Jama and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) - [2024] AATA 1111

Jama and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2024] AATA 1111 (17 May 2024)
Division:GENERAL DIVISION
File Number: 2020/7720
Re:Jamaal Jama
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member D. Cosgrave
Date:17 May 2024
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review and substitutes a decision revoking the original visa cancellation.
...........[SGD].............
Member D. Cosgrave
Catchwords
MIGRATION – Mandatory visa cancellation – New Zealand Citizen – Class TY Subclass 444 Special Category (Temporary) visa – aggravated armed robbery – failure to pass character test – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 99 applied – delegate’s decision set aside and substituted with a decision revoking the original visa cancellation
Legislation
Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Regulations 1994 (Cth)
Cases
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
Bartlett v Minister for Immigration and Border Protection [2017] AATA 1561
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
Bushell v Repatriation Commission (1992) 175 CLR 408
Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588
Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870
Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78
EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173
Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56
Garland v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 144
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
GJJF and Minister for Home Affairs (Migration) [2019] AATA 930
Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Kayo Rerekura v Minister for Home Affairs (Migration) [2019] AATA 153
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Matthews v Minister for Home Affairs [2020] FCAFC 146
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133
Murphy v Minister for Home Affairs [2018] FCA 1924
Nathanson v Minister for Home Affairs [2022] HCA 26
Rana v Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1327
Roberts v Minister for Home Affairs (Migration) [2018] AATA 3970
Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Tera Euna v Minister for Immigration and Border Protection [2016] AATA 301
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
Secondary Materials
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)
REASONS FOR DECISION
Member D. Cosgrave
17 May 2024
INTRODUCTION

Mr Jama seeks review of the Respondent’s delegate’s 12 November 2020 decision (the delegate’s decision) not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (the Visa).[1]
[1] Exhibit R3: G6, page 14.
On 20 November 2020, Mr Jama applied to the Tribunal for review of the delegate’s decision. On 5 February 2021, the Tribunal affirmed the delegate’s decision.[2]
[2] Exhibit R3: pages 535 – 607.
On 7 September 2023, the Full Federal Court ordered that the matter be remitted to the Tribunal for reconsideration according to law (this proceeding).[3]
[3] Exhibit R3: page 619.
The hearing was held by audio visual link in Brisbane on 13, 14 and 15 March 2024. Mr Lettenmaier represented Mr Jama. Mr West represented the Respondent.
Unless the context indicates otherwise, passages quoted in bold font have been emphasised by the Tribunal.
FACTS
Mr Jama is a 33-year-old[4] New Zealand citizen who first arrived in Australia on 18 November 2008.[5]
[4] Exhibit R3: G11, page 56.
[5] Exhibit R3: G12, page 74. Subsequent visas were issued to coincide with Mr Jama’s travel to New Zealand (in February 2009 to complete year 13, in January 2011 to complete his first year of university, and in August 2010 for approximately three months to accompany his mother to Somalia to visit his grandfather) and to Kuala Lumpur for a holiday in 2014. Mr Jama has not travelled to New Zealand since November 2011 and has remained in Australia since November 2014.
On 29 January 2017, Mr Jama and his co-accused accosted a female victim at a service station under the guise of selling second hand mobile phones to the victim’s employer. Mr Jama and the co-offender entered the victim’s vehicle and held a knife to the victim’s neck and threatened to kill her if she did not give them money. After the victim handed over some money, Mr Jama moved the knife from her neck to her ribs and put his hand around her throat. The co-offender took the victim’s phone and left the car. Mr Jama remained and continued to demand more money as he held the knife to her ribs and held his hand around her throat. She was eventually released. When she exited the car, Mr Jama followed her and said, ‘I know where you live so just watch what you do’. Mr Jama then went with his co-offender to a waiting car. His Honour Justice Curthoys accepted that the incident was planned and premeditated.[6] Mr Jama was subsequently arrested and charged with Aggravated Armed Robbery.
[6] Exhibit R3: G8, page 35.
On 12 November 2019, Mr Jama received a sentence of 4 years’ imprisonment for Aggravated Armed Robbery (the Index Offence).[7]
[7] Exhibit R3: G7, pages 27.
On 16 December 2019, Mr Jama's received notification that his Visa was cancelled under s501(3A) of the Migration Act 1958 (Cth) (the Act) [8] because he did not pass the character test given his ‘substantial criminal record’.[9]
[8] Exhibit R3: G32, page 101.
[9] As defined in ss 501(6)(a) and 501(7)(c) of the Act.
Section 501(7)(c) of the Act provides that for the purposes of the character test a person has a 'substantial criminal record' if the person has been sentenced to a term of imprisonment of 12 months or more.
OFFENDING HISTORY
Mr Jama’s offending history consists of:[10]
(a)The Index Offence.
(b)Two suspended fines for the offence of No Authority to Drive (on 18 April 2019 and 2 May 2019).
[10] Exhibit R3: G7, pages 27-28.
LEGAL FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) and Section 500 of the Act are the sources of the Tribunal’s jurisdiction in this matter.
Section 501(3A) of the Act, read with section 501(6), obliges the Respondent Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test because they have been sentenced to a full-time sentence of imprisonment of 12 months or more.
Under s 501CA(4), the Respondent Minister may revoke a visa cancellation decision if:
(a)representations have been made by the person in accordance with the invitation;[11] and
(b)the Minister is satisfied that:
(i)the person passes the character test;[12] or
(ii)there is another reason why the original decision should be revoked.[13]
[11] Pursuant to s 501CA(4)(a) of the Act.
[12] Pursuant to s 501CA(4)(b)(i) of the Act.
[13] Pursuant to s 501CA(4)(b)(ii) of the Act.
The Tribunal is satisfied that Mr Jama made the representations required by s 501CA(4)(a) of the Act and that he does not pass the character test.[14]
[14] Exhibit R3: G7 and G8, pages 27–48.
MATTERS FOR CONSIDERATION
Mr Jama ’s Visa was cancelled on the basis that he had failed the character test once the delegate considered and then applied section 501(6)(a). The Tribunal has also found above that he does not pass the character test.
The next issue for the Tribunal to consider under section 501CA(4)(b)(ii) of the Act is whether the Tribunal is satisfied of there being another reason to revoke the cancellation decision.[15] The Tribunal ‘stands in the shoes of the original decision-maker’ but with regard for the situation as at the time of its consideration.[16] If there is another reason, the Tribunal should set aside the original 16 December 2019 decision.[17]
[15] Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125, [3]-[5] (Katzmann J); [24] (Derrington J) [103] (O’Bryan J).
[16] Nathanson v Minister for Home Affairs [2022] HCA 26 (‘Nathanson’); Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51]; Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 299 [40], 315 [100], 324-325 [134]; Bushell v Repatriation Commission (1992) 175 CLR 408, 425 (Brennan J); Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78, [10]-[11] (Logan, Perry, and Beach JJ).
[17] Minister for Home Affairs v Buadromo [2018] FCAFC 151.
To assist its assessment, the Tribunal has created the following chronology of events:

Date

Event

29 January 2017

Mr Jama committed the Index Offence.[18]

30 January 2017

Mr Jama was arrested, remanded in custody and was subsequently granted bail on 31 May 2017.[19]

29 July 2017

Mr Jama was remanded in custody and released on 31 July 2017.[20]

30 October 2017

Mr Jama was remanded in custody after breaching his bail conditions and released on 9 March 2018.[21]

18 April 2019

Mr Jama was fined $200 for No Authority To Drive (Fines Suspended).[22]

2 May 2019

Mr Jama was fined $200 for No Authority To Drive (Fines Suspended).[23]

8 August 2019

Mr Jama was convicted of the Robbery by a jury and remanded in custody to await sentencing.[24]

12 November 2019

Mr Jama was sentenced to 4 years’ imprisonment commencing 21 November 2018 at the Crown’s suggestion.[25]

4 November 2020

Mr Jama was granted parole.[26]

19 November 2020

Mr Jama was released from prison.[27]

[18] Exhibit R3: G8, pages 29-48.
[19] Exhibit R3: page 322.
[20] Exhibit R3: page 273.
[21] Op.cit.
[22] Exhibit R3: G7, pages 27-28.
[23] Ibid.
[24] Exhibit R3: page 322.
[25] Ibid.
[26] Exhibit R3: pages 293-294.
[27] Ibid.

