HWGF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 2577

HWGF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2577 (9 August 2023)
Division:GENERAL DIVISION
File Number: 2023/3635
Re:HWGF
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member S Burford
Date of decision: 9 August 2023
Date of written reasons: 15 August 2023
Place:Perth

The decision of the delegate of the Respondent dated 16 May 2023 not to revoke the cancellation of the Applicant’s Class XB Subclass 200 Refugee visa is set aside and substituted with a decision that the cancellation of the Visa is revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).
...........Sgd................................
Senior Member S Burford
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction No 99 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – strength, nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community – extent of impediments if removed – Applicant is a 28 year old man who arrived in Australia as a 11 year old refugee – best interests of minor children – links to the Australian community – legal consequences of the decision – extent of impediments if returned to Democratic Republic of Congo – Non-Revocation Decision is set aside and substituted with a decision that the cancellation of the visa be revoked
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth) ss 15, 46(1)(d), 189, 196, 197C, 499, 499(1), 499(2A), 500(1)(b), 500(6B), 500(6H), 500(6J), 500(6L), 501, 501(1), 501(2), 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(3), 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501E, 501E(2), 501F, 501F(4), 503
Migration Regulations 1994 (Cth)
CASES
AJL20 v Commonwealth of Australia [2020] FCA 1305
BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456
FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202; (2019) 273 FCR 121
Khalil and Minister for Home Affairs [2019] FCAFC 151
Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155
XFKR and Minister for Immigration and Border Protection (Migration) [2017] AATA 2385
SECONDARY MATERIALS
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Direction No 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (8 March 2021)
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction No 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (23 January 2023) – paras 2, 3, 4(1), 5.1, 5.1(3), 5.1(4), 5.2, 5.2(3), 5.2(4), 6, 7, 7(2), 8(1), 8.1(1), 8.1(2), 8.1.1, 8.1.1(1)(a), 8.1.1(1)(b), 8.1.1(1)(b)(i), 8.1.1(1)(b)(ii), 8.1.1(1)(b)(iv), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.1(1)(h), 8.1.2(1), 8.1.2(2), 8.1.2(2)(a), 8.1.2(2)(b), 8.2, 8.3(1), 8.3(2), 8.3(3), 8.4, 8.4(4), 8.5(1), 8.5(2), 8.5(2)(a), 8.5(2)(b), 8.5(2)(c), 8.5(2)(d), 8.5(2)(e), 8.5(2)(f), 8.5(3), 9, 9.1, 9.2, 9.2(1)(a), 9.2(1)(b), 9.2(1)(c), 9.3, 9.4
The World Bank, ‘The World Bank in DRC’ (29 March 2023)
< Nations High Commissions for Refugees, ‘UN Refugee Agency calls for ban on forced returns of asylum-seekers to eastern DR Congo’ (18 November 2021)
< FOR DECISION
Senior Member S Burford
15 August 2023
The decision in this matter was made and provided to the parties on 9 August 2023 with a note that written reasons would be provided within a reasonable time. These are those written reasons.[1]
THE APPLICATION
[1] See Khalil and Minister for Home Affairs [2019] FCAFC 151 at [41].

The Applicant seeks review of a decision of a delegate of the Respondent (the Minister) dated 16 May 2023 not to revoke the cancellation of his Class XB Subclass 200 Refugee visa (the visa) under s 501CA(4) of the Migration Act 1958 (Cth) (the Migration Act).
The application is made pursuant to s 500(1)(b) of the Migration Act which allows applications to be made to the Administrative Appeals Tribunal for review of decisions of a delegate of the Minister made under s 501 of the Migration Act.
BACKGROUND
The Applicant is a 28-year-old national of the Democratic Republic of Congo (DRC). He claims to have fled the DRC taking refuge in Zambia with his mother and siblings where they were granted Refugee visas.[2] He first arrived in Australia on 2 August 2006 on the visa, at the age of 11, accompanied by his mother and four siblings.[3] He claims his father died in the DRC when he was around 9 years old.
[2] R1, page 95.
[3] R1, page 72.
On 28 January 2022 the Applicant was sentenced in the Darwin Local Court to 14 months’ imprisonment for ‘Aggravated assault’. He was also sentenced to one month imprisonment for contravening a Domestic Violence Order (DVO)’ and fined of $400 for possessing a schedule 2 dangerous drug in a public place. The sentences were cumulative leading to a total effective sentence of 15 months’ imprisonment.[4] At the time of the application was made the Applicant was at Yongah Hill Immigration Detention Centre.
[4] R1, pages 43, 45-54.
On 8 February 2022, the Applicant’s visa was mandatorily cancelled pursuant to s 501(3A) of the Migration Act on the basis that he had a substantial criminal record within the meaning of s 501(6)(a) of the Migration Act and was serving a sentence for imprisonment on a

full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a state or territory (the Cancellation Decision).[5] He was notified of the visa cancellation by hand at Darwin Correctional Centre by letter dated 8 February 2022. The acknowledgement of receipt was signed by the Applicant and the Corrective Services Officer on 11 February 2022 which the Tribunal finds is the date the Applicant was notified of the decision.[6] The Applicant requested revocation of the Cancellation Decision using the Department’s ‘Request for Revocation’ form which was signed and dated 8 March 2023.[7] He submitted a personal circumstances form and evidence in support of his request for revocation.[8] His representative later provided written submissions in support of the request for revocation.[9]
[5] Migration Act ss 501(6)(a) and 501(7)(c); R1, pages 86-91.
[6] R1, page 92.
[7] R1, pages 126-129.
[8] R1, pages 130-143, 93-125, 145, 150-174-216.
[9] R1, pages 152-173.
On 16 May 2023, a delegate of the Minister decided, under s 501CA(4) of the Migration Act, not to revoke the Cancellation Decision (the Non-Revocation Decision).[10] This is the reviewable decision before the Tribunal.
[10] R1, pages 19-41.
The Applicant was notified of the decision by email via his authorised representative on 17 May 2023.[11]
[11] R1, pages 8-18, 241-243.
On 26 May 2023, the Applicant applied to the Tribunal for review of the Non-Revocation Decision.[12]
[12] R1, pages 1-7.
ISSUES
The issues before the Tribunal are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the Cancellation Decision should be revoked[13] .
[13] see s 501CA(4) of the Migration Act
For the reasons below, the Tribunal has decided that the correct and preferable decision is that the Non-Revocation Decision be set aside and substituted with a decision that the Cancellation Decision be revoked.
THE HEARING AND THE EVIDENCE
The hearing was held on 1 and 2 August 2023 at the Tribunal Registry in Perth. The Applicant appeared in person and his representative, Ms Cindy Zhao of No Borders Law Group, appeared by MS Teams from Queensland. The Respondent was represented by
Mr Jon Papalia of the Australian Government Solicitor, who also appeared by MS Teams.
At the hearing, the Applicant made submissions, gave evidence and was cross-examined.
The Tribunal also took evidence from Ms Sharples, a friend of the Applicant and Ms M, the Applicant’s mother. Ms M requested and was provided with an interpreter who was fluent in the English and Swahili (Congolese) languages and who appeared by telephone. Ms Sharples gave evidence by phone from the Northern Territory. Ms M appeared in person. One of the Applicant’s sisters also attended the hearing, however she was not required for cross-examination.
At the hearing, the Applicant’s representative advised that Mr Bruce Hamilton, the forensic psychologist whose report[14] was submitted in support of the application, was not available for cross-examination. The Tribunal notes that initially the Applicant’s representative said Mr Hamilton had been contacted sometime prior to the hearing but had not responded. The Tribunal asked the Applicant’s representative to recheck his availability and to clarify one apparent error in the report (where test reports were listed with the name which was not the Applicant’s). Mr Hamilton noted his office had responded to the original request with availability and costings of an appearance however they did not hear anything further. Mr Hamilton also corrected the reference to the third party and confirmed the listed results related to the Applicant. A copy of the email was provided to the Tribunal amended for identification.[15]
[14] R1, pages 199-213.
[15] R3.
The Tribunal notes that while the Respondent indicated there were some matters in the report it would have sought to explore further with Mr Hamilton, it did not seek to challenge the overall findings of the report and did not object to it being in evidence.[16]
[16] Transcript, p 7, lines 11-23.
The following documents were marked as exhibits:
·Exhibit A1 – Undated letter from Applicant’s mother;
·Exhibit A2 – Undated letter from Applicant’s brother Mr J;
·Exhibit A3 – Undated letter from Applicant’s sister Ms E;
·Exhibit A4 – Undated and unsigned letter from Applicant’s brother, Master S;
·Exhibit A5 – Photograph and handwritten documents relating to Applicant’s son, Master T;
·Exhibit A6 – Letter from Kaka Zaira dated 25/06/23;
·Exhibit A7 – Undated letter from the Applicant’s current partner Ms JL;
·Exhibit A8 – Undated letter from Samantha Sharples;
·Exhibit A9 – Child Support statements;
·Exhibit A10 – Australian Taxation Office (ATO) Documents;
·Exhibit A11 – Three course completion documents;
·Exhibit A12 – ‘Health discharge assessment for a person in criminal detention’ from the Australian Border Force;
·Exhibit A13 – Drug and alcohol induction screen from international health and medical services;
·Exhibit A14 – Undated letter from the Applicant’s sister, Ms R;
·Exhibit A15 – Men’s referral serviced document with respect to the Applicant;
·Exhibit A16 – Undated letter from Edouard Ndjoku;
·Exhibit A17 – Undated letter from Gordon Benfield;
·Exhibit A18 – Letter from the Applicant dated 18/07/23;
·Exhibit A19 – Copy of the Applicant’s licence to perform high risk work;
·Exhibit A20 – Letter from Yongah Hill IDC concerning W&E barbecue;
·Exhibit R1 – G documents comprising pages 1-243;
·Exhibit R2 – Respondent’s Tender Bundle comprising pages 244-285; and
·Exhibit R3 - Email from Bruce Hamilton (Forensic Psychologist) dated 1 August 2023.
The Applicant filed a Statement of Facts, Issues and Contentions (ASFIC) on 5 July 2023. The Respondent filed a Statement of Facts, Issues and Contentions (RSFIC) dated 14 July 2023. The Tribunal also had before it the material submitted by the Applicant to the delegate in support of the revocation request. That material included further written submissions from the Applicant’s representative.[17]
LEGISLATIVE FRAMEWORK
[17] R1, pages 152-173.
Migration Act
The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds. In some circumstances, where a visa is cancelled on character grounds, the Minister can revoke that cancellation decision.
These powers generally involve consideration of whether a person passes the character test, and if they do not, consideration of whether there is another reason that the decision to cancel a visa should be revoked or the discretion to refuse the visa should be exercised.
The character test is set out in s 501(6) of the Migration Act and provides that a person does not pass the character test if the circumstances listed in that subsection apply. Section 501(6)(a) of the Migration Act relevantly provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by
subsection (7)); …
(Original emphasis.)
A ‘substantial criminal record’ is relevantly defined by s 501(7)(c) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(b)the person has been sentenced to a term of imprisonment of
12 months or more; …
(Original emphasis.)
Under s 501(3A) of the Migration Act, the Minister must cancel the visa of certain incarcerated persons, if the Minister is satisfied that the person does not pass the character test because the person has a substantial criminal record as a result of being sentenced to a term of imprisonment of more than 12 months.
Additionally, under s 501(3A) of the Migration Act, the person must be 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.
If a visa is cancelled under s 501(3A), the Minister must give the person a written notice inviting them to make representations about revocation of the cancellation decision.[18] If the person makes representations in accordance with the invitation, then under s 501CA(4), the Minister may revoke the original decision if satisfied that the person passes the character test or that there is another reason why the original decision should be revoked. Making a revocation decision under s 501CA requires the decision-maker to first decide whether the person passes the character test under s 501CA(4)(b)(i) and, if satisfied that the person does not pass the character test, then decide under s 501CA(4)(b)(ii) if there is ‘another reason’ why the original decision should be revoked.[19]
[18] Migration Act s 501CA(3).
[19] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].
Direction No 99
The Tribunal is required to form a state of satisfaction as to whether there is ‘another reason’ why the original decision should be revoked, reasonably and on a correct understanding of the law.[20] By reason of s 499 (2A) of the Migration Act, in doing so the Tribunal must comply with written directions about the performance of its functions or the exercise of those powers which are given by the Minister pursuant to s 499(1) of the Migration Act.
[20] FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 at [63] (Thawley J); Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456 (Halley J) at [119].
On 23 January 2023, the Minister made Direction No 99: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction No 99) under s 499 of the Migration Act, which commenced operation on 3 March 2023. This Direction replaced the previous Direction No 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (8 March 2021).[21]
[21] Direction No 99 paras 2-3.
A stated objective of Direction No 99 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[22] In exercising the power under s 501CA(4), the Tribunal must have regard to the primary and other considerations set out in Direction No 99 where relevant to the decision.[23]
[22] Direction No 99 para 5.1(4).
[23] Direction No 99 para 6.
Paragraph 5.1 of Direction No 99 sets out ‘[o]bjectives’ including para 5.1(3) which provides that:
Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a fulltime basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction No 99 sets out ‘[p]rinciples’ which must be taken into account by decision-makers under ss 501 and 501CA of the Migration Act. These principles ‘provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA’ and are expressed as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on
non-citizens in the expectation that they are, and have been, law-abiding,
will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)Decision makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) [24](Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
[24] As there is no para 8.55(2) the Tribunal infers this is a reference to 8.5(2).

