christian. Certainly there is no cogent evidence before me that the applicant is a practising Christian, the applicant made no such claim when giving evidence.
Having regard to Paragraph 14.1(4) of the Direction it is unnecessary for me to determine whether international non-refoulement obligations are present as the applicant still has the right to apply for a protection visa. The applicant, as at the date of the hearing, had not applied for a protection visa. The representative for the applicant remarked that this was because of the criteria that a protection visa may be refused if the Minister considers on reasonable grounds that the applicant is a danger to the community.[43] Recently, the Federal Court of Australia in a case concerning the application of the Direction has confirmed that the non-refoulement obligations of Australia are not a mandatory consideration under section 501(2) of the Act: see Minister for Immigration and Border Protection v Le [2016] FCAFC 120 at [41] per Allsop CJ, Griffiths and Wigney JJ. Certainly if the applicant makes an application for a protection visa then Australia’s international obligations could then be considered at that point.
[43] Migration Act 1958 (Cth) section 36 (1C)
The respondent submits that it is open for the applicant to apply for a protection visa. The applicant is still permitted under section 501E(2) of the Act to make an application for a protection visa. There is no issue that the visa that was cancelled was a protection visa as defined in section 35A of the Act.
Strength, nature and duration of ties
The applicant has lived in Australia from the age of 16 years. At the date of the hearing he was 29 years of age. Both of the applicant’s parents and his siblings reside in Australia. He also has relatives in Australia who are aunts and uncles, nieces and nephews and cousins.
At the hearing I was advised that the father of the applicant is not well and the applicant sought leave to obtain information about his father. I thought it important to give the applicant an opportunity to obtain information about the medical condition of his father. The applicant has submitted a medical certificate from Dr Ivy which confirms that the applicant’s father has a number of medical conditions but beyond listing those conditions does not give any explanation of the current state of health of the father.[44]
[44] Supplementary Submissions by the Applicant dated 1 November
The mother of the applicant works in a meatworks and she would expect that the applicant would be the care giver of his father if his visa is restored. However, the tenor of the evidence of the applicant was that he would not live at home if his application for revocation of the decision to cancel the visa was successful. I do not accept the submission of the applicant that it is plausible that he would be the care giver of his father if his application was successful when he indicated that he would obtain a place of his own and in view of his plans to seek employment.
The respondent relies upon para 14.2(1)(a) of the Direction which states that decision-makers are to 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 non-citizen 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.
The respondent has pointed out that the applicant began offending within less than 9 months of his arrival in Australia. I, however, do not consider that it is fair to accept the submissions of the respondent that there is little or no evidence that the applicant has positively contributed to the Australian community. This is because the delegate has made a finding that the applicant has made a positive contribution to Australia through his employment although the evidence before me does not disclose the extent of that contribution. There is some indication that the applicant may obtain further employment through the assistance of Mr Lindell who is an operations supervisor of a company that makes electrochemical sensors.
After the hearing the applicant tendered a letter from a Mr Bates who considers that the applicant would have an involvement in youth engagement cultural activities. I do not accept that the applicant would have such an involvement if he were able to remain in Australia. Mr Bates was not called as a witness by the applicant and so could not be cross-examined. Further, the applicant, in giving evidence, did not mention such an involvement and could not be cross-examined about such an involvement.
My consideration of the strength, nature and duration of the applicant’s ties to Australia weighs heavily in favour of the revocation of the cancellation of the visa.
Impact on Australian business interests
There is no evidence that Australian business interests would be impacted if the cancellation of the applicant’s visa is not revoked.
Impact on victims
There is no evidence before the Tribunal that victims of the applicant’s offences will be impacted by the decision to revoke the cancellation of the applicant’s visa.
Extent of impediments if removed
The Direction states at paragraph 14.5(1) that:
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 a young man and there is no evidence that his health would preclude him from being returned to Sudan. There is no evidence of any language or cultural barriers. Certainly at the conclusion of the hearing which was by video-link, the mother of the applicant spoke to him in their native language. The applicant would certainly face difficulties in returning to Sudan but he is young and has a certificate III in electronics engineering. He did not give any evidence before the Tribunal about impediments he would face in Sudan. This other consideration weighs somewhat in favour of the revocation of the cancellation of the visa.
Other
I am satisfied that there are no further other considerations relevant to deciding whether or not to revoke the cancellation of the applicant visa. Under paragraph 14 of the Direction there is a reference to the other considerations not being limited to those set out above, but in my assessment, there are no other considerations which are relevant here.
CONCLUSION
I am satisfied that the applicant does not pass the character test in the Act.
I consider that there is an unacceptable risk that the applicant will again commit serious offences if his visa was restored. I also consider that the expectations of the Australian community are that he would not be allowed to remain in Australia. These are factors which weigh heavily in favour of not revoking the cancellation of the applicant’s visa.
There are factors which weigh in favour of revoking the cancellation of the visa. These are the best interests of minor children in Australia, the strength, nature and duration of the applicant’s ties to Australia as well as the extent of impediments he would face if removed. However, these considerations are not outweighed by the primary considerations which weigh heavily in favour of not revoking the cancellation of the applicant’s visa.
I do not consider that there is any reason why the decision to cancel the applicant’s visa should be revoked.
I consider that the decision that was made by the delegate of the respondent on 7 June 2016 is the correct and preferable decision. In accordance with s 43(1)(a) of the Administrative Appeals Tribunal Act 1975 I affirm the decision.
While the parties accept that this application does not fall within the scope of section 501K of the Act, I have considered that a confidentiality order is warranted so that the applicant will have the protection afforded by section 501K if he applies for a protection visa.
DECISION

I affirm the decision under review.

I certify that the preceding 87 (eighty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

.............................................................
Associate
Dated: 30 January 2017

Date(s) of hearing: 20/10/2016

Date final submissions received: 27/01/2017

Solicitors for the Applicant: Martin Udall & Associates

Solicitors for the Respondent: Clayton Utz

[2017] AATA 85

30 January 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction

Date(s) of hearing:	20/10/2016
Date final submissions received:	27/01/2017
Solicitors for the Applicant:	Martin Udall & Associates
Solicitors for the Respondent:	Clayton Utz