In prison, Mr Jama was determined to have committed two offences. On 12 April 2020, he did not take medication as directed, contrary to s 70(e) of the Prisons Act 1981 (WA).[28] On 22 April 2020, he was part of a fight in the prison along with many other prisoners, contrary s 69(i) of the Prisons Act. [29]
[28] Exhibit R3: page 264.
[29] Exhibit R3: pages 259-261.
IS THERE ANOTHER REASON WHY MR JAMA’S VISA CANCELLATION SHOULD BE REVOKED?
When the Tribunal assesses and considers the factors weighing for and against setting aside a visa cancellation, section 499(2A) of the Act requires it to comply with Direction 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).[30] Guidance in terms of complying with the Direction is provided by the Full Court of the Federal Court’s decision in Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[31]
[30] See Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at paragraph [38].
[31] Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172 at paragraph [27].
THE DIRECTION
The Direction contains mandatory and aspirational considerations guiding the exercise of statutory power under the Act.[32]
[32] BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99, at [22], citing with approval Matthews v Minister for Home Affairs [2020] FCAFC 146, at [45].
The following principles in paragraph 5.2 of the Direction inform the decision-making process:[33]
1Australia 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.
2Non-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.
3The 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 measurable risk of causing physical harm to the Australian community.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
5With 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.
6Decision-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) (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 risk of causing physical harm to the Australian community.
[33] Paragraph 5.2 of the Direction.
Paragraph 6 of the Direction provides that, informed by the above principles, a

decision-maker must consider the Primary and Other considerations described in Paragraphs 8 and 9 of the Direction where relevant to their decision making.
Paragraph 7(1) of the Direction provides that appropriate weight should be given to ‘information and evidence from independent and authoritative sources.’
Paragraphs 7(2)-(3) of the Direction state that ‘Primary considerations should generally be given greater weight than the other considerations,’ and ‘One or more primary considerations may outweigh other primary considerations.’
Paragraph 8 of the Direction provides the following primary considerations:
·protection of the Australian community from criminal or other serious conduct;
·whether the conduct engaged in constituted family violence;
·the strength, nature and duration of ties to Australia;
·the best interests of minor children in Australia; and
·expectations of the Australian community.
Paragraph 9 of the Direction identifies the following non-exhaustive list of other considerations to be considered where relevant:
·legal consequences of the decision;
·extent of impediments if removed;
·impact on victims; and
·impact on Australian business interests.
The Tribunal is not precluded from finding that a consideration specified under Paragraph 9 of the Direction has equivalent or greater weight than a consideration specified under Paragraph 8 of the Direction. This depends on each matter’s specific circumstances.[34] The weighing process is substantively left to the individual decision maker exercising the relevant power under section 501 of the Act.[35]
[34] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, at [23] and [28] (Colvin J); FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19.
[35] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, at [57].
The considerations in paragraphs 8 and 9 that are relevant in this matter are:
·Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct;
·Primary Consideration 3: Strength, nature and duration of ties to Australia;
·Primary Consideration 4: Best interests of minor children in Australia;
·Primary Consideration 5: Expectations of the Australian community;
·Other Consideration (a): Legal consequences of the decision; and
·Other Consideration (b): Extent of impediments if removed.
The mandatory considerations that are not relevant in this matter are set out below, the Tribunal finds each of these to have neutral weight:
·Primary Consideration 2, relating to acts of family violence, because there is no suggestion that Mr Jama has ever committed an act of family violence;[36] and
·Other Consideration (c), concerning victims, because there is no evidence that the decision would affect any victims of Mr Jama’s offending;[37] and
·Other Consideration (d), concerning Australian business interests, because there is no evidence that the decision would affect any Australian business interests.[38]
[36] Exhibit R1: Respondent’s Statement of Facts, Issues and Contentions (SFIC), page 9, paragraph [37] and Exhibit A1: Applicant’s Statement of Facts, Issues and Contentions (SFIC), page 12, paragraph [41].
[37] Exhibit R1: Respondent’s SFIC, page 13, paragraph [55].
[38] Ibid.
EVIDENCE
The following is an overview of the evidence tendered or adduced before the Tribunal. The evidence referred to below includes documentary evidence collated for the purposes of section 501G of the Act, documents tendered by the Respondent and Mr Jama’s representatives and oral testimony from Mr Jama, Ms Fatima Diriye, Ms Hasda Jama, Ms Amal Jama, Mr Mustafa Jama, Ms Ayaan Aideed, Mr Sharamake Sabriye, Ms Luul Ibrahim and Mr Jeffrey Cummins.
Documentary evidence