Informed by the principles set out in para 5.2 of Direction No 99, the Tribunal must take into account the primary considerations listed in para 8, and the other considerations listed in para 9, where relevant having regard to the specific circumstances of the case, in deciding ‘whether to revoke the mandatory cancellation of a non-citizen’s visa’.[25]
[25] Direction No 99 para 6; see also the definition of ‘decision-maker’ in para 4(1) of Direction No 99, which includes the Tribunal.
In making a decision under s 501CA(4), the primary considerations to be taken into account by the Tribunal are:[26]
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the strength, nature and duration of ties to Australia;
(d)the best interests of minor children in Australia; and
(e)expectations of the Australian community.
[26] Direction No 99 para 8.
The ‘other considerations’ that the Tribunal must take into account, insofar as they are relevant to the matter, include (but are not limited to):[27]
(a)       legal consequences of the decision;
(b)       extent of impediments if removed;
(c)       impact on victims; and
(d)       impact on Australian business interests.
[27] Direction No 99 para 9.
Further guidance as to how a decision-maker is to apply the considerations in
Direction No 99 can be found in para 7, which provides that:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?
As noted above, the character test is defined in s 501(6) of the Migration Act. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a ‘substantial criminal record’, as defined by s 501(7). Relevant to the Applicant’s case,
[28] Migration Act s 501(7)(c).
a person has a substantial criminal record if they have been ‘sentenced to a term of imprisonment of 12 months or more’.[28]
As noted above, on 28 January 2022 the Applicant was sentenced in the Darwin Local Court to 14 months’ imprisonment for ‘Aggravated assault’. He was also sentenced to one-month imprisonment for contravening a Domestic Violence Order (DVO)’ and fined of $400 for possessing a schedule 2 dangerous drug in a public place. The sentences were cumulative leading to a total effective sentence of 15 months’ imprisonment.[29]
[29] R1, pages 43, 45-54.
As the Applicant has been sentenced to a term of imprisonment of 12 months or more he does not pass the character test by operation of s 501(7)(c) of the Migration Act.
Accordingly, the Tribunal is not satisfied that the Applicant passes the character test.[30]
[30] See Migration Act s 501CA(4)(b)(i).
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine whether, having regard to the primary and other considerations contained within Direction No 99, there is another reason why the Cancellation Decision should be revoked. The statutory power to revoke will only be enlivened if there is ‘another reason’ why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
The Applicant submitted, in summary that:[31]
[31] ASFIC; R1, pages 152-173.
·he regrets his offending. There were a range of mitigating factors surrounding the offences which should be taken into account. He recognises the seriousness of his actions though he disputes some aspects of the charges. He is committed to making positive changes in his life. He has adhered to the conditions of suspended sentences in the past demonstrating a positive inclination towards rehabilitation and prosocial responsibility;
·he has engaged in rehabilitation and has strong prosocial factors on release which reduce the risk of reoffending. He has been assessed by a forensic psychologist to present a low to moderate risk of reoffending and he plans to relocate to Brisbane to live with his family, which would see his risk more in the low range;
·he has significant ties to the community having arrived as a young person. He has links to the community through sport, school, church, employment and cultural groups. The cancellation decision will have a significant impact on the Applicant’s family, including his mother and his children;
·the best interests of the Applicant’s two children, minor siblings, minor cousin and Ms Sharples’ children is that the Applicant remain in Australia. The interests of his children with whom he has a close relationship and whom he wishes to continue to support emotionally and financially weighs heavily in favour of revocation. The children will be significantly impacted by the loss of contact with their father, in particularly his oldest son who has expressed a desire to live with him;
·the Australian community would be inclined to extend compassion towards the Applicant as a refugee father who has become an integral part of the community;
·he came to Australia as a refugee. Australia’s non-refoulment obligations would be breached if he is returned to the DRC where he faces a risk of harm. Although he could make an application for a protection visa, statistically most protection visa applications are unsuccessful and consideration of his claims should not be deferred to be determined in any protection visa application process;
·as the Applicant has no documentation from the DRC he faces indefinite detention which will impact his mental health;
·he left the DRC as a child and knows little of the country. The security and economic circumstances of the DRC and the Applicant’s lack of family connections in the country present significant impediments if returned. He would be unable to gain employment or access to mental health support and his mental health would deteriorate;
·the victim of his offending, Ms A would be adversely affected by his removal as she would be without his financial and practical support in raising their sons;
·overall, the considerations weighing in favour of revocation should be found to outweigh those weighing against revoking the cancellation of the visa.
The Minister submitted, in summary, that:[32]
[32] RSFIC.
·the Applicant’s offending was very serious and included serious family violence against multiple partners;
·even if the Applicant’s risk of reoffending has been reduced by rehabilitation the Applicant’s rehabilitation is untested in the community;
·the Applicant poses a real and unacceptable risk of reoffending including with regard to current or future partners;
·the Applicant’s family violence offending is ‘objectively and cumulatively significant’ and there is little evidence of rehabilitation;
·although the Applicant has strong ties to the community which weighs significantly in the Applicant’s favour, there is limited evidence of him having made a positive contribution to the community;
·consideration of non-refoulement claims should be deferred as it was open to the Applicant to make a protection visa application;
·while the Applicant faces impediments if removed, he speaks one of the common languages of the DRC, is relatively young and has no physical health issues. In such circumstances the impediments are no insurmountable;
·the Applicant and Ms A were no longer in a relationship and there was no current evidence as to her views regarding the impact a decision not to revoke the cancellation of the Applicant’s visa would have on her;
·the considerations weighing against revocation, outweigh those in favour being the best interests of the Applicant’s biological children (and to a lesser extent his minor siblings, minor cousin and children of his friend Ms Sharples), his ties to Australia and the extent of impediments if removed to the DRC.
The Applicant’s conduct and offending
As noted above, on 28 January 2022 the Applicant was sentenced in the Darwin Local Court to 14 months’ imprisonment for ‘Aggravated assault’. He was also sentenced to one-month imprisonment for ‘contravening a Domestic Violence Order (DVO)’ and fined of $400 for possessing a schedule 2 dangerous drug in a public place. The sentences were cumulative leading to a total effective sentence of 15 months’ imprisonment.[33]
[33] R1, pages 43, 45-54.
This conviction followed a number other earlier convictions for a range of offences between 2013 and 2021. In total there are 27 recorded convictions and two additional offences listed. Nine of the convictions are for offences involving violence.[34] A record of the Applicant’s offending history is at Attachment A.
[34] R1, page 42-44.
The Applicant has been convicted of a number of offences for aggravated assaults against women with whom he was a de facto relationship including Ms A[35] and a former partner, Ms K.[36] He was convicted in January 2022 of breaching a DVO and assaulting Ms A in June 2021 when he struck Ms A in the head with a bottle. This followed earlier convictions for assaulting Ms A in November 2015 (convicted on 29 August 2015),[37] May 2016 (convicted in October 2016),[38] April 2018 (convicted in June 2019),[39] June 2021 (convicted in January 2022).[40] The offences in April 2018 also included assaults on Ms A’s mother and father. The assault against Ms K, the Applicant’s partner prior to Ms A, occurred in February 2013 (convicted in October 2013).[41]
[35] R1, page 57-68, 69-70; R2, pages 244-249, 251-252, 258 – 260, 282. 258 – 260, 267-270, .282-283.
[36] R2, pages 244-249.
[37] R2, page 251-252, 283.
[38] R1, pages 69-70; R2, page 258 – 260, 282.
[39] R1, page 57-68; R2, pages 267-271.
[40] R1, pages 45-56; R2, pages 275-278.
[41] R2, pages 244-249.
Material before the Tribunal indicates the Applicant had a number of DVOs against him for the protection of Ms A. This includes a full non-contact order issued and served on the Applicant on 7 August 2015 for the protection of Ms A. This order was breached on 6 May 2016 [42] confirmed on 14 August 2020 in Darwin Local Court for the protection of Ms A for a period of three years. This order was breached with the events on 29 June 2021.[43]
[42] R2, pages 258-262.
[43] R1, page 47.
The Applicant has also been convicted of several offences against police including assaulting a member of the police force. He has been convicted of damage to property on two occasions. He also has convictions for minor drug and driving offences and for breaching bail.[44]
[44] Attachment A.
In sentencing the Applicant for the offences which occurred on 29 June 2021, including the Aggravated Assault conviction which gave rise to the cancellation his visa, after noting the existence of the DVO, the Crown read out the facts of the offence including as follows:[45]
On 29 June 2021 at approximately 7 pm, [the Applicant] and [Ms A] were at [Ms A’s] residence..….. They’ve had friends visit the property, which consisted of approximately six males and two females……. They have all sat out the back of the property.
Whilst at the address [the Applicant] has consumed an unknown amount of intoxicating liquor when drinking, intoxicated.
The visitors have left the property. [the Applicant] started to verbally abuse [Ms A] over jealousy concerns. [The Applicant] and [Ms A] have returned inside their house, when [the Applicant] armed himself with an empty 750 ml Bundaberg Rum bottle in his right hand and struck [Ms A] to the right side of her head, causing a laceration. This has caused immediate pain to [Ms A], with her fearing for her life. She shouted, “Stop, what is wrong with you.” [The Applicant] continued to verbally abuse [Ms A] and has struck her with a closed fist, both hands, once to each side of her head.
[45] R1, pages 47-48.
The incident had been observed by a neighbour who had called police. When police arrived they observed the Applicant was visibly intoxicated. He left the property and was later arrested.[46]
[46] R1, pages 47-48.
The sentencing judge confirmed with the Applicant’s representative appearing in that matter that the facts were admitted and found those facts to be proven as a result of that confirmation.[47] The Applicant plead guilty to those offences and acknowledged they were serious. He submitted by way of context that he was ‘heavily intoxicated and had very little memory of the offending or the night in question.’ He admitted to striking Ms A with the bottle in the head and that ‘he punched her several times out of anger and jealousy’.[48] It was admitted he had anger management issues and that he was jealous.
[47] R1, page 48.
[48] R1, page 49.
Ms A sought and was granted a full non-contact DVO as a result of the offending. That order is in place from three years from the date of sentencing and allows contact via a third party for the purpose of arranging contact with the children. Before the Tribunal, the Applicant sought to challenge the factual account of the events contained in the transcript of the sentencing hearing.[49] He testified that he was at the house to help with the children. Ms A was drinking with friends and was intoxicated. When he tried to take the bottle off her she was hit. He did not intend to hit her and denied punching her.
[49] Transcript, pages 41-43.
With respect to the offences against Ms A and her parents in April 2018 the Applicant was sentenced in June 2019. In this instance, the Applicant was found guilty of two counts of aggravated assault and one count of assaulting a female. In sentencing remarks, the Court noted that the Applicant had been ‘completely out of control’ and had pushed and dragged Ms A’s father who was 70 at the time causing him visible injuries. He had also shoved Ms A and her mother. The Court made specific reference to the fact the violence had taken place in the presence of the Applicant’s youngest child who the statement of material facts noted was screaming and crying during the altercation.[50] The Applicant was given credit for pleading guilty on the basis of amended agreed statement of facts.
[50] R1, pages 59, 64.
At the hearing the Applicant accepted he had plead guilty on the basis of the agreed statement of facts but denied parts of statement. Elements disputed by the Applicant before the Tribunal, as ‘mitigating factors’ in the offences included claiming his son was either asleep or ‘only partly awake’ during the altercation, that he had a disagreement with Ms A because she and her mother had planted a voodoo doll at the house targeting him, that Ms A’s mother had been pushed when he tried to take his son from her arms to prevent her kidnapping him and denying he had intended to push or drag Ms A’s father.[51]
[51] ASFIC at [24]; Transcript 26-27.
With respect to the Applicant’s claimed version of events surrounding the convictions in 2022 and 2019, the Respondent submitted that the Tribunal was not permitted to go behind the findings of the Court with respect to the convictions in 2022 as the Aggravated Assault charge gave rise to the exercise of power by the Tribunal. With respect to the 2019 offences, the Respondent submitted that applying the caselaw, there was a ‘heavy onus’ on the Applicant to establish alternate facts to those on which a conviction was based.
The Tribunal accepts these submissions as they accord with the Tribunal’s understanding of the authorities. As discussed with the Applicant and his representative at the hearing, the Tribunal is mindful of the authorities relating to the inability of the Tribunal to ‘go behind’ a conviction, particularly where it gives rise to the exercise of power.[52] While the factual basis of a conviction may be more open to challenge where the Applicant has plead guilty and/or the conviction is not the basis for the exercise of power by the Tribunal,[53] the Tribunal considers the authorities establish there is a ‘heavy onus’ on an Applicant to establish a basis for going behind the facts leading to a conviction in such circumstances.[54]
[52] See HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202, per McKerracher J at [77]). See also the survey of Bromberg J HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 (HZCP).
[53] Bromberg J in HZCP at [78] and Branson J in Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313 (Ali) at [43].
[54] Branson J in Ali at [43].
In HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 (HZCP),[55] Bromberg J provided a useful survey of the principles and authorities relating to whether the Tribunal can look behind or impugn a conviction or facts behind a conviction. According to the cases surveyed by His Honour, the Tribunal’s assessment of the circumstances of an applicant’s offending will be an important part of its consideration as to whether to exercise its discretion. As the discussion in HZCP demonstrates, the question of whether and to what degree the Tribunal can investigate the facts underlying an applicant’s convictions is an important one and has been the subject of detailed judicial consideration.[56]
[55] Upheld on appeal in HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202.
[56] Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354; Minister for Immigration and Ethnic Affairs v Gungor (1982) 42 ALR 209; Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313; Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234; Degerli v Minister for Immigration and Ethnic Affairs [1981] FCA 250; Beckner v Minister for Immigration, Local Government and Ethnic Affairs (1991) 30 FCR 49; Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155.
In HZCP, Bromberg J’s detailed consideration of the authorities,[57] summarised the principles to be applied as follows (at [78]):
(1) Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact that the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.
(2) Where the exercise of the power is not founded on the conviction, then the essential facts underlying the conviction are not immune from challenge and the conviction is only conclusive of the fact of the conviction itself, albeit there is a heavy onus on the person seeking to challenge the facts upon which the conviction is necessarily based.
[57] Noting in particular the principles espoused by the Court of Appeal of the Supreme Court of Victoria in Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155.
His Honour’s judgment was considered and upheld on appeal to the Full Court in HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 where McKerracher J stated [at 77]:
As a matter of policy, it would be highly undesirable if [the] Minister or the Tribunal exercising a decision-making power that is founded on an earlier decision of a criminal court could, in effect, challenge the propriety or correctness of that decision, or reopen findings on which the decision was necessarily based … The adjudgment of guilt, and the determination of the punishment to be imposed as a consequence (including a sentence of imprisonment), fall within the central concept of judicial power. It is inconsistent with this principle at the heart of the separation of powers to suggest that an administrative decision-maker could come to a factual conclusion contrary to that of a court when making an adjudgment and punishment of criminal guilt which is, in turn, the precondition to that administrative decision-maker’s power.