The Tribunal received written evidence during the hearing, which is attached to this Decision and marked ‘Annexure A’.
The Tribunal’s assessment of the witnesses
The Tribunal observed Mr Jama closely as he gave evidence. While at times his testimony was cogent, unshaken and persuasive, especially under cross-examination from Mr West about his prison and immigration detention offending,[39] it is reasonable to describe him as an unimpressive witness.
[39] Transcript, page 18, line 40–page 20, line 27 and page 27, lines 14-22.
Ms Diriye, Mr Jama’s mother, was a forthright and transparent witness, especially when dealing with her health conditions and her need for support.
Ms Hasda Jama, Mr Jama’s sister, presented as clear, cogent and insightful. She gave direct answers to questions without apparent evasion.
Ms Amal Jama, Mr Jama’s sister, gave straightforward and direct testimony without apparent artifice or guile.
Mr Mustafa Jama and Ms Ayaan Aideed, Mr Jama’s cousins, both gave straightforward testimony.
Ms Luul Ibrahim, the President of the Somali Support Group gave clear answers in a direct manner without qualification.
Mr Cummins’ expert testimony was of great benefit to the Tribunal. His testimony was precise, lucid and cogent. Under cross-examination he qualified his evidence when appropriate and necessary.
PRIMARY CONSIDERATIONS
Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct
When considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind that the Australian Government is committed to protecting the Australian community from harm because of criminal activity or other serious conduct by non-citizens.
Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens with the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Tribunal’s consideration: The nature and seriousness of Mr Jama’s conduct
Paragraph 8.1.1(1)
This paragraph states that, in considering the nature and seriousness of the non-citizen’s ‘criminal offending or other conduct to date’, decision-makers ‘must have regard to the following’:
(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, or an offence against section 197 A 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 reoffended 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 conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
When assessing the nature and seriousness of Mr Jama’s criminal offending or other conduct to date, the following matters are relevant:
·the nature and details of his offending;
·the sentences imposed by the courts for his offending;
·the frequency of his offending and the trend of increasing seriousness; and
·the cumulative effect of his repeated offending.
The Tribunal has considered both parties’ respective submissions on Paragraph 8.1.1 of the Direction.
Mr Lettenmaier’s contentions are:
·Mr Jama accepts that his Index Offence should be characterised as very serious and that it was a violent crime against a woman.[40]
[40] Exhibit A3: Applicant’s Reply, paragraph [3].
·Mr Jama disputes the Respondent’s contention that his offending is increasing in seriousness.[41]
[41] Exhibit A3: Applicant’s Reply, paragraph [4].
·Mr Jama’s driving offences are not to be disregarded. However, the offences are not serious based on the following:[42]
[42] Exhibit A1: Applicant’s (SFIC), paragraph [34].
oAside from the No Authority To Drive offences, none of his other driving offences were determined by a court and were dealt with by way of a fine.
oNone of the driving offences involved driving under the influence of drugs or alcohol.
oAgain, aside from the No Authority To Drive offences, the driving offences were committed when Mr Jama was young and he should be given the benefit of youth (as the Supreme Court gave him in relation to the Index Offence[43]).
oThey were committed over a relatively lengthy period (i.e., there were not a significant number of infringements in a short space of time).
oThere was no notable increase in the seriousness of the offences.
oThe Supreme Court placed no weight on Mr Jama’s driving offence record in reaching its conclusion that the Index Offence was an ‘aberration’ and the significant term of imprisonment imposed on him reflected the ‘very significant need for general deterrence’.[44]
·Mr Jama’s prison offences are towards the lower end of the spectrum and should be given minimal weight:[45]
oMr Jama was caught in a melee in the prison some months into the COVID lockdown on 22 April 2020 and felt the need to defend himself.[46]
oMr Jama did not take the medication because it made him drowsy and he would take it later.[47]
oIt is notable that, notwithstanding those offences, the Prisoners Review Board granted Mr Jama parole and considered that he was a low risk of re-offending.[48]
[43] Exhibit R3: page 36.
[44] Exhibit R3: pages 37-38.
[45] Exhibit A1: Applicant’s SFIC, paragraph [36].
[46] Exhibit R3: pages 259-261 and Exhibit A2: Applicant’s 24 January 2024 statement, page 10, at [73].
[47] Exhibit R3: page 264 and Exhibit A2: Applicant’s 24 January 2024 statement, page 10, at [74].
[48] Exhibit R3: page 293.
In essence the Respondent contends that:[49]
·Mr Jama ’s offending is very serious because it can be characterised as violent crime and as a crime of a violent nature against a woman.
·There has been a trend of increasing seriousness in Mr Jama’s offending as it has escalated from driving offences to the Index Offence
[49] Exhibit R1: Respondent’s Statement of Facts, Issues and Contentions (SFIC), paragraphs [27]–[32].
Paragraphs 8.1.1(1)(a)(i), 8.1.1(1)(a)(ii) and 8.1.1(1)(a)(iii)
These paragraphs require the Tribunal, when considering this matter, to have regard to, and acknowledge that, violent and/or sexual crimes, crimes of a violent nature against women or children and acts of family violence are viewed very seriously.
The Tribunal finds that Mr Jama’s Index Offence was both a violent crime and a crime of a violent nature against a woman.
Paragraph 8.1.1(1)(b)(i)
This paragraph is not relevant. The Tribunal did not see any evidence that Mr Jama has committed any offences involving causing a person to enter into or to otherwise become a party to a forced marriage.
Paragraph 8.1.1(1)(b)(ii)
This paragraph is enlivened and relevant. Having considered the evidence of Mr Jama ’s offending, the Tribunal considers that Mr Jama has committed crimes against vulnerable members of the community. The vulnerable member of the community in this matter is the female victim of the Index Offence.[50]
[50] See Garland v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 144 at [42] – [50].
Paragraph 8.1.1(1)(b)(iii)
This paragraph refers to conduct forming ‘...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’. The Tribunal finds that this paragraph is not relevant to its assessment of the nature and seriousness of Mr Jama ’s conduct.
Paragraph 8.1.1(1)(b)(iv)
This paragraph is not relevant as the evidence does not disclose any crimes that Mr Jama has been charged with while in immigration detention, although the Tribunal notes his misconduct while in immigration detention.
Paragraph 8.1.1(1)(c)
In applying this paragraph, the Tribunal is precluded from considering sentences imposed on Mr Jama for:
(a)any violent offending that he may have committed against women or children;
(b)acts of family violence; and
(c)any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.
Mr Jama ’s Index Offence involved a crime of violence against a woman. His other offending only resulted in fines. The Tribunal finds that it is precluded from considering the sentence Justice Curthoys imposed on Mr Jama.
Paragraph 8.1.1(1)(d)
This paragraph raises two specific aspects of a non-citizen's offending for consideration: the offending’s frequency and/or whether there is any trend of increasing seriousness.
Frequency
Mr Jama ’s adult offending history encompasses two periods: between 2010 and 2016 when he was the subject of a number of speeding and other traffic infringements for which his license was suspended and between January 2017 and May 2019 which covers his Index Offence and two driving offence fines.[51] This history does not suggest a substantive frequency of offending but more a melange of driving offences combined with his Index Offence.
[51] Exhibit R3: G7, pages 27-28.
Trend of increasing seriousness
The Tribunal considers that Mr Jama’s offending can be split between his Index Offence and his driving fines. It is difficult to identify a trend of increasing seriousness under either type of offending by itself or when they are combined.
Paragraph 8.1.1(1)(e)
This paragraph requires the Tribunal to consider the cumulative effect of Mr Jama’s repeated offending. His Index Offence and his driving offending are distinguishable. He has not repeated his Index Offence nor has he repeated his driving offending. While both had evidenced serious and material physical, psychological and financial consequences and also likely unknown consequences, it is difficult to identify from the evidence any cumulative effect from the combination of the Index Offence and the driving offending.
Paragraphs 8.1.1(1)(f), (g) and (h)
There is no evidence before the Tribunal that enlivens these paragraphs.
Tribunal’s finding: The nature and seriousness of Mr Jama ’s conduct.
The Tribunal has sought above to apply and consider each of the relevant sub-paragraphs appearing in paragraph 8.1.1(1) of the Direction.
With reference to the relevant and applicable paragraphs referred above and after a holistic consideration of Mr Jama’s offending, the Tribunal finds that it should be characterised as very serious.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
In considering this part of the Direction, the Tribunal should 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. 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.[52]
[52] Paragraph 8.1.2(1) of the Direction.
The Tribunal must have regard to the following relevant factors on a cumulative basis:
(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)available information and evidence on the risk of the non-citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence.[53]
[53] Paragraph 8.1.2(2) of the Direction.
In assessing the risk to the Australian community, the Tribunal has considered the evidence and the parties’ submissions in relation to paragraph 8.1.2.
Mr Lettenmaier contends:[54]
[54] Exhibit A1: Applicant’s SFIC [37].
·The Index Offence was an aberration in Mr Jama’s behaviour. There were no similar offences prior (e.g., violent assaults or thefts) and there have been none since. The Tribunal should give this serious consideration when determining whether his offending should outweigh all other considerations. Further, Mr Jama and his family have consistently stated that the Index Offence occurred when he had fallen into a negative peer group. This is corroborated by his co-offender’s criminal record, recorded in the Supreme Court’s sentencing remarks, which includes property offences and violent behaviour on a railway.[55]
[55] Exhibit R3: page 41.
·Mr Jama concedes that the nature of harm should he reoffend in a similar manner to the Robbery is not insignificant. However, it is not at the worst or most serious level of harm (e.g., sex offending or offences against children). Further, it is mitigated by numerous assessments that Mr Jama poses a low risk of reoffending.[56]
[56] Exhibit R3: pages 90 and 416. The Applicant’s SFIC also referenced page 366 but the Tribunal could not see a relevant reference on that page.
·The Tribunal should consider the following factors in Mr Jama’s favour:
oHe is now 33 years old and his family attest that he has shown emotional growth and matured.[57]
[57] Exhibit A2: Ms Hasda Jama’s 24 January 2024 statement, page 52, paragraphs [26]-[30] and Mr Mustafa Jama’s 24 January 2024 statement, pages 63-64, paragraphs [32]-[35].
oWhilst Mr Jama was in immigration detention his father died. This has been an especially formative experience, particularly as he was unable to attend the funeral.[58]
[58] Exhibit A2: Mr Jama’s statement, page 2, paragraph [10].
oHe is motivated to help his family, particularly his mother because she no longer has the support of her husband, and her health is deteriorating. Furthermore, his sister, Amal Jama, has separated from her husband and is caring for their three children (one of whom, KL, is autistic).[59]
[59] Exhibit A2: Mr Jama’s 24 January 2024 statement, page 3, paragraphs [18]-[19]; Ms Amal Jama’s 24 Janaury 2024 statement, page 56, paragraph [18] and Ms Diriye’s 24 January 2024 statement, page 46, paragraph [21].
·Whilst Mr Jama has used cannabis and suboxone in immigration detention his use has been relatively sporadic, and he has not used methamphetamine or any similar drugs. Further, he has given some explanation for his usage:
onotably self-medication in response to the murder of a friend in detention, the death of his father and for pain management when denied prescribed medication.[60]
oMr Jama reports distrusting IHMS medical staff which has contributed to his self-medication.[61]
·The Tribunal should have a degree of circumspection when considering Mr Jama’s drug use whilst in immigration detention. Immigration detention is neither prison nor freedom. Rather it is a purgatory where prolonged periods of detention can have negative effects on detainees.[62]
·Mr Jama has been consistently considered to be at low risk of re-offending (so much so that he was not eligible for criminogenic programs whilst in prison). Notwithstanding that ineligibility, he has undertaken a myriad of courses over the years and has most recently undertaken courses to address drug issues and decision making.[63]
·The Tribunal should place significant weight on Mr Jama’s clear and structured plan to address his poor decision-making and drug use with the support of Ms Ibrahim and SSP if the cancellation decision is revoked and he is able to rejoin his family and community.[64]
·The Tribunal should also place significant weight on Mr Jama’s religious belief, his strong connection to his mosque and religious leaders, and his honesty and courage in disclosing his criminal offending to his religious leaders in order to seek guidance and to better understand his faith.[65]
·Mr Jama has stated a strong desire to be a positive role model for not only his family but for other youth as well. He wants to “share [his] mistakes that led to prison and detention… so [other youth] do not do this. I want people to learn from my experience”.[66]
·Mr Jama has overwhelming support from his family. To the extent it is put against him that this support did not stop him committing the Index Offence. That is an oversimplification of his circumstances and ignores the fact that he committed that crime in his youth, whilst in in a negative peer group, and that it was aberrant behaviour. Put another way, the Tribunal cannot compare the support then to the support now because the Index Offence has indelibly changed him and his family. They have endured and suffered the consequences together. This is evident from their statements in both the previous and current proceedings.
[60] Exhibit A2: Page 87, Detainee Complaint Form dated 26 June 2022.
[61] Exhibit A2: Applicant’s 24 January 2024 statement (dated), page 11, paragraphs [83]-[88] and page 87, Detainee Complaint Form AB 87 dated 26 June 2022.
[62] Australian Human Rights Commission Inspection of Yongah Hill Immigration Detention Centre: Report (dated 6-8 May 2017), page 21 and footnote 35.
[63] Exhibit A2: Applicant’s 24 January 2024 witness statement, pages 12-13 [91].
[64] Exhibit A2: Luul Ibrahim’s 24 January 2024 statement, pages 82-86 and Mr Jama’s 24 January 2024 statement, page 16, [110]-[111].
[65] Exhibit A2: Mr Jama’s 24 January 2024 statement, pages 13-14, [97]-[102].
[66] Exhibit A2: Mr Jama’s 24 January 2024 statement, pages 14 and 16, [102] and [111].