Applying the principles expressed in the authorities and summarised by Bromberg J, and later confirmed by the Full Court on appeal, the Tribunal can consider the entirety of the Applicant’s conduct including the circumstances of the offences. However, with respect to the conviction and sentence upon which the power to cancel the visa is based, the Tribunal cannot go behind the fact of the conviction or sentence or the essential facts on which they are based. With respect to other convictions, there is a ‘heavy onus’ on the applicant where they seek to challenge the facts upon which those convictions are based.
Further, Branson J in Minister for Immigration and Multicultural Affairs v Ali (2000)
106 FCR 313 (Ali) at [43] supported the proposition that the heavy onus an applicant faces in challenging the facts on which a conviction is based will be more easily met where the applicant pleads guilty to an offence. Her Honour limited those comments to a conviction and sentence upon which the power to deport is not based. Her Honour noted:
in my view, the Act should be construed as requiring a decision-maker under s 200 of the Act[58] to treat a conviction and sentence (not being the conviction and sentence upon which the power to deport is based) as strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts to show why they should not be accepted (see Spackman at 635). This heavy onus will, as a matter of logic, be more easily satisfied where the criminal conviction and sentence followed a plea of guilty than where the conviction and sentence follow a contested factual hearing.
(Emphasis added.)
[58] Her Honour was considering an earlier version of the Act, however as s 200 was a precursor to
The Tribunal considers that it is bound by the principles espoused in the authorities and in particular by the decision of the Full Court of the Federal Court in HZCP.
The Tribunal regards that it is not entitled to question the fact of a conviction once it has been determined by a court, however, there is some scope to examine the circumstances surrounding the offending. In Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354, the Federal Court stated that at [358]:
There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set it at nought. That is not to say that the circumstances surrounding the commission of the offence or matters relating to the trial itself cannot be examined by the Tribunal. However such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant’s criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial.
In this case the Applicant offered no evidence to support his assertions that he did not commit offences to which he plead guilty other than the statement of Mr Benfield that indicated his son was asleep by the time he arrived at Mr Benfield’s home after the incident.[59] The Applicant did not offer any evidence in support of his contested versions of events which might discharge the heavy onus which he bears to convince the Tribunal to adopt an alternate version or characterisation of the facts of offences for which he plead guilty and was convicted and sentenced by a court.
[59] A17.
The sentencing court singled out the fact the Applicant’s child was present at the time of the 2019 offences and the impact that exposure may have had on him. The Tribunal considers on the information before it that the Court would not have done so if the Applicant had been maintaining an alternate account of events that the child was asleep or that such an account was supported by the evidence before the Court.
Having regard to all the evidence, the Tribunal is unable to accept the Applicant’s alternate version of events with respect to the 2019 convictions as credible, even to the limited extent it is open to the Tribunal to do so. This is because the evidence falls well short of discharging the ‘heavy onus’ which falls on an applicant seeking to challenge the facts upon which a conviction is based.
Further, as raised with the Applicant at the hearing, the Applicant’s denial of the facts of the 2022 and 2019 convictions gave rise to a concern for the Tribunal both with regard to his credibility as a witness but also to the genuineness of the remorse he expressed for his offending behaviour and his acceptance of responsibility for those acts and their consequences.
The seriousness of the Applicant’s conduct and offending is considered further below.
Protection of the Australian Community
The first primary consideration, paragraph 8.1(1), focuses on the protection of the Australian community. Direction No 99 requires decision-makers to keep in mind 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. In this respect, the Tribunal is directed to have particular regard to the principle that entering or 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.[60]
[60] See also Direction No 99 para 8(1).
Paragraph 8.1(2) of Direction No 99 then provides that decision-makers should also 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.
As noted earlier, the Applicant submitted there were mitigating factors to his offending including that he was under the influence of alcohol, had been suffering from undiagnosed mental health issues and was abused as a child.[61] It was also submitted that he did not intend to harm his victims and that offences involving Ms A arose in the context of a mutually combative relationship. It was submitted that he had undertaken rehabilitation and was committed to not reoffending so he could support his children. He has prosocial supports and a plan for employment and relocation to another city to avoid conflict with Ms A. He had been assessed by a forensic clinical psychologist to present a low to moderate risk of reoffending which, in light of his rehabilitation efforts, should be considered to be a low risk.[62]
[61] ASFIC, page 3.
[62] R1, pages 157-158; ASFIC pages 8-13.
The Respondent submitted that the Applicant’s offending was very serious having regard his multiple convictions for assaults against his partner, her family members and police. His offending against his partner was habitual and escalated in seriousness. The Respondent submitted that the nature of the harm which would occur if the Applicant reoffended included serious physical, financial and psychological harm. While the Applicant had undertaken some rehabilitation this was untested in the community and prior custodial sentences had not been sufficient to deter reoffending. There was also evidence of incidents in detention which called into question his claimed rehabilitation. The Applicant posed an unacceptable risk of re-offending and the protection of the community weighed heavily against revocation. [63]
[63] RSFIC, pages 4-8.
Nature and seriousness of the conduct
In considering the nature and seriousness of the Applicant’s criminal offending and other conduct to date, paragraph 8.1.1(1) of Direction No 99 provides that the Tribunal must have regard to:[64]
[64] See also Direction No 99 para 8.1(2)(a).
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i. violent and/or sexual crimes;
ii.crimes of a violent nature against women or children, regardless of the sentence imposed;
iii.acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
i. causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii. crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
iii. any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
iv. where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
h) where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Applicant’s offences are detailed above and in Attachment A.
He has been convicted of nine violence related offences, including a number of them against his former partners and two against his parents-in-law. His father-in-law was 70 at the time.
The Applicant accepted his offending was serious but contended that mitigating factors explained or impacted the assessment of the nature of the offending.[65] The Respondent contended that applying Direction No 99, the Applicant’s offending must be viewed as very serious.[66]
[65] ASFIC, pages 3-4.
[66] RSFIC, page 6
In sentencing the Applicant, the court reflected on the very serious nature of the assault, noting[67]
This is, we’ve pointed out, is a very serious assault, attacking that lady with a bottle, and it seems in circumstances where you may well have been separated at the time. You appear to have been living el+sewhere. It is not the first time you’ve attacked her. ……
I see you’ve previously assaulted police. You’ve also breached the domestic violence order previously.
[67] R1, page 53.
The Applicant contended before the Tribunal that Ms A had been holding the bottle and that she was hit with it as he tried to take it away from her. He denied punching Ms A. In the Tribunal’s view that is not consistent with the facts on which the conviction and sentence was based. As noted above, the Tribunal does not consider that it can go behind the facts on which the Aggravated Assault conviction and sentence in 2022 was based. The Court found the Applicant had assaulted Ms A with a bottle. The transcript of sentencing records the Applicant accepted he had also punched Ms A and that he did so out of jealousy and anger and while heavily intoxicated and that it was not the first time he had offended against Ms A. This offending was objectively very serious.
With respect to the earlier convictions in 2019, in sentencing the Applicant the Court observed that the worst of these offences was the assault against Ms A’s father, noting:[68]
The incident I’m dealing with is a really lamentable one. One which has left [Ms A], your partner, very scared of you, or at least she certainly was at the time she wrote the victim impact statement. Scared and worried about how she is to live a life, considering what she fears from you at any time. As is almost always the case in matters of violence that come before this court, alcohol was involved. You had been drinking, so had she. And, as a result of some intemperate telephone calls, her parents were worried enough to go around to your house. And, it was upon their arrival that events seem to have gone completely out of control. And, they went out of control because you lost control of yourself.
You must understand [HWGF] that I can’t myself really sympathise with your concerns about whatever it was that caused you to get angry in the first place. Nor, can I really excuse your conduct being motivated by it seems some frustration, outrage, anger, worry perhaps, on your part about what you believed to be your partner’s use of drugs. The point was that you seemed to have been really, completely out of control, particularly when it came to your dealings with [Ms A’s father], whom you pushed around the place hard enough for him to bang up against various bits of furniture and fittings, leaving the injuries that have shown on the photographs that have been tendered before me, before dragging him distance through the house, banging him in the process – semi-accidentally I suppose, against the doorframe with a view to showing him more evidence of his daughter’s drug use.
That would be bad enough if you and [Ms A’s father] were fairly matched, but he’s by no means a young man. He was 70 at the time of this event. He’s been in court last week and this week. He looks like a pretty sprite 70-year-old, if I can say so. Good luck to him. But, no one at that age is capable of matching it with an apparently robust, much younger man, like yourself. And, it’s not surprising that you were able to push him around, drag him around and generally bash him and bang him around the place in the way that you did. I don’t think there was any particular desire on your part to cause any injury to [Ms A’s father], you were just completely indifferent to his physical independence and wellbeing, as you displayed your anger, frustration and whatever it was to do with his daughter, your partner.
[68] R1, pages 58-59.
The Court went on to note the assaults against Ms A and her mother on this occasion were at the lower end of the spectrum but that another aspect of the case which made it worse in the Court’s view as that the assaults occurred in the presence of a small child, the Applicant’s son.[69]
[69] R1, page 3.
The Court noted:[70]
The child is no doubt too small to understand exactly quite what is going on. But, all of us – perhaps not everybody in the community. But, all of us who are in the business are coming to understand, through evidence from psychologists that we hear from time to time and from our readings, that it is precisely the experience of this sort of thing which plays a part in the transmission of violent behaviour down the generations. Because children, even infants, who are exposed to violence, noise and carrying on of this sort, develop differently. And, their brains develop differently from children who are let up in - brought up in, generally, peaceful and supporting environments. And, the changes that occur to children and the changes that occur to their brains as a result of being exposed to this sort of conduct is something that can’t be fixed up in a physical level. Sometimes it can be changed and almost erased by careful psychological treatment.
But, it does leave it’s mark in many cases. And the sad, miserable, fact is that many children exposed to this sort of violence grow up to be children who are on heir [sic] triggers themselves and prone to becoming violent in a similar fashion to the offenders they have witnessed, even if they don’t remember what they witnessed when they were young. So, that’s something that everybody in the world should be careful of, and that is blowing your top when small children are around to be adversely influenced by this sort of thing. They’re not – the child is not put as a victim as these assaults. I’m treating them as assaults on there [sic] merits of the three victims who are named. But, it’s a circumstance which offers even less excuse for your conduct and just the ordinary frustration of an angry, somewhat drunken, husband would.
[70] R1, page 59.
The Court noted that the Applicant had previously complied with suspended sentences although he eventually reoffended ‘in a violent fashion’. On this basis the Applicant was granted a partly suspended sentence.
The Tribunal did not accept that the Applicant’s evidence regarding the 2019 convictions was sufficient to discharge the heavy onus of establishing grounds to challenge the account to the offences which was included in the statement of facts, on which the Court based its sentencing remarks. This included that the Applicant’s child was present and crying when his mother and grandparents were assaulted. The Tribunal considered these offences were serious.
The Applicant had also been convicted of an assault against Ms A at a Centrelink office in 2016. Offences against police were also committed at that time. In sentencing the Applicant, the Court noted:[71]
You’re now getting into serious trouble with a seriously bad record of belligerence and violence. The police should not have to put up with truculent and belligerent, and angry young people like yourself. They’ve got a job to do. And, your behaviour at Centrelink, in public, must have been terrifying to the people involved. You haven’t taken advantage of the various lessons sought to be taught to you over the past few years by this court. And, it’s as well that you’ve spent some months in gaol.
But, I do take into account your guilty pleas and your attempts at rehabilitation…..
You come back again for violence, especially in the next two years, you will have the rest of that sentence to serve. And, I’ve got no doubt you’ll be going to gaol for longer and longer periods. Learn to deal with your anger sir.
[71] R1, page 70.
The earliest recorded assault was that against his former partner, Ms K. That offence occurred in 2013. That event resulted in convictions for Aggravated Assault, Assault Female and Resist police in execution of duty.[72] No sentencing remarks were available for that offence however a statement of material facts was before the Tribunal.[73] Those facts indicated the Applicant had assaulted Ms K and another woman during a disagreement at their home. They had been drinking and became intoxicated. Ms K had her head pushed into a closet with force and later pushed her face into a chair making it hard for her to breathe. Later when the other female tried to intervene the Applicant placed his hands on her face and neck causing her pain and pushing her causing her to hit her head on a wall and fall to the ground. The Applicant armed himself with knives from the kitchen and claimed he would harm himself. When police arrived, the Applicant fled and refused to comply with police orders to stop. When apprehended he resisted attempts to take him into custody.[74] The Tribunal regarded these prior convictions also to be serious.
[72] R2, page 284. The Tribunal notes the Respondent’s questioning with respect to this offence appeared to proceed on the basis that the Applicant had been convicted of assaulting police on this occasion. However, records indicated that offence was in 2016 and the conviction in 2013 was for resisting police.
[73] R2, pages 244-249.
[74] R2, pages 245-249.