Summarising the Respondent’s arguments:[67]
[67] Exhibit R1: Respondent’s SFIC, paragraphs [34]-[35].
·the nature of the resulting harm if Mr Jama were to reoffend could involve psychological, financial and/or catastrophic physical harm to members of the Australian community. The nature of the harm is so serious that any risk of reoffending in the future in unacceptable.
·The Tribunal should conclude that the risk of Mr Jama further offending is unacceptable for the following reasons:
oThere is no current professional assessment of Mr Jama’s risk of re-offending that considers all of his circumstances. The only available risk assessment was provided by Dr Watts for the previous Tribunal. In his report, he assessed Mr Jama as being a low risk of re-offending.
oDuring cross-examination at the previous hearing, Dr Watts agreed that he was unaware of several aspects of Mr Jama’s conduct and drug use.[68] He agreed that his risk rating would have increased if Mr Jama disclosed those details during his assessment.
oThe Minister adopts the previous Tribunal’s finding that Mr Jama is higher than a low risk of reoffending.[69]
oMr Jama has continued to use drugs since the previous Tribunal’s decision and after his further rehabilitation. He has claimed these courses have assisted him to adjust and regulate his emotions.[70] He has a history of testing positive for drugs while on bail and attempting to intentionally deceive urinalysis tests to avoid having his bail revoked again.[71] He has continued to use drugs while in detention. He has admitted to self-medicating with cannabis and suboxone while in detention as recently as December 2023. His rehabilitation has failed in the controlled environment of detention.
oMr Jama’s recent efforts at rehabilitation have been ineffective. As discussed in the Minister’s previous SFIC (and accepted by the previous Tribunal),[72] the applicant has not provided evidence of the courses completed before the Court. He has provided more evidence of course completions from between June and December 2023, but their effectiveness should be rejected when the applicant has continued to use substances while in detention.
Tribunal’s finding: The nature of the harm to individuals or the Australian community were Mr Jama to engage in further criminal or other serious conduct.
[68] Exhibit R3: pages 508-510.
[69] Exhibit R3: page 589.
[70] Exhibit A2: Mr Jama’s 24 January 2024 statement, pages 12-13.
[71] Exhibit R3: pages 479 – 481.
[72] Exhibit R3: page 588.
The Tribunal finds that further future criminal conduct of the categories Mr Jama has previously engaged in could result in serious and material physical, psychological and financial harm to the potential victims and to the Australian community.
Tribunal’s consideration: The likelihood of the non-citizen engaging in further criminal or other serious conduct.
The Tribunal has holistically considered the totality of the oral testimony and documentary evidence addressing the likelihood of Mr Jama engaging in further criminal or serious conduct.
The issues surrounding the consideration of risk under s.501(6)(d) of the Act, from which paragraphs 8.1.2(1) and (2) are drawn, have been extensively considered by the Tribunal and superior courts.[73]
[73] See, for example, Rahman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 888 (20 April 2020); QKVH and Minister for Home Affairs [2020] AATA 4431 (‘QKVH 2020’); Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019); Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153.
The Full Court of the Federal Court in Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 (‘Baker’), at 194 stated that the reference to ‘criminal conduct’ is:
‘…not concerned with whether the conduct has had some temporal result, such as the incurring of a conviction, but with the light that the conduct throws on the actor’s character. Of course, in the absence of a prosecution and conviction, satisfaction that criminal conduct has occurred will not be attained on slight material.’
(Emphasis added)
[75] See the discussion in Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970 at [27].
The Direction’s clear legislative intention is that the threshold is whether there is ‘a’ risk.[74]

The Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) specifically removed the word ‘significant’ from s 501(6)(d) leaving it as ‘a’ risk.[75]
[74] See the discussion in GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019) at [48]–[52].
In Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 (‘Sabharwal’), the Full Court of the Federal Court (Perram, Murphy and Lee JJ) stated at [2]:
‘… Section 501(6)(d)(i) provides that a person does not pass the character test if
“in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would ... engage in criminal conduct in Australia”. The section requires an evaluative judgment by the decision-maker, in the present case the Minister personally, as to whether the decision-maker is satisfied that there is such “a risk.” Then, if the decision-maker is so satisfied, the decision-maker has a discretion to refuse to grant a visa to the person.’
In Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 (‘Guo’) Chief Justice Brennan, Justices Dawson, Toohey, Gaudron, McHugh and Gummow of the High Court observed as follows (at 574-575): [76]
‘The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.’
(Emphasis added)
[76] QKVH and the Minister for Home Affairs (‘QKVH 2020’) [2020] AATA 4431 (2 November 2020) at [5].
Justice Mortimer explored the notion of risk and its nexus to a range of future possibilities and variables in Murphy v Minister for Home Affairs [2018] FCA 1924 (‘Murphy’), at [37] where Her Honour noted:[77]
‘That is, part of the Tribunal’s task was to decide not only whether the Applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be “tolerated”.’
[77] Murphy v Minister for Home Affairs [2018] FCA 1924, [37].
Consequently, applying the reasoning described in Baker, Sabharwal and Guo to this matter, the Tribunal’s task is to assess whether there is ‘a risk’ or a likelihood of Mr Jama engaging in further future criminal or serious conduct.
In making this assessment, the Tribunal has the benefit of reviewing Justice Curthoys’ sentencing decision, the reports and assessments of Dr Watts[78] and Mr Cummins[79], the Prisoners Review Board’s Parole Order dated 4 November 2020,[80] the Western Australian Department of Justice’s Treatment Assessment Report dated 18 November 2019,[81] the Western Australian Department of Justice’s Individual Management Plan dated 5 February 2020,[82] the statements and testimony of Ms Diriye, Ms Hasda Jama, Ms Amal Jama, Mr Mustafa Jama and Ms Luul Ibrahim as well as the documentary evidence in relation to Mr Jama participating in formal rehabilitation courses.
[78] Exhibit R3: Pages 412-420.
[79] Exhibit A4: Pages 6-19.
[80] Exhibit R3: Pages 341-342.
[81] Exhibit R3: pages 339-340.
[82] Exhibit R3: See pages 89-90.
In particular, the Tribunal notes Mr Cummins’ use of Historical Clinical Risk-20 Version 3 and Mr West’s cross-examination of Mr Cummins.
Some detail is provided in Mr Cummins’ report:
‘[52] I assessed Mr Jama’s risk for committing a further offence of serious violence through interviewing him, reading all of the materials provided, noting the results of PAI-Plus in Dr Watts’ report and using the current best practice assessment tool for violence risk, namely the qualitative ( not quantitative) assessment tool, Historical Clinical Risk-20 Version 3 (HCR-20 V3) which addresses 20 risk factors including 10 risk factors in the Historical scale, 5 risk factors in the Clinical scale and 5 risk factors in the Risk Management scale. The focus of HCR-20 V3 is to direct the assessor to what are the relevant risk factors for the person being assessed.
[53] Given all of the information currently available to me concerning Mr Jama and also taking into consideration the risk factors as assessed by the HCR-20 V3, I concluded his risk for committing a further offensive violence was Low-Moderate and trending towards Low (where the risk category ratings are Low, Low-Moderate, Moderate, Moderate-High and High).’[83]
[83] Exhibit A4: page 14.
A consideration of the risk or likelihood of Mr Jama engaging in further criminal or serious conduct should encompass the factors that:
(a)facilitate the risk; or,
(b)conversely, hinder or retard the risk.
Doing this enables the Tribunal, in making its assessment, to consider Justice Mortimer’s question as to ‘whether the risk should be “tolerated”.’
Factors that facilitate the risk
Mr Jama committed the Index Offence as a consequence of poor decision making,[84] anti-social or negative peer contacts and being under the influence of a combination of drugs.[85] The Tribunal considers that his prior unsuccessful efforts to find work in Melbourne may have contributed to his state of mind. It appears from the evidence and testimony that, to a greater or lesser extent, he has continued to use cannabis and suboxone since the Index Offence.
[84] Exhibit R3: page 37.
[85] Exhibit R3: page 242.
Mr Jama has a history of testing positive for drugs while on bail and attempting to intentionally deceive urinalysis tests to avoid having his bail revoked again.[86] He has continued to use drugs while in detention. He has admitted to self-medicating with cannabis and suboxone while in detention as recently as December 2023. His rehabilitation has failed in the controlled environment of detention.
[86] Exhibit R3: pages 479–481.
His drug-taking history is tempered by the lack of correlated serious offending since his conviction. While acknowledging his prison offending and his misconduct in detention, it is noted that it is difficult to characterise these as serious. The Tribunal also notes Justice Curthoys’ observation that ‘There is some substance abuse, but it wouldn’t appear to be a relevant factor that should prevent his rehabilitation.’[87]
[87] Exhibit R3: G8, page 39.
The High Court’s reasoning in Guo that ‘the extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity’ can be applied here.
The Tribunal considers that poor decision-making is a facilitative factor for Mr Jama, acknowledging Justice Curthoys’ finding.[88]
[88] Exhibit R3: G8, page 36.
The Tribunal considers that the use of drugs is a facilitative factor and a threshold risk for Mr Jama. It further considers, applying Guo, that he has developed the skills to manage his drug use (or to use drugs such as cannabis because of pain arising from his anal fistula infection while in detention) in a manner so as to minimise or avoid the risk of offending. One further conclusion that can be drawn here is that he has improved his decision-making since committing the Index Offence.
Factors that hinder or retard the risk – rehabilitation and remorse
Mr Jama provided oral testimony and presented documentary evidence asserting the extent and nature of his rehabilitation and his expressions of remorse about his offending.
In terms of demonstrating remorse, the Tribunal notes the following:
·The testimony of his mother, sisters and cousins regarding his maturity and his expressions of remorse and reflection about his Index Offence.
·There is no evidence before the Tribunal of any attempt to communicate an apology to the victim of his Index Offence.
The Tribunal also notes from the oral testimony and the statements of Ms Hasda Jama, Ms Amal Jama and Mr Mustafa Jama that Mr Jama appears to have matured as an individual since committing the Index Offence 7 years ago.[89] The Tribunal also acknowledges Mr Lettenmaier’s contention that the Index Offence appears to have been a traumatic event for Mr Jama’s family as well as for Mr Jama.
[89] See Transcript, page 45, lines 30-34.
While Mr Jama ’s rehabilitation has not been tested in the general community, his apparent forbearance from further serious offending while in prison and detention suggests that his rehabilitative efforts have had some degree of success, contrary to the Respondent’s assertions that they have failed.
Looking at these factors described above, the Tribunal observes that the evidence over the 7 years since the Index Offence forms a rough but informative longitudinal study of Mr Jama as a developing and maturing individual under a variety of stressors ranging from his apparent alienation from his father and family in 2017 through his Index Offence, bail, prison and detention.
His responses to these stressors, evidenced by his efforts at formal rehabilitation and the evidence provided by his family, the documentary evidence provided by the Western Australian Department of Justice and the expert evidence of Mr Cummins and Dr Watts, provide a current picture of an individual who has matured in terms of insight, outlook and decision-making. The Tribunal considers that the relevant factors here that hinder or retard his risk of re-offending are both established and effective.
Risk management factors
The evidence and testimony identifies several static and dynamic risk management factors for Mr Jama. These include a committed and supportive network of family and friends and his embrace of his faith. While tempered by the fact that these factors have not been tested in the general community, the multiplicity of views of Mr Jama from his family which all attest to his increased maturity and his increased willingness to communicate openly about his issues suggest to the Tribunal that his family network constitutes a strong dynamic risk management factor.
If Mr Jama is released from detention into the Australian community he will not have employment, although his cousin has testified that he will arrange work for Mr Jama. It is clear to the Tribunal that Mr Jama’s mother and his sister Amal would value his physical support and consequently would act as risk management factors in terms of further offending.
Risk analysis and consideration
The Tribunal has considered the evidence above, applying the dictum in Guo that the extent to which past events or conduct are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity.
Justice Curthoys accepted that Mr Jama’s Index Offence was ‘an aberration.’[90] Mr Jama’s subsequent conduct has, to a significant extent, validated this observation. Applying Guo, it appears that while there is a ‘a’ risk that he will re-offend, it is less likely rather than more likely that Mr Jama will re-offend in the same manner as his Index Offence as the conditions under which his Index Offence occurred have ameliorated and new supports and management factors have likely displaced the cycle of regularity.
Tribunal’s finding: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
[90] Exhibit R3: G8, page 40.
While the Tribunal has found above that any future criminal conduct of the categories Mr Jama engaged in could result in serious and material physical, psychological and financial harm, the Tribunal also considers and finds that the risk or likelihood of Mr Jama re-offending is slight, with the consequential finding that the risk to the Australian community should Mr Jama commit further offences or engage in other serious conduct is small.
Conclusion: Primary Consideration 1: Protection of the Australian community
This consideration weighs in favour of affirming the delegate’s decision to not revoke the mandatory cancellation of Mr Jama ’s Visa.
Primary Consideration 3: The strength, nature and duration of ties to Australia
Paragraph 8.3 of the Direction provides:
1Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
2In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
3The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
4Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
(a)the length of time the non-citizen has resided in the Australian community, noting that:
(i)     considerable weight should be given to the fact that a noncitizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
(ii)    more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
(iii)   less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the noncitizen began offending soon after arriving in Australia.
The Respondent contends that:[91]
·Mr Jama’s mother and five siblings live in Australia. His mother and siblings have provided new letters of support and would be impacted by his removal.
·Regarding the contention that members of his family are financially reliant on the applicant, there is nothing to suggest that Mr Jama would not be able to provide financial support from New Zealand.
·He does not have any children in Australia whose interests would be impacted by his removal.
·He has also provided several statements from his social links and other family who reside in Australia.
·He moved to Australia as a 17 year old and has lived here for 15 years. The length of time he has spent in Australia is a factor the Tribunal must bring to account. He has not been ordinarily resident in Australia during and since his formative years.
·In respect of his positive contributions to the Australian community, the applicant has a work history in Australia and prior involvement in local sports and ethnic/religious community groups.
·The Respondent Minister accepts that this primary consideration weighs in the applicant’s favour but submits that it does not outweigh the countervailing primary considerations.
[91] Exhibit R1: Respondent’s SFIC, paragraphs [39]–[42].