In the Tribunal’s view there can be no doubt that the Applicant’s offending comes within the types of crimes or conduct that Direction No 99 states should be “viewed very seriously”.[75] He has committed aggravated assaults involving physical violence against his female de facto partner.[76] He was also convicted of assault against a previous de facto partner in 2013. The Tribunal considers the repeated and frequent nature of the Applicant’s offences and the repeated failure of the Applicant to abide by the conditions of DVOs put in place to protect his former partner from further harm, or from an escalation of harm, contribute to the overall assessment of that conduct and offending as being very serious.
[75] Paragraph 8.1.1(1)(a)(iii) of Direction No 99.
[76] Direction No 99, para 8.1.1(1)(a).
He has also been convicted of offences against police, including assault, and of having committed aggravated assault against a 70-year-old man. Applying Direction No 99, these are serious offences.[77]
[77] Direction No 99, para 8.1.1(1)(b).
Further, while the Tribunal considers the Applicant’s traffic, property and drug offences to be relatively minor, it does not consider such offending to be trivial. .However, it does not consider that those offences add to the overall assessment of the Applicant’s conduct or offending as being very serious, based on the information before the Tribunal.
Considering the sentences imposed by the Courts,[78] while the Applicant initially received fines, disqualification and community-based orders for his offences, his repeated offending resulted in him receiving a sentence of imprisonment of 14 months for the most recent Aggravated Assault against Ms A.
[78] Paragraph 8.1.1(1)(c) of Direction No 99.
In the Tribunal’s view, the imposition of a custodial sentence in the Applicant’s case indicates that his offending was serious. Sentences of imprisonment are the last resort in the sentencing hierarchy.[79] This was evidence in the Court’s repeated efforts to provide the Applicant with an opportunity to rehabilitate in the community through suspended sentences. In the Tribunal’s view, the sentencing of the Applicant to imprisonment indicates that the Court regarded the offending as being serious enough to warrant a custodial sentence and reflects the Applicant’s persistent return to violent offending.
[79] RSFIC at [29.3]; PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22].
Considering whether there is any trend of increasing seriousness,[80] the Applicant’s family violence offending has been frequent and persistent. While he has managed not to reoffend while on suspended sentences, he has breached DVOs and breached bail. He has persistently returned to violent offending. In the Tribunal’s view, there is a trend of increasing seriousness in his family violence offences due to their repeat nature, reflected in sentences of imprisonment.
[80] Paragraph 8.1.1(1)(d) of Direction No 99.
There is a cumulative effect of repeat offending given the number of family violence offences, numerous court attendances, and the sentence of imprisonment imposed. Such repeat offending, in contravention of orders designed to prevent such behaviour, imposes a burden on the resources of police, the courts, and corrective services.[81] It also no doubt impacts on the victims of such offending who are the subject of repeated assaults over a number of years. This was noted in the courts comments regarding Ms A concerning the 2019 convictions.
[81] Paragraph 8.1.1(1)(e) of Direction No 99.
There was evidence before the Tribunal that the Applicant had been involved in an altercation at the detention centre and that he had passed contraband to another detainee.[82] Given no charges were laid in relation to these allegations and the Applicant denies wrongdoing the Tribunal does not place significant weight on them in assessing the overall seriousness of the Applicant’s conduct.[83] There was also evidence of the Applicant having been of good behaviour and invited to a detention BBQ.[84] The Tribunal does not consider that the Applicant’s behaviour in detention contributes to the overall assessment of his conduct and offending as very serious.
[82] R1, pages 73-85.
[83] R1, pages 215-216.
[84] A20.
The Tribunal notes there is no information before it that the Applicant had previously received any formal or other written warnings that further offending may affect his migration status. There is no evidence that other parts of paragraph 8.1.1(1) are relevant to the assessment of the nature and serious of the Applicant’s conduct or offending.
In summary, although some of the Applicant’s offences, when viewed individually, can be regarded as being on the lower end of the scale, he has committed repeated violent offences, including family violence offences and breaches of orders made by the Courts. The Applicant’s offending and conduct is frequent, violent and there is a trend of increasing seriousness resulting in his imprisonment. The Tribunal regards his offending history as very serious.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal must also consider the risk to the Australian community (including individuals, groups or institutions) should the Applicant commit further offences. In considering the need to protect the Australian community from harm, paragraph 8.1.2(1) of Direction No 99 requires the Tribunal to have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. It directs that some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.[85]
[85] Direction No 99 para 8.1.2(1).
Paragraph 8.1.2(2) relevantly provides that in assessing the risk that may be posed by the non-citizen to the Australian community, the Tribunal 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:
i. information and evidence on the risk of the noncitizen re-offending; and
ii. 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). …
This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[86] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[87]
[86] Direction No 99 para 8.1.2(2)(a).
[87] Direction No 99 para 8.1.2(2)(b).
There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[88]
[88] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, at [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, at [41] per Kenny J.
The Applicant submitted that he has learnt his lesson and regrets the offending. He has undertaken rehabilitation courses including for substance abuse and family violence. He plans to move to Brisbane to avoid the risk of conflict with Ms A. He has an offer of employment as a scaffolder with his previous employer and the support of his family in Brisbane. He has been assessed by a forensic psychologist to present a low to moderate risk of reoffending.[89]
[89] ASFIX, pages 10-13; R1, pages 158-160.
The Respondent submitted that while the Applicant has made efforts at rehabilitation this is untested in the community. Further, regardless of the impact of rehabilitation given the harm which would be caused if the Applicant were to reoffend, a low to moderate risk of reoffending is unacceptable.[90]
[90] RSFIC, pages 6-8.
Nature of the harm
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals or the Australian community should the Applicant reoffend.[91]
[91] Direction No 99 para 8.1.2(2)(a).
The Applicant has engaged in repeated instances of violent offending against his former partner and her family members, including breaching orders put in place for her protection. He has committed assaults against two previous partners. While some of these offences individually were at the lower end of the scale others were serious and involved weapons, including a bottle. Several of the offences were committed against women and two against older members of the community. The Respondent also referred to the comments of the Tribunal regarding the impacts of gender-based and family violence in XFKR and Minister for Immigration and Border Protection (Migration) [2017] AATA 2385, from [44].
The Tribunal considers that were the Applicant to reoffend against Ms A or a current or future partner psychological and physical harm to the victim or their family members, including children, would result. In that regard, the Tribunal notes the observations of the sentencing judge regarding the impact of exposure to family violence on children.[92]
[92] R1, page 59.
Further, the Australian community would bear the financial and resourcing costs of repeated police and court interventions caused by repeated offending. The Tribunal considers the cumulative harm caused by such offending to be serious.
The Applicant has also committed illicit drug related, driving and property offending. While the Tribunal considers those offences were at the lower end seriousness, they did include driving without a licence and driving of an unregistered vehicle. Driving while unlicenced or in an unlicenced vehicle carries risks to road users of accidents and has financial implications for those impacted by traffic accidents. The nature of the harm that would be caused to road uses includes potential injury and financial loss.
The nature of the harm if the Applicant were to commit further drug possession offences is varied. Purchasing and possessing drugs supports the illicit drug trade in the Australian community. The prevalence of drugs in the community causes harm to the community on many levels, including drug related crimes as well as mental and other health issues for drug users.
The nature of the harm which would be caused by further property offending includes the costs of repairs and replacement for victims whose property is damaged or destroyed.
The Applicant has also been convicted of several offences against police in the course of their duties. This included an assault on police, disorderly behaviour in a police station (on two separate occasions) and resisting police. As noted by the sentencing magistrate in the 2016 offences,[93] such behaviour interferes with the work of police. Importantly, it places them at an increased risk of harm in the discharge of their duties. If this offending was repeated it would cause harm in the form of interference with the discharge of duties by police engaged in law enforcement and community protection and place officers at risk of physical and psychological injury.
[93] R1, page 70.
Overall, the Tribunal considers the nature of the harm to victims, the community and the police which would be caused if the Applicant were to reoffend to be very serious.
Likelihood of the non-citizen engaging in further criminal or serious conduct
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must also consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community.[94]
[94] Direction No 99 para 8.1.2(2)(b).
The Respondent contends that there remains an ongoing and unacceptable risk of the Applicant reoffending and that given the violent nature of his offending, the risk is unacceptable. The Respondent submitted that despite the fact the Applicant is no longer in a relationship with Ms A there is a risk of violence to a current or future partner. This is consistent with the observations of the expert report of Mr Hamilton.[95]
[95] Transcript, pages 106-107.
The Applicant testified that he regretted his offending, had attempted rehabilitation and had put in place plans to avoid reoffending in the future. He relied on Mr Hamilton’s report as evidence of a low to moderate risk of reoffending and he submitted that risk was principally with respect to Ms A and as such would be considered to be low when the Applicant’s plans to move away from Darwin to Brisbane.[96]
[96] ASFIC, pages 13-14; R1, pages 158-160.
Although there was limited information before the Tribunal regarding programs undertaken in prison, the Tribunal accepts the Applicant may have undertaken some rehabilitation programs there, as these were referred to in the sentencing hearing transcript and the Applicant has consistently maintained that he undertook or attempted to undertake courses and spoke to a counsellor.[97] There was evidence he had completed some voluntary online courses in detention including a ‘Men’s Referral Service’ program which addresses family violence.[98]
[97] R1, page 51; Transcript, pages 27, 45; ASFIC, pages 10-11.
[98] A11, A 15.
By his own admission the Applicant’s offending was associated with drug and, in particular alcohol use. He maintains he has not consumed drugs or alcohol while in prison or detention.[99] The Tribunal considers that given his efforts of rehabilitation have not been tested in the community. there remains a risk of the Applicant using alcohol in the community and of him reoffending in a similar manner associated with alcohol consumption if he does not maintain his commitment to remain sober and continue with counselling and support
[99] R1, page 125; Transcript, pages 54-55.
The Applicant offered the report of a forensic psychologist, Mr Hamilton, in support of his application and his submissions that he presented a low to moderate risk of reoffending.[100]
[100] R1, pages 199-216.
Mr Hamilton’s report notes the Applicant’s childhood trauma including sexual abuse by a family member in the DRC (hitherto undisclosed) and flight from the DRC with his mother and siblings.[101] He noted the history of substance abuse and relationship issues. He noted he presented as ‘industrious, hardworking’.[102] He noted the Applicant was physically in good health and that he had limited psychological interventions for trauma and had depressive and anxiety symptoms. He noted he had commenced antidepressant medication in detention.[103]
[101] R1, page 203.
[102] R1, pages 204-206.
[103] R1, page 207.
With respect to his account of the family violence offending Mr Hamilton noted the Applicant acknowledged but was ‘prone to contextualise and explain the behaviour’. Going on to note:[104]
[The Applicant] accepted that many of his instances of domestic violence occurred in the context of him disagreeing with [Ms A’s] behaviour, and his attempts to intercede and or control her actions. Regardless of his underlying ‘good intentions’ in the various situations, he accepted that he had anger issues and he had attempted to override [Ms A’s] autonomy in decision making.
[104] R1, page 209.
Earlier in the report Mr Hamilton notes the Applicant:[105]
He acknowledged his faults and wrongdoing, yet on his account his domestically violent offending was more akin to situational violence or a mutually combative relationship, rather than ‘classic dv’ and or coercive control. He noted early on in their relationship, he had tried to adopt the ‘role’ he thought he was responsible for, i.e. working hard and earning an income yet he believed [Ms A] struggled with what he perceived ‘her role’ was.
[105] R1 page 208.
The Tribunal understood those comments in the context of those provided later to be highlighting the Applicant’s attempts to contextualise his violent responses to relationship stressors.
The Tribunal notes there was no reference in Mr Hamilton’s report to the 2013 offences being committed against a prior partner. Nor was there any evidence Mr Hamilton was aware of the context of those offences. In the absence of Mr Hamilton being available for questioning the Tribunal infers he was not aware those offences were committed against the Applicant’s then de facto partner. It is not clear whether this would have impacted his assessment of risk however the Tribunal considers it is unlikely it would have altered the range of risk of reoffending (being low to moderate).
As noted earlier, Mr Hamilton was unavailable for questions which was unfortunate. However, the Respondent accepted the report as an assessment of risk though it challenged the Applicant’s interpretation of the report including with respect to the risk of family violence being limited to a relationship with Ms A. The Tribunal considers that challenge was properly made and that read fairly, Mr Hamilton’s report indicates the greatest risk is with respect to the stressors of a relationship ‘most likely with [Ms A]’. In the Tribunal’s view this reflected the fact the Applicant had not ruled out the prospect of reconciliation with Ms A at the time the report was prepared.[106] It did not mean that the risk of reoffending was limited to Ms A.
[106] R1, page 205.
Mr Hamilton assessed that the Applicant:[107]
is assessed as low / moderate with respect to his risk and treatment need profile. His risk would be contained to its lowest level, in the context of substance abstinence or appropriate consumption, and whilst behaving in a manner that is supportive to the mother of his two sons. His risk is further ameliorated via constructively using time via gainful employment or appropriate leisure activities, and spending time with pro social peers and family. Outside of these areas and strategies, there are no further recommendations to ameliorate his risk(s).
[The Applicant’s] offending history is almost entirely encapsulated to domestic violent offences, in what could at best be described as a chaotic and difficult relationship, or those motivated by substance misuse. There are a few property and driving related exceptions. [The Applicant] does not present with pervasive antisociality. Rather, he presents with a strong work ethic and desire to improve himself and achieve stability for the betterment of himself and provision of care and support to his sons. With specific regard to his domestic violence offences, though there is some tendency to account for or explain his actions, he does not present with gross minimisation and accepts responsibility. He provides a clear account of his abusive behaviours, and history of issues with substances and anger. When he describes his offences, he errs toward contextualising as mutually combative, or at the least antagonistic and situationally motivated. Regardless, in terms of scenario planning and risk mitigation, this represents the most likely scenario in which further offending would occur. That is, in the context of a relapse to substance misuse, and or associated stressors in an intimate relationship, most likely with [Ms A], [the Applicant] would be heightened risk of further offending.
With regard to protective factors, despite his criminal history and repeated offences, including those of an assaultive nature, [The Applicant] does not present with a pervasive attitude that is supportive of crime. This is a significant strength and protective factor. He does not present with an attitude that is unfavourable to convention, nor does he have an attitude that is poor toward his sentence and or supervision and treatment. If [the Applicant] is able to address his substance misuse over the longer term, which appears at least to some extent to be underpinned by his trauma experience(s) and emotional dysregulation, therefore warranting support and intervention, he will be better positioned to engage in positive and respectful future relationships, including those of an intimate nature. With regard to protective factors, despite his criminal history and repeated offences including those of an assaultive nature, [the Applicant] does not present with pervasive attitude that is supportive of crime. This is a significant strength and protective factor. He does not present with an attitude that is unfavourable to convention, nor does he have an attitude that is poor toward his sentence and of supervision and treatment. If [the Applicant] is able to address his substance misuse over the longer term, which appears at least to some extent to be underpinned by his trauma experience(s) and emotional dysregulation, therefore warranting support and intervention, he will be better positioned to engage in positive and respectful future relationships, including those of an intimate nature.
[107] R1 page 212.