Mr Lettenmaier contends that:[92]
[92] Exhibit A1: Applicant’s SFIC, paragraphs [43]–[47] and Exhibit A3: paragraphs [11]–[15].
·All of Mr Jama’s immediate family reside here and there is unequivocal evidence as to the acute detriment non-revocation would have on them. For example, his mother has stated that her health has deteriorated badly since he was detained. [93]
[93] Exhibit A2: page 46, paragraph [21].
·The Respondent has contended that Mr Jama would be able to provide financial support from New Zealand. This overlooks the evidence of the personal supports he and his family see him providing if he remains in Australia:
oPhysical care for his mother.[94]
oAssist with watching the children or providing assistance with care for the children in the family.[95]
·The Respondent’s contention assumes that his capacity to work will not be impeded if removed to New Zealand.
·His social circles and mentors are all based in Australia, and that he has no social ties with New Zealand.[96] This is supported by Mawlid Gabose and Sharmarke Sabriye who have given consistent evidence as to their relationship with Mr Jama.
·Mr Jama first arrived here aged 17 (permanently settling here at 20). It is an error to proceed on the assumption that a person’s ‘formative years’ end at 18. There is no such limitation, and it is a matter to be determined by the Tribunal in each case: Nafeh v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 199 at [10] and [13] and Khan v Minister of State for Immigration and Ethnic Affairs (1994) 35 ALD 37 at [16]. The Tribunal should be satisfied that Mr Jama was in Australia during his formative years. Considerable weight should be given to that fact.
·He has positively contributed to the Australian community through his engagement with the local Somali community and local Islamic community.[97]
·He has positively contributed to the Australian community through his involvement and leadership with his local football team.[98]
·This consideration weighs heavily in favour of revocation.
[94] Exhibit A2: pages 46 and 2.
[95] Exhibit A2: page 56, paragraph [16] and page 18, paragraph [128].
[96] Exhibit A2: page 18, paragraph [130].
[97] Exhibit A2: page 5, paragraphs [38]–[40] and Exhibit R3: pages 410-411.
[98] Exhibit A2: page 5, paragraphs [31]–[37] and page 77, paragraphs [4]–[6].
The Tribunal now considers these contentions and evidence through the lens of each sub-paragraph in paragraph 8.3:
Paragraph 8.3 (1)
Mr Jama has his immediate family in Australia.[99] Subject to his family being Australian citizens, permanent residents or having the right to remain in Australia indefinitely, a decision to affirm the delegate’s decision to remove Mr Jama will likely have negative emotional, psychological and financial impacts on each of them based on their evidence and testimony before the Tribunal.
[99] Exhibit: R3, page 64.
Paragraph 8.3 (2)
Mr Jama has no children of his own in Australia.
Paragraph 8.3 (3)
Mr Jama appears to have several strong and enduring friendships as evidenced by Mr Mustafa Jama and Mr Sabriye, subject to these gentlemen being Australian citizens, permanent residents or having the right to remain in Australia indefinitely.
Based on the evidence the Tribunal considers that Mr Jama played a substantial role within the Western Australian Somali community and with Somali youth sporting teams before his incarceration.
Paragraph 8.3 (4)
Mr Jama was in Australia for at least the latter part of his formative years, having arrived when he was 17. It is clear to the Tribunal that he was still maturing as an individual for some period after his arrival in Australia given the evidence before the Tribunal including Justice Curthoys’ observation regarding poor decision-making and the more recent statements of his sisters and friends regarding his recent displays of maturity.[100] He has made positive contributions to the Australian community through his community and sporting connections and his friendships. His Index Offence occurred approximately 8 years and 2 months after his arrival in Australia.
[100] Exhibit A2: Ms Hasda Jama’s 24 January 2024 statement, page 52, paragraphs [26]-[30] and Mr Mustafa Jama’s 24 January 2024 statement, pages 63-64, paragraphs [32]-[35].
Tribunal’s consideration
Mr Jama arrived in Australia during his formative years. Prior to his Index Offence he had made some tangible, if limited, contributions to the Australia community through his work and volunteering in the community.
The Tribunal considers that a decision leading to Mr Jama's removal will have an adverse emotional, financial and psychological impact on his family, as well as his friends.
Conclusion: Primary Consideration 3: The strength, nature and duration of ties to Australia.
The Tribunal gives this consideration strong weight towards setting aside the delegate’s decision on the basis that Mr Jama’s evidenced ties to Australia involve people who are either Australian citizens, Australian permanent residents or have a right to remain in Australia indefinitely.
Primary Consideration 4: Best interests of minor children in Australia affected by the decision.
Mr Jama, while having no children of his own, identified his sister Amal’s children and those of his two cousins (Mr Mustafa Jama and Ms Ayaan Aideed) as relevant to this consideration. Mr Jama has also largely been in prison or detention since 2019.
The Tribunal is required here to consider the best interests of each relevant minor child, applying the following factors where relevant:[101]
·The nature and duration of the relationship between each minor child and Mr Jama, giving less weight where the relationship is non-parental, there is no existing relationship, there have been long absences or there has been limited meaningful contact.[102]
·The extent to which Mr Jama is likely to play a positive parental role in the future taking into account the time before the minor child turns 18.[103]
·The impact Mr Jama’s prior conduct and any likely future conduct and whether the impact on the child will be negative.[104]
·The likely effect that any separation between each child and Mr Jama will have on the child, taking the ability to maintain contact in other ways into account.[105]
·Whether there are other people who already fulfil a parental role with respect to the minor child.[106]
[101] Direction, paragraph 8.4(4).
[102] Direction, paragraph 8.4(4) (a).
[103] Direction, paragraph 8.4(4) (b).
[104] Direction, paragraph 8.4(4) (c).
[105] Direction, paragraph 8.4(4) (d).
[106] Direction, paragraph 8.4(4) (e).
The following factors are not relevant in this matter as there is no evidence before the Tribunal that enlivens them:
·Any known views of the minor child.[107]
·Evidence that the child has been or is at risk of being subject to or exposed to family violence perpetrated by Mr Jama or has been abused or neglected in any way by Mr Jama.[108]
·Evidence that the child has suffered or experienced physical or emotional trauma due to Mr Jama’s conduct.[109]
[107] Direction, paragraph 8.4(4) (f).
[108] Direction, paragraph 8.4(4) (g).
[109] Direction, paragraph 8.4(4) (h).
The Respondent’s contentions are:[110]
·Mr Jama’s sister (Amal) has three children: KL (aged 7), KA (aged four) and KB (aged three). In his sister’s most recent statement, she states that Mr Jama has only met Layla in person before he went to prison. It is the Minister’s position that this relationship is non-parental in nature and that Mr Jama has been absent for long periods of time with limited contact through electronic means. While his sister states that he will be able to support the children financially upon his return, there is nothing to suggest he would not be able to financially support them from New Zealand. There is no independent evidence detailing any likely effects of separation on the children and there is nothing to suggest they could not maintain contact electronically like they currently do. Less weight should be allocated to the best interests of these children.
·Mr Mustafa Jama has five minor children: PR (aged 12), PD (aged 10), and three younger ones. Two of his youngest children have not met Mr Jama, but they all maintain contact by telephone. PR and PD have provided brief statements expressing their desire to see the applicant again. The Respondent Minister accepts that the children may be emotionally impacted by Mr Jama’s removal. However, less weight should be allocated to their interests in circumstances where Mr Jama has been absent for long periods, they have a parent who fulfils the parental role, the available views being from young children and the impact of removal being purely emotional.
·Ms Aideed has six minor children. In her statement, Ayaan Aideed outlines that Mr Jama has previously assisted with the children and has an important role as an uncle in Somali culture. It is the Respondent’s position that less weight should be allocated to these children in circumstances where Mr Jama has been absent from the children’s lives for a significant period of time, the children have two active parents who fulfil the parental role, the impact of separation being purely emotional and their ability to maintain relationship by electronic means.
·The Respondent Minister accepts that it is in their best interests for Mr Jama to remain in Australia, but those interests are not sufficient to outweigh the primary considerations in favour of non-revocation.
[110] Exhibit R1: Respondent’s SFIC, paragraphs [45]–[48].
Mr Lettenmaier’s contentions are:[111]
[111] Exhibit A1: Applicant’s SFIC, paragraphs [50]–[51].