The Tribunal accepts that a non-citizen whose visa has been cancelled because of criminal offending may not be granted a protection visa because he or she will be a danger to the community, having been convicted by final judgment of a particularly serious crime or be refused under s 501. In the Applicant’s case, there may also be delays associated with documentation to allow any return to the DRC in the event a protection finding is not made with respect to him or he does not apply for a protection visa.. Given this, the Tribunal has also had regard to the fact that the Applicant may be the subject of prolonged detention, initially while his protection claims are assessed if the Cancellation Decision is not revoked.
In this regard the Tribunal notes the Applicant suffers from mental health issues which Mr Hamilton’s report identifies would be likely to deteriorate if he is indefinitely detained.[174] While the evidence suggests the Applicant is accessing support services for mental health while in detention, the Tribunal accepts that prolonged or indefinite detention would cause the Applicant hardship, including significant emotional strain and would separate him from his family on an ongoing basis. This would case him and his family members financial and emotional hardship. The Tribunal places weight on this factor in the Applicant’s favour.
[174] R1, pages 212-213.
Conclusion on legal consequences
On the basis of the evidence before it, the Tribunal is satisfied that an issue of non-refoulement obligations arises for consideration with respect to the Applicant’s return to the DRC in the event that the Cancellation Decision is not revoked. However, given the limited evidence before it, the Tribunal considers that it is preferable to defer a determination of whether the Applicant meets the criteria for protection for consideration in the context of a protection visa application, should the Applicant choose to make such an application (which he testified he would).
However, the Tribunal accepts that the process of applying for a protection visa or conducting an ITOA may take some time during which the Applicant is likely to remain detained and would suffer significant hardship. The Tribunal gives some weight to this consideration and finds the consideration overall weighs moderately in favour of revocation.
Extent of impediments if removed
Paragraph 9.2 of Direction No 99 provides that taking into account the matters identified in sub-paragraphs 9.2(1)(a), (b) and (c) of Direction No 99, the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of the basic living standards available to other citizens of the DRC The matters identified under sub-paragraphs 9.2(1)(a), (b) and (c) are:
·the Applicant’s age and health;
·whether there are substantial language or cultural barriers; and
·any social, medical and/or economic support available to the Applicant in their country.
The Applicant was born in the DRC. On his personal circumstances form he did not indicate a current citizenship, however he indicated that his family members are DRC nationals and have become Australian citizens.[175] While the Applicant claimed not to have any identity documentation to confirm citizenship of the DRC there was no information before the Tribunal to suggest he is not a citizen of the DRC. He confirmed his mother obtained Australian citizenship on the basis of an Australian travel document indicating she was a DRC national. She confirmed this in evidence.[176] The Tribunal has proceeded on the basis the Applicant is a citizen of the DRC however the Tribunal accepts his citizenship entitlements and documentation would need to be resolved and that this may take some time, during which he would be liable to remain detained if he did not hold a visa.
[175] R1, pages 131, 139.
[176] Transcript pages 90-91.
As noted above, the Applicant was born in the DRC. He left DRC as a child with his mother and siblings. He speaks Swahili (Congolese) and a small amount of French. He claims he has no family members remaining in DRC with whom he is in contact. He indicated he as some family members living as refugees in surrounding countries.
The Tribunal accepts that while the Applicant would not face substantial language barriers on return to DRC he would likely face cultural barriers given he left the country at a relatively young age and has not left Australia since arriving in 2006. While the Tribunal accepts the Applicant does not have identity documentation to confirm his DRC citizenship, there is no information before the Tribunal to suggest he would be unable to obtain documentation or would be denied citizenship were he to apply to the relevant authorities.
The Applicant is 29 years old. In his personal circumstances form, he indicated he takes medication for depression and anxiety. This was supported in Mr Hamilton’s report. He also indicated he takes medication for ‘bad heartburn and reflux’.[177] It was submitted that the Applicant also suffered from Post-Traumatic Stress Disorder (PTSD) however, as discussed with the Applicant’s representative at the hearing, there was no diagnosis of PTSD on the material before the Tribunal and it was not mentioned in Mr Hamilton’s report. In this regard the Tribunal notes Mr Hamilton recorded (in February 2023) that the Applicant was in ‘good physical health’ and had ‘depressive and anxiety symptoms’.[178] The Tribunal accepts that the Applicant has mental health issues including depression and anxiety but does not accept that he has PTSD. On the evidence the Tribunal finds he is in good physical health.
[177] R1, page 142.
[178] R1, pages 206-207.
The Applicant submitted that he has no support in the DRC and will be homeless and destitute if returned there. In support of his contentions, the Applicant submitted the following information from the World Bank:[179]
Most people in DRC have not benefited from this wealth. A long history of conflict, political upheaval and instability, and authoritarian rule have led to a grave, ongoing humanitarian crisis. In addition, there has been forced displacement of populations. These features have not changed significantly since the end of the Congo Wars in 2003.
DRC is among the five poorest nations in the world. In 2021, nearly 64 % of Congolese, just under 60 million people, lived on less than $2.15 a day. About one out of six people living in extreme poverty in SSA lives in DRC.
[179] Democratic Republic of Congo Overview: Development news, research, data | World Bank.
The Applicant also cited UN reports noting that essential healthcare and food are in short supply in the DRC:[180]
The conflict in the DRC is on “such a massive scale,” that the country has the highest number of internally displaced in Africa, a large refugee population of 500,000, and is experiencing multiple crises, including in education, funding and healthcare, said David McLachlan-Karr, UN Resident and Humanitarian Coordinator for DRC.
He added that this had led to “repeated epidemics of cholera, measles and malaria – indicative of weak health system”. Reporting on the humanitarian situation in DRC, the top UN official said it was time to put the country back on the “global map of need”. 26 million food insecure DRC is suffering a “food insecurity crisis with 26.7 million Congolese food insecure,” he pointed out.
Peoples’ “day to day” lives are “precarious, with inadequate nutritional intake,” leaving them in a “weakened condition and prone to disease” he said.
According to the OCHA representative, there is a “protracted protection crisis,” with “interethnic conflict over natural resources in both North and South Kivu and in other eastern provinces” which “require urgent humanitarian assistance; healthcare, food, shelter, water, sanitation, education for populations they are unable to access”.
The funding situation is also “very concerning,” Mr. McLachlan-Karr added. “We are over a quarter funded and it’s a year we’ve really suffered a decrease in funding, leaving us with a stark choice - who to prioritize?”
[180] >
Submissions also noted that the UN Refugee Agency has called for ban on forced returns of asylum-seekers to Eastern DRC, including of asylum-seekers who have had their claims rejected due to attacks on civilians.[181]
[181] UN Refugee Agency calls for ban on forced returns of asylum-seekers to eastern DR Congo | UNHCR Australia.
The Applicant’s submissions regarding the impediments he will face on return to DRC were supported by the evidence of his mother, siblings and Congolese community representatives.[182]
[182] A16.
The Respondent accepted the Applicant would face significant obstacles to establishing himself in the DRC but contended that those impediments were not insurmountable given his relatively young age and good physical health.[183]
[183] RSFIC, page 13.
The Tribunal notes the general economic and security challenges prevailing in the DRC, as detailed in the Applicant’s evidence and relevant country information and accepts that the circumstances in the DRC will present significant challenges for the Applicant returning there. The Tribunal considers the Applicant’s age and work experience in a variety of sectors may assist him to achieve basic living standards in the context of standards available to other citizens of the DRC but accepts that his lack of experience on the ground in the DRC will make this process extremely challenging given the economic and security situation in that country.
The Tribunal also considers that the Applicant’s mental health issues will be likely to continue or be exacerbated by the stressors of return to the DRC. Mr Hamilton’s report notes that the Applicant has had limited mental health interventions to deal with past trauma and that he would benefit from further therapeutic intervention in this regard.[184] Mr Hamilton noted the Applicant was fearful of returning to the DRC. The Tribunal accepts that the Applicant will find it more difficult to manage his mental health without clinical support which he is unlikely to be able to access in the DRC.