·Whilst Mr Jama does not have any biological children; he has a large number of nieces and nephews in Australia many of whom he has a close relationship with. The fact that a relationship between an applicant and a child is non-parental does not mean that the Tribunal must give any such relationship less weight. The particular circumstances of each case must be taken into account.
·Mr Jama has previously taken on a parental like role for several of the children whose fathers were absent or overseas and intends continue in that role for the children.[112]
[112] Exhibit A2: Ayaan Aideed’s 24 January 2024 statement, page 67, paragraph [8]; Mr Jama’s 24 January 2024 statement, page 17, paragraph [123] and Amal Jama’s 24 January 2024 statement, page 55, paragraph [14].
·The role of an uncle is significant in Mr Jama’s family and in his culture, where aunties and uncles are expected to, and do take on a parental role for their nephews and nieces.[113]
[113] Exhibit A2: Ayaan Aideed’s 24 January 2024 statement, page 67, paragraph [8] and Mr Mustafa Jama’s 24 January 2024 statement, page 61, paragraph [13].
·Mr Jama and his nieces and nephews have as a close relationship, particularly with:
oKL.[114]
[114] Exhibit A2: Amal Jama’s 24 January 2024 statement, page 55, paragraph [8], page 56, paragraphs [18]-[19] and Mr Jama’s 24 January 2024 statement, page 3, paragraphs [18]-[19], page 16, paragraph [114].
oPR and PD Abdi.[115]
[115] Exhibit A2: Mr Jama’s 24 January 2024 statement, page 17, paragraphs [118]-[119], Mr Mustafa Jama’s 24 January 2024 statement, page 61, paragraph [10] and PR and PD’s letters to Mr Jama (attachments K and L) pages 40-43.
oMs Aideed’s children.[116]
[116] Exhibit A2: Ayaan Aideed’s 24 January 2024 statement, page 67, paragraph [8] and Mr Jama’s 24 January 2024 statement, page 17, paragraphs [122]-[123].
·Mr Jama emphasises that Amal has separated from her husband, and he has refused, or failed, to continue to support her children emotionally or materially.[117]
[117] Exhibit A2: Amal Jama’s 24 January 2024 statement, page 55, paragraphs [11]-[13].
·Mr Jama has retained contact with his nieces and nephews.[118]
[118] Exhibit A2: Amal Jama’s 24 January 2024 statement, page 55, [9]; Ayaan Aideed’s 24 January 2024 statement, page 67, paragraphs [9]-[11].
·Mr Jama’s nieces and nephews have a strong desire to see and spend time with the Applicant.[119]
[119] Exhibit A2: Ayaan Aideed’s 24 January 2024 statement, page 67, paragraph [12]; PR and PD’s letters to Mr Jama (attachments K and L), pages 40-43.
·The Respondent seeks to limit the weight attributable to this consideration on the following grounds:
oMr Jama has been ‘absent’ from his nieces’ and nephews’ lives. This is inconsistent with the evidence which is that Mr Jama maintains contact with them electronically (as accepted by the Respondent Minister at [46] of the Respondent’s Statement of Facts, Issues and Contentions). The Respondent then appears to contend that electronic communication constitutes “absence”. If the Tribunal accepts that proposition, then it is difficult to see how it could accept that electronic communication would ‘maintain contact’ for the purposes of sub-paragraph 8.4(4)(d). Mr Jama submits that he has not been absent and has maintained contact as best as he could in the circumstances.
oFlowing from that, it cannot be seriously contended that maintaining electronic contact is comparable to spending time with the children in person. The Minister appears to contend that this is acceptable because that is the ‘current arrangement’, this misconstrues paragraph 8.4 of Direction 99. The relevant question is whether the cancellation decision being revoked or not is in the best interests of the child. This requires a comparison of the effect of Mr Jama being permitted to remain in Australia as a visa holder and being removed to New Zealand and being unable to return and consideration of which of those would be in the best interests of the child. Mr Jama submits that the best of interests of the children would be served by revocation so there could be a fulsome relationship with Mr Jama.
oHis support would be limited to financial support.[120]. This ignores the content of Mr Jama’s sister’s statement that:
[120] Exhibit R1: Respondent’s SFIC, paragraph [46].
·         He would be expected to be a positive male role model to the children.[121]
·         The children consistently ask to spend time with him, often asking “where is Uncle Jamaal?”.[122]
·         The physical assistance provided through taking care of the children, babysitting, taking the children out, and assisting with school drop off and pick up.[123]
·         Amal requires additional assistance caring for her children due to KL’s additional needs.[124]
·The Minister concedes that there will be a negative impact on the children, however, unjustifiably seeks to mitigate the weight given to the consideration on the basis that impact on the children would be ‘purely emotional’.[125] There is no basis for the impact to be given less weight on the basis that the impact is purely emotional. Relevantly, s 60CC(2)(b) of the Family Law Act 1975 (Cth) expressly provides that a primary consideration in relation to the best interests of children is the need to protect them from psychological harm: see HSKJ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)[126] at [127]-[129].
·The overwhelming evidence before the Tribunal reflects the importance of close family relations in Somali culture and especially to Mr Jama’s family.
·The known views of the children are that they want Mr Jama to remain in Australia, and to be able to spend time with him.[127]
·The best interests of Mr Jama’s nieces and nephews should be given significant and strong weight in favour of revoking the cancellation.
[121] Exhibit A2: Amal Jama’s 24 January 2024 statement, page 55, paragraph [14].
[122] Exhibit A2: Amal Jama’s 24 January 2024 statement, page 55, paragraph [15].
[123] Exhibit A2: Amal Jama’s 24 January 2024 statement, page 56, paragraph [16].
[124] Exhibit A2: Amal Jama’s 24 January 2024 statement, page 56, paragraphs [18]-[19].
[125] Exhibit R1: Respondent’s SFIC, paragraphs [47]-[48].
[126] HSKJ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3981.
[127] Exhibit A2: Amal Jama’s 24 January 2024 statement, page 55, paragraphs [9] & [15]; Mr Mustafa Jama’s 24 January 2024 statement, page 64, paragraph [39]; Ayaan Aideed’s 24 January 2024 statement, page 67, paragraph [12]; PR and PD’s letters to Mr Jama (attachments K and L) pages 40-43.
Tribunal’s consideration
Acknowledging the contentions and the evidence the Tribunal makes the following points in its assessment of this consideration.
There is some evidence, particularly in relation Amal's children, of a close and loving relationship between Mr Jama and the minor children.[128] [129]
[128] Exhibit A2: Amal Jama’s 24 January 2024 statement, page 55, paragraph [9].
[129] PR and PD’s letters to Mr Jama (attachments K and L), pages 40-43.
The relationship between each of the minor children and Mr Jama is non-parental, which tempers the weight of this consideration.
A clear distinction should be made between Mr Jama’s sister’s three children and the children of his cousins. This distinction is based on the relative propinquity of the relationship and the evidence that the cousins fulfil the parental role in the case of their children. Amal is divorced which create a degree of scope for Mr Jama to take on more of a parental role with respect to her children.
Due to his time in prison and detention, Mr Jama has been curtailed and constrained, if not absent, in terms of contact with the younger relevant minor children.[130] This is likely to have affected the nature of their relationship even while Mr Jama has maintained some degree of communication via digital means.
[130] Exhibit A2: Amal Jama’s 24 January 2024 statement, page 55, paragraph [8].
Mr Lettenmaier’s argument that the Respondent’s contention regarding the conflation of Mr Jama’s absence with his digital communication is a valid one. Mr Lettenmaier’s subsequent argument that digital contact is not comparable to spending time with the minor children in person is also valid in this specific matter and goes to the extent of the potential impact on the children if Mr Jama is returned to New Zealand.
While Mr Jama’s relationship with each of the minor children is non-parental, the evidence and testimony before the Tribunal suggests that in Somali culture uncles are expected to play a significant role in relation to minor children.
The Respondent’s contention that many of the minor children involved here will only suffer a pure emotional impact if Mr Jama is returned to New Zealand oversimplifies and potentially understates the nature of the impact on each relevant child's best interests.
The Respondent has not addressed or qualified the extent to which Mr Jama can provide significant and substantial support to his sister Amal in taking care of her three children, especially KL with her special and additional needs as an autistic individual, if he is returned to New Zealand.
Drawing these points together, the Tribunal considers that Mr Jama has relationships with many, if not all, of the relevant children, that there is no evidence that his prior conduct has impacted adversely on the children, and that the consequential separation if he is returned to New Zealand is likely to have a negative, albeit unquantifiable, impact on each relevant child. In terms of the potential for Mr Jama playing a positive parental role, Amal’s children have between approximately eight and 14 years before they turn 18.
Conclusion: Primary Consideration 4: Best interests of minor children in Australia affected by the decision.
This consideration carries a strong weight towards setting aside the delegate’s decision.
Primary Consideration 5: Expectations of the Australian community