[184] R1, pages 206, 213.
The Tribunal considers the Applicant will face a range of impediments on return to the DRC. The most significant of these will be establishing himself and providing for his basic living standards and managing his mental health issues.
The Tribunal considers the economic and security situation in the DRC will present a significant impediment if the Applicant is removed to the DRC, particularly given a lack of contacts and family support and his history of mental health issues Given the Applicant’s lack of familiarity with the country and lack of family support there the impediments to his return may prevent him maintaining basic living standards even having regard to those available to citizens of the DRC.
Having considered the extent of the impediments if the Applicant is removed to the DRC, Tribunal affords this consideration strong weight in favour of revoking the Cancellation Decision.
Impact on victims
Paragraph 9.3 of Direction No 99 states:
(1)Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
As noted above, Ms A was a victim of the Applicant’s offending and provided a statement to the Department in support of the request for revocation. [185]
[185] R1, pages 178-179.
The Respondent submitted that as the relationship has now ended there is no reliable evidence before the Tribunal on the impact of the decision which would engage this consideration and accordingly it should be afforded neutral weight.[186]
[186] RSFIC, page 13.
The Applicant submitted that Ms A’s statement provides evidence of her views and the impact a decision not to revoke the visa (a decision under section 501CA) would have on her.[187]
[187] ASFIC, page 22’ R1, page 21.
While the Tribunal acknowledges the relationship has ceased since the statement was provided by Ms A in November 2022, taking the statement as a whole the Tribunal considers the views expressed are, largely, not contingent on their being an ongoing partner relationship between Ms A and the Applicant. Ms A’s views as expressed focus significantly on Ms A’s responsibility for caring for the children in the absence of financial and co-parenting support from the Applicant if the visa remains cancelled and he remains detained or is removed.
As noted above, Ms A states that she will be negatively impacted if the Applicant’s visa cancellation is not revoked as she needs his financial support for raising the children. She also notes her own mental health challenges and her need to the Applicant’s support with the children to manage her own stress and depression.
While there was no medical evidence with respect to mental health issues suffered by Ms A, there were consistent references to such issues in the material before the Tribunal and the Tribunal accepts Ms A’s statement that she struggles because of mental health issues. The Tribunal also accepts that she would be negatively impacted if the cancellation is not revoked having regard to the impact this will have on the Applicant’s capacity to provide financial support to her and any assistance with supporting the emotional and physical care of the children.
While there remains a risk of family violence from future interactions between Ms A and the Applicant, as noted in Mr Hamilton’s report, Ms A is protected by a non-contact order through January 2025 and the Applicant plans to live in Brisbane to manage the risks of living in Darwin near Ms A.
There is no information before the Tribunal regarding the impact of the decision on any other victims of the Applicant’s offending or on other members of the Australian community outside those impacts considered elsewhere in this decision.
On balance the Tribunal considers the decision not to revoke the cancellation of the Applicant’s visa would negatively impact Ms A and that this consideration weighs moderately in favour of revoking the cancellation of the visa.
Impact on Australian business interests
Paragraph 9.4 of Direction No 99 states:
(1)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There was no information before the Tribunal regarding the impact of the decision on Australian business interests.
Having regard to the information before it the Tribunal considers this consideration weighs neutrally in the Applicant’s case.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Migration Act.
The Tribunal has therefore considered whether there is ‘another reason’ why the Cancellation Decision should be revoked, having regard to the primary and relevant other considerations in Direction No 99.
Paragraph 7 of Direction 99 sets out the way in which the relevant considerations are to be taken into account and weighed.
The Tribunal has considered the primary and other relevant considerations on the evidence before it. In determining the weight to be applied to each consideration, the Tribunal has had regard to the Applicant’s offending history and personal circumstances, including the circumstances of his family members in Australia. The Tribunal has considered all the primary and other relevant considerations and weighed them in light of the evidence and findings and according to the guidance provided by Direction No 99.
The Tribunal has considered all of the primary considerations, including protection of the Australian community. The Tribunal has found that the nature of the Applicant’s offending was very serious, in particular having regard to the violent nature of some of that offending, including family violence, and the repeated nature of the offending. The Tribunal had concerns about the Applicant’s insight into his offending given attempts to minimise or deny responsibility for offences for which he had plead guilty and been convicted and sentenced. The Tribunal has had regard to the risk of serious harm to the community should he reoffend and the likelihood of reoffending. The Tribunal also had regard to the evidence regarding the Applicant’s risk of reoffending, including the forensic psychologist’s assessment that the Applicant presents a low to moderate risk of reoffending and that he did not present with pervasive antisociality. Considering all the factors outlined above, the Tribunal has found that this consideration weighs strongly against the Cancellation Decision being revoked.
Having regard to the consideration relating to family violence, the Tribunal has found this consideration also weighed strongly against the Cancellation Decision being revoked having regard to the repeated nature of the family violence offending against two partners.
With regard to nature and duration of ties to the Australian community, the Tribunal found that the Applicant has very close ties to Australia, principally through his family members, including his children, and having lived in Australia since a young age. The Tribunal accepted the Applicant considers Australia to be his home and that he and his immediate family members will suffer emotional and financial hardship if he is removed. Overall, the Tribunal found that the Applicant’s ties to Australia weigh strongly in favour of the revocation of the Cancellation Decision.
The Tribunal found the best interests of the children identified as being impacted by the decision was, to varying degrees, that the visa cancellation be revoked. While for most of the children who do not have a parental relationship with the Applicant this consideration was afforded only moderate or slight weight, the Tribunal found the best interest of the Applicant’s young sons weighed strongly in favour of revocation and the consideration overall should be afforded strong weight in favour of revoking the Cancellation Decision.
The Tribunal has found that the expectations of the Australian community would be that the Applicant’s visa remains cancelled. However, the Tribunal considered the community would have greater tolerance for the Applicant’s offending given the fact that he settled in Australia as a young child. However, that tolerance would be lessened given the Applicant’s repeated violent offending. Having regard to all of the principles articulated in Direction No 99 and the Applicant’s circumstances, the Tribunal found this consideration also weighed strongly against revocation of the Cancellation Decision.
The Tribunal has had regard to the relevant other considerations, including the legal consequences of the decision and the impediments the Applicant faces if removed to the DRC.
The Tribunal considered the legal consequences of the decision including the representations made with respect to claimed non-refoulment obligations arising with respect to the Applicant’s return to DRC. The Tribunal accepted the Applicant’s return to the DRC would raise potential issues of non-refoulement which would require further consideration in a protection visa application process or thorough an International Treaty Obligations Assessment (ITOA) prior to his removal. However, the Tribunal considered there was very limited evidence before it with respect to the nature of those claims and that there were inconsistencies in the information before the Tribunal which were unable to be properly tested in the proceedings it. There was also limited country information going to the matters raised by the Applicant including a risk of political persecution in the DRC due to his family’s profile. Having regard to the nature of the claims made and the evidence before it and noting it was open to the Applicant to make an application for a protection visa, the Tribunal considered it appropriate to defer findings with respect to any claims for protection to a protection visa application process. The Tribunal accepted that the Applicant may face a period of prolonged detention with no fixed end point while any protection claims are finally determined and issues of documentation for the DRC are resolved. The Tribunal accepted that prolonged detention would have an adverse impact on the Applicant’s mental health and the well-being and financial circumstances of his family members. The Tribunal afforded this consideration moderate weight in favour of revoking the visa cancellation.