Paragraph 8.5(1) of the Direction provides:
‘The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.’
In addition to the guidance provided by paragraph 8.5(1) of the Direction, paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences in question are such that the Australian community would expect that the person should not be granted or continue to hold a visa.
In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns because of conduct in Australia or elsewhere, of the following kinds:
(a)acts of family violence;
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties;
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery;
(f)worker exploitation.
Paragraph 8.5(3) of the Direction provides that the above expectations apply, regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
As with Paragraph 8.5(4) of the Direction, this consideration is ‘about the expectations of the Australian community as a whole’, and decision makers are to proceed based on the Government’s views as articulated in the Direction, without independently assessing the community’s expectations.
Clause 8.5(4) of the Direction correlates with the reasoning of the Full Court of the Australian Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (‘FYBR’).
Notwithstanding the different pathways in judicial reasoning, the plurality of the Court in FYBR held that ‘Expectations of the Australian community’ is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.[131]
[131] FYBR (2019) 272 FCR 454 (‘FYBR’), at 471–2 [66] (Charlesworth J), and 476 [91] (Stewart J).
The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[132]
[132] Ibid at 473 [75]– [76] (Charlesworth J).
The Tribunal notes the High Court of Australia refused an application for special leave to appeal from the orders in FYBR, holding at [301]–[303] that ‘there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court.’[133]
[133]FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56.
Observing the norm stipulated in paragraph 8.5(1), the Tribunal now considers the guidance provided by paragraphs 5.2(2) to (6) of the Direction.
2Non-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.
3The 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 risk of causing physical harm to the Australian community.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
5With respect to decisions to refuse, cancel, and revoke cancellations 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.
6Decision-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) 8.4(2) (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 risk of causing physical harm to the Australian community.
The Respondent contends:[134]
·Observing the norm stipulated in paragraph 8.5(1), and in accordance with the guidance provided by Principles 5.2(1)-(5) of Direction 99, the Australian community would expect that Mr Jama should not continue to hold a visa on account of the nature of the character concerns and offences.[135]
·Overall, the Respondent contends that this primary consideration weighs very heavily against revocation.
[134] Exhibit R1: Respondent’s SFIC, paragraphs [52]–[54].
[135] And with reference to Ismail v Minister of Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 at paragraphs [51]–[52].
Mr Lettenmaier contends that:[136]
·Mr Jama has spent significant time in the Australian community where he has positively contributed to the community[137], suggesting the Australian community would have a higher tolerance towards his offending, per 5.2(5) of Direction 99.
·Mr Jama’s Visa was a Class TY Subclass 444 Special Category (Temporary) visa until it was cancelled. Although a temporary visa, his Visa allowed him to remain in Australia indefinitely and cannot be classified as a limited stay visa for the purposes of sub-paragraph 5.2(4) of Direction 99. This implies that the lower tolerance for offending considered in the sub-paragraph does not apply.[138]
·Given the lack of history of violent offending, the circumstances in which the offending occurred, and the low risk of reoffending, it cannot be said that circumstances exist which make the Applicant’s conduct ‘so serious that even strong countervailing considerations’ would be insufficient, per 5.2(6) of Direction 99.
[136] Exhibit A: Applicant’s SFIC, paragraph [52] and Exhibit A3: Applicant’s Reply, paragraphs [18]–[19].
[137] As noted in Exhibit A1: Applicant’s SFIC, paragraphs [44]-[46].
[138] See Su’A and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 48 (22 January 2024), [159]-[160].
The Tribunal has found that Mr Jama has committed a violent crime against a woman. Paragraph 8.5(2) of the Direction is enlivened.
The next question is whether there are any factors which modify the Australian community’s expectations.
This question is informed by the principles in paragraphs 5.2(4) to (6) of the Direction. In summary these are:
·Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa.
·The Australian community has a low tolerance of criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time.
·In relation to decisions to refuse, cancel and revoke cancellations of visas, 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 this tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
·the nature of a 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 a visa outcome that is not adverse to the non-citizen.
·In particular, the inherent nature of certain types of conduct mentioned in paragraph 8.5(2) (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 risk of causing physical harm to the Australian community.
Paragraph 8.5(3) provides that the Australian community's expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. The Direction further explains at Paragraph 8.5(4):
‘This consideration is about the expectations of the Australian community as a whole, and in this respect, decision – makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.’
Sub-paragraph 5.2(4) uses the term ‘limited stay visa’ which is not defined in the Act. The Act does however create a taxonomy of visas. Relevantly for present purposes, Section 30 of the Act contemplates both (1) ‘permanent’ visas, which permit a right to remain, ‘indefinitely’; and (2) ‘temporary visas’, which provide a conditional right to remain. ‘Limited stay’, as used in the Direction, seems to be a reference to non-permanent or ‘temporary’ visas.
Tribunal’s consideration
Mr Jama’s Visa was a Class TY Subclass 444 Special Category (Temporary) visa until it was cancelled. Although a temporary visa, his Visa allowed him to remain in Australia indefinitely as long as he remained a New Zealand citizen and cannot be classified as a limited stay visa.[139]
[139] Migration Regulations 1994 (Cth), reg 444.511.
This implies that sub-paragraph 5.2(4)’s low tolerance does not apply.
Mr Jama has lived in Australia since he was 17 and committed his Index Offence approximately 8 years and 2 months later. In his time in the Australian community, Mr Jama has made some contributions to that community as a worker and as a volunteer.
Australia may 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. Mr Jama has lived nearly half his life in Australia and commenced living here during the latter part of his formative years. These facts afford him a higher level of tolerance.
The Tribunal has found Mr Jama ’s offending conduct to be very serious.
The Tribunal also observes the requirements of paragraph 8.4(3) of the Direction which dictate that the expectations of the Australian community apply regardless of whether a non-citizen poses a measurable risk of causing physical harm to the Australian community. The Tribunal has found above that Mr Jama poses a small risk of re-offending.
The Tribunal is satisfied that Mr Jama has breached the Australian community’s expectations by his criminal offending which involved serious breaches of Australian laws. The Australian community, ‘as a norm’ expects the Australian Government not to allow him to remain in Australia. This expectation is modified by the higher tolerance assessed above.
Conclusion: Primary Consideration 5: Expectations of the Australian community
The Tribunal finds that this consideration carries a significant but not strong weight in favour of affirming the delegate’s decision.
OTHER CONSIDERATIONS
The Tribunal now considers each of the four sub-paragraphs (a), (b), and (c) set out in Other Considerations listed in paragraph 9 of the Direction.
Other Consideration (a): Legal consequences of the decision
Paragraph 9.1 of the Direction directs a decision-maker to consider the following:
1Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen.
2A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
3International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
9.1.1 Non-citizens covered by a protection finding
1Where a protection finding (as defined in section 197C of the Act) has been made for a non-citizen in the course of considering a protection visa application made by the non-citizen, this indicates that non-refoulement obligations are engaged in relation to the non-citizen.
2Section 197C(3) ensures that, except in the limited circumstances specified in section 197C(3)(c), section 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made for the non-citizen in the course of considering their application for a protection visa. This means the non-citizen cannot be removed to that country in breach of non-refoulement obligations, even if an adverse visa decision under section 501 or 501CA is made for the non-citizen and they become, or remain, an unlawful non-citizen as a result. Instead, the non-citizen must remain in immigration detention as required by section 189 unless and until they are granted another visa or they can be removed to a country other than the country by reference to which the protection finding was made.
3Decision-makers should also be mindful that where the refusal, cancellation or non-revocation decision concerns a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations.
9.1.2 Non-citizens not covered by a protection finding
1Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.
2However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person’s representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.
3Non-refoulement obligations that have been identified for a non-citizen with respect to a country, via an International Treaties Obligations Assessment or some other process outside the protection visa process, would not engage section 197C(3) to preclude removal of the non-citizen to that country. In these circumstances, in making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct. However, that does not mean an adverse decision under section 501 or 501CA cannot be made for the non-citizen. A refusal, cancellation or non-revocation decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the noncitizen makes a valid application for a protection visa, the non-citizen would not be liable to be removed while their application is being determined.
Tribunal’s consideration
While not raised by Mr Jama as ‘another reason’ for why the cancellation decision should be revoked, a consequence of the Tribunal affirming the delegate’s decision is that Mr Jama will liable to removal from Australia as soon as reasonably practicable (ss 189 and 198 of the Act), and will not be able to apply for another visa while in Australia (with the exception of a protection visa) in accordance with s 501E of the Act.[140]
[140] See also Rana and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1327 at [209].