The Tribunal considered the extent of the impediments if the Applicant is removed to the DRC and found that the economic and security situation in the DRC will present a significant impediment, particularly the given a lack of contacts or family support the Applicant has in the DRC and his history of mental health issues. The Tribunal afforded this consideration strong weight in favour of revoking the Cancellation Decision.
The Tribunal had regard to the impact that revocation of the Cancellation Decision would have on the victims of the Applicant’s offending. The Tribunal found that Ms A would be negatively impacted by his removal primarily due to her responsibility to the couple’s two children and her own personal mental health challenges. The Tribunal considered this consideration weighed moderately in favour of revoking the Cancellation Decision.
The Tribunal considered the impact on Australian business interests weighed neutrally in the Applicant’s circumstances.
In weighing these considerations against one another, the Tribunal considers that although there are strong countervailing considerations weigh against revoking the Cancellation Decision, including the protection of the Australian community, family violence and the expectations of the Australian community, these are outweighed in the Applicant’s case by the primary and other relevant considerations weighing in favour of revoking the Cancellation Decision, namely the best interests of minor children impacted by the decision, the strength nature and duration of the Applicant’s ties to the Australian community, the legal consequences of the decision, the extent of impediments if removed to the DRC and impact of the decision on victims of his offending.
In summary, having regard to all of the primary considerations, and the relevant other considerations in Direction No 99, the Tribunal is satisfied that there is another reason why the Cancellation Decision should be revoked. The correct or preferable decision is to set aside the Non-Revocation Decision and substitute with a decision that the Cancellation Decision be revoked.
DECISION
The decision of the delegate of the Respondent dated 16 May 2023 not to revoke the cancellation of the Applicant’s Class XB Subclass 200 Refugee visa is set aside and substituted with a decision that the cancellation of the visa is revoked under

s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

I certify that the preceding 275 (two hundred and seventy-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member S Burford

.....Sgd.................................
Associate
Dated: 15 August 2023

Dates of hearing: 1 and 2 August 2023

Solicitors for the Applicant: Ms Cindy Zhao, No Borders Law Group

Solicitors for the Respondent: Mr Jon Papalia, the Australian Government Solicitor
ATTACHMENT A
According to the nationally coordinated criminal history ‘Check Results Report’ issued through the Australian Criminal Intelligence Commission on 2 May 2022 and the Northern Territory Police Force ‘Information for Courts’ list dated 10 July 2023, the Applicant’s offending history is as follows:[188]
[188] R1, pages 42-44; R2, pages 281-285.

Conviction Date Court Offence Offence Date(s) Court Result

1.         28 January 2022 Darwin Local Court Aggravated Assault (Harm – M/F – Weapon) 29 June 2021
Convicted – 14 Months Imprisonment, cumulative (non-parole period 8 months)

Backdated 29 June 2021

2.         28 January 2022 Darwin Local Court Possess less than traffickable quantity of Schedule 2 dangerous drug in a public place 29 June 2021
Convicted – Fine $400

3.         28 January 2022 Darwin Local Court Engage in conduct that contravenes DVO 29 June 2021
Convicted – 1 month imprisonment

Backdated 29 June 2021

4.         28 June 2019 Darwin Local Court Assault a female – offender a male 27 April 2018 Convicted – 4 months imprisonment, concurrent (with count 1 (item 6)), Suspended after 3 months, operative for 18 months

5.         28 June 2019 Darwin Local Court Aggravated Assault (Harm – M/F - Defenceless) 27 April 2018 Convicted – 3 months imprisonment, concurrent (with count 1 (item 6))

6.         28 June 2019 Darwin Local Court Aggravated Assault (Harm Defenceless) 27 April 2018
Convicted – 7 Months imprisonment. (Count 1)

Suspended after 3 months, operative for 18 months

Backdated 27 April 2019

7.         20 October 2016 Darwin Local Court Damage to property 6 May 2016 Convicted – 8 months imprisonment, cumulative (with count 1 (item 10)), Suspended, operative for 2 years

8.         20 October 2016 Darwin Local Court Assault a member of the police force 26 June 2016 Convicted – Aggregate with Damage to property

9.         20 October 2016 Darwin Local Court
Aggravated Assault

(Harm – Weapon)
6 May 2016 Convicted – Aggregate with Damage to property

10.       20 October 2016 Darwin Local Court Engage in conduct that contravenes DVO 6 May 2016
Convicted – 1 month imprisonment (Count 1)

Backdated 26 June 2016

11.       20 October 2016 Darwin Local Court Drive unregistered motor vehicle 25 June 2016 Convicted – Fine $800 (count 1)

12.       20 October 2016 Darwin Local Court Drive a motor vehicle while unlicenced 25 June 2016 Convicted – Aggregate with count 1 (item 11)

13.       20 October 2016 Darwin Local Court Drive in a public place without due care 25 June 2016 Convicted – Aggregate with count 1 (item 11)

14.       13 November 2015 Darwin CSJ (Court of Summary Jurisdiction) Aggravated Assault (Harm – M/F) 29 August 2015
Convicted – 3 months imprisonment

Backdated 29 August 2015

15.       12 June 2015 Darwin CSJ Give False/misleading information 5 April 2015 Convicted – Aggregate with Count 1 (item 16)

16.       12 June 2015 Darwin CSJ Exceed speed limit, 1-15 km/h over limit 5 April 2015 Convicted – Fine $600 (Count 1)

17.       12 June 2015 Darwin CSJ Drive a motor vehicle while unlicenced 5 April 2015 Convicted – Aggregate with Count 1 (item 16)

18.       6 August 2014 Darwin CSJ Disorderly behaviour in police station 16 March 2014 Convicted - $400 fine

19.       6 August 2014 Darwin CSJ Damage to property 16 March 2014 Convicted – 20 hours CWO

20.       11 October 2013 Darwin CSJ Resist police in execution of duty 15 February 2013 Convicted - $400 fine

21.       11 October 2013 Darwin CSJ Assault a female – offender a male 14 February 2013 Convicted - $500 fine

22.       11 October 2013 Darwin CSJ Aggravated Assault (Harm – M/F) 14 February 2013 Convicted - $700 fine

23.       11 October 2013 Darwin CSJ Breach of bail 25 February 2013 Convicted - $100 fine

24.       11 October 2013 Darwin CSJ Breach of bail 26 March 2013 Convicted - $100 fine

25.       11 October 2013 Darwin CSJ Breach of bail 6 May 2013 Convicted - $100 fine

26.       11 October 2013 Darwin CSJ Disorderly behaviour in police station 29 September 2013 Convicted - $350 fine

27.       11 October 2013 Darwin CSJ Breach of bail 29 September 2013 Convicted - $250 fine

28.       12 August 2013 Darwin CSJ Brach of bail Bail estreated - $1000 fine

29.       27 August 2012 Darwin CSJ Resist police in execution of duty 27 October 2011 Without proceeding to conviction – proved, $200 fine.

Conviction Date	Court	Offence	Offence Date(s)	Court Result
1.	28 January 2022	Darwin Local Court	Aggravated Assault (Harm – M/F – Weapon)	29 June 2021	Convicted – 14 Months Imprisonment, cumulative (non-parole period 8 months) Backdated 29 June 2021
2.	28 January 2022	Darwin Local Court	Possess less than traffickable quantity of Schedule 2 dangerous drug in a public place	29 June 2021	Convicted – Fine $400
3.	28 January 2022	Darwin Local Court	Engage in conduct that contravenes DVO	29 June 2021	Convicted – 1 month imprisonment Backdated 29 June 2021
4.	28 June 2019	Darwin Local Court	Assault a female – offender a male	27 April 2018	Convicted – 4 months imprisonment, concurrent (with count 1 (item 6)), Suspended after 3 months, operative for 18 months
5.	28 June 2019	Darwin Local Court	Aggravated Assault (Harm – M/F - Defenceless)	27 April 2018	Convicted – 3 months imprisonment, concurrent (with count 1 (item 6))
6.	28 June 2019	Darwin Local Court	Aggravated Assault (Harm Defenceless)	27 April 2018	Convicted – 7 Months imprisonment. (Count 1) Suspended after 3 months, operative for 18 months Backdated 27 April 2019
7.	20 October 2016	Darwin Local Court	Damage to property	6 May 2016	Convicted – 8 months imprisonment, cumulative (with count 1 (item 10)), Suspended, operative for 2 years
8.	20 October 2016	Darwin Local Court	Assault a member of the police force	26 June 2016	Convicted – Aggregate with Damage to property
9.	20 October 2016	Darwin Local Court	Aggravated Assault (Harm – Weapon)	6 May 2016	Convicted – Aggregate with Damage to property
10.	20 October 2016	Darwin Local Court	Engage in conduct that contravenes DVO	6 May 2016	Convicted – 1 month imprisonment (Count 1) Backdated 26 June 2016
11.	20 October 2016	Darwin Local Court	Drive unregistered motor vehicle	25 June 2016	Convicted – Fine $800 (count 1)
12.	20 October 2016	Darwin Local Court	Drive a motor vehicle while unlicenced	25 June 2016	Convicted – Aggregate with count 1 (item 11)
13.	20 October 2016	Darwin Local Court	Drive in a public place without due care	25 June 2016	Convicted – Aggregate with count 1 (item 11)
14.	13 November 2015	Darwin CSJ (Court of Summary Jurisdiction)	Aggravated Assault (Harm – M/F)	29 August 2015	Convicted – 3 months imprisonment Backdated 29 August 2015
15.	12 June 2015	Darwin CSJ	Give False/misleading information	5 April 2015	Convicted – Aggregate with Count 1 (item 16)
16.	12 June 2015	Darwin CSJ	Exceed speed limit, 1-15 km/h over limit	5 April 2015	Convicted – Fine $600 (Count 1)
17.	12 June 2015	Darwin CSJ	Drive a motor vehicle while unlicenced	5 April 2015	Convicted – Aggregate with Count 1 (item 16)
18.	6 August 2014	Darwin CSJ	Disorderly behaviour in police station	16 March 2014	Convicted - $400 fine
19.	6 August 2014	Darwin CSJ	Damage to property	16 March 2014	Convicted – 20 hours CWO
20.	11 October 2013	Darwin CSJ	Resist police in execution of duty	15 February 2013	Convicted - $400 fine
21.	11 October 2013	Darwin CSJ	Assault a female – offender a male	14 February 2013	Convicted - $500 fine
22.	11 October 2013	Darwin CSJ	Aggravated Assault (Harm – M/F)	14 February 2013	Convicted - $700 fine
23.	11 October 2013	Darwin CSJ	Breach of bail	25 February 2013	Convicted - $100 fine
24.	11 October 2013	Darwin CSJ	Breach of bail	26 March 2013	Convicted - $100 fine
25.	11 October 2013	Darwin CSJ	Breach of bail	6 May 2013	Convicted - $100 fine
26.	11 October 2013	Darwin CSJ	Disorderly behaviour in police station	29 September 2013	Convicted - $350 fine
27.	11 October 2013	Darwin CSJ	Breach of bail	29 September 2013	Convicted - $250 fine
28.	12 August 2013	Darwin CSJ	Brach of bail	Bail estreated - $1000 fine
29.	27 August 2012	Darwin CSJ	Resist police in execution of duty	27 October 2011	Without proceeding to conviction – proved, $200 fine.

s 501 her comments are equally applicable to the current application.

Dates of hearing:	1 and 2 August 2023
Solicitors for the Applicant:	Ms Cindy Zhao, No Borders Law Group
Solicitors for the Respondent:	Mr Jon Papalia, the Australian Government Solicitor