Mr Lettenmaier contends that this consideration is not relevant.[141]
[141] Exhibit A1: Applicant’s SFIC, page 15, paragraph [53].
The Respondent submits that this legal consequence neither weighs for nor against revocation of the delegate’s decision.[142]
Tribunal finding: Other Consideration (a): Legal consequences of the decision
[142] Exhibit R1: Respondent’s SFIC, page 15, paragraph [58].
The Tribunal considers that this Other Consideration (a) carries a neutral weight.
Other Consideration (b): Extent of impediments if removed
Clause 9.2(1) of the Direction provides:
1Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to them in that country.
The Respondent’s contentions
The Respondent contends:[143]
·Mr Lettenmaier contends that Mr Jama would face significant impediments given he has no familial, social or community connections in New Zealand.
·While he may face emotional hardships in re-establishing himself, there is nothing preventing him from establishing a basic living standard in New Zealand.
·Mr Jama is in his early 30s and has a history of bipolar (not clinically assessed), anxiety, adjustment disorder and depression. He has also recently had several surgeries relating to an anal fistula that became infected. There is nothing to suggest that he would not have access to adequate medication, treatment and services in New Zealand to address his physical and mental health issues.
·He has declared that he has been employed in a variety of different roles while in Australia. The skills he has developed from that work would appear to be transferrable to New Zealand.
·He first arrived in Australia when he was 17 and has lived here permanently since he was 20.[144] He migrated to New Zealand from Somalia when he was nine years old. There is no substantial language or cultural barriers for Mr Jama to overcome and as a New Zealand citizen, he has the same access to social, medical and economic support as other citizens.
·There are very limited impediments to Mr Jama being removed to New Zealand. Any difficulties he may face in re-establishing himself in New Zealand would be temporary. At most, this consideration weighs minimally in favour of revocation.
[143] Exhibit R1: Respondent’s SFIC, page 15, paragraph [61] – [65].
[144] Exhibit R3: page 426.
The Applicant’s contentions
Mr Lettenmaier contends that:[145]
[145] Exhibit A1: Applicant’s SFIC, page 16, paragraphs [54]–[55] and Exhibit A3: Applicant’s Reply, page 10, paragraphs [20]–[21].
·Mr Jama contends that if he was to be removed to New Zealand he would face significant impediments given he has no familial or social relationships there, including his mosque. He emphasises the following impact removal would have on his mental health:[146]
[146] Exhibit A2: Mr Jama’s 24 January 2024 statement, pages 18-19, [130]-[131] and [136].
‘If I am deported, my mental health would be hugely impacted. I will be lonely, as everyone I know is here in Australia. I am scared of being lonely. I know it will be very hard to adjust to the reality of deportation and life without my family and community. I have previously struggled with thoughts of self-harm, and I think that being further separated from the support of my friends and family will have these thoughts increase.
I want to be able to spend the remaining time with [Mr Jama’s mother], especially given my experience with not being able to say goodbye to my dad. It’s important that I am able to see her in that time. I would feel this is the end of my life, if I was unable to farewell my mum as well. …’
and
‘I will not be able to live without my mum and my family. Being deported would be a really dark hole for all of us.’
·The Respondent contends that there are limited impediments to Mr Jama being removed to New Zealand. Mr Jama references his Statement of Facts, Issues & Contentions[147] and notes that Mr Cummins’s report:[148]
‘Based upon my assessment of Mr Jama, it is my opinion his mental health would inevitably deteriorate if he were directed to depart Australia and return to live in New Zealand where he would be separated from his mother and siblings.’
·This consideration should be given some weight in favour of setting aside the delegate’s decision.
[147] Exhibit A1: Applicant’s SFIC, page 16, paragraph [54].
[148] Exhibit A4: Applicant’s Supplementary Tender Bundle, page 16, paragraph [75].
Tribunal’s consideration
This aspect of the Direction requires the Tribunal to assess and consider the extent of any impediments that Mr Jama, if removed from Australia to New Zealand, will face in establishing himself and maintaining basic living standards taking the specific factors below into account.
Sub-paragraph 9.2(1)(a) – the non-citizen’s age and health
Mr Jama is 33 years old.
Mr Jama appears generally in physical good health, acknowledging his anal fistula and subsequent infection. His mental health is of concern for the reasons noted in both parties’ contentions above.
Given his mental health history and acknowledging the Federal Court’s decision in Holloway v Minister for Immigration, Citizenship and Multicultural Affairs,[149] the Tribunal considers that Mr Jama faces a risk that the stresses and emotional hardships he will likely face if removed to New Zealand could cause mental health issues. Balanced against this risk is that Mr Jama, as a New Zealand citizen, can avail himself of the same level of mental health care as other New Zealand citizens.
[149] Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126.
Mr Cummins’ opinion regarding the likely deterioration of his mental health if separated from his mother and siblings is pertinent in assessing this consideration.
Sub-paragraph 9.2(1)(b) – any substantial language or cultural barriers
The Tribunal considers that Mr Jama, based on his oral testimony and the evidence before the Tribunal, would face few, if any linguistic difficulties if he returned to New Zealand.
The Tribunal also considers that Mr Jama is unlikely to face significant cultural issues for the same reason. The Tribunal acknowledges the Applicant’s SFIC’s contentions of emotional distress, as distinct from Mr Jama’s mental health, but observes that these are more personal issues than cultural ones.
Given the evidence of Mr Jama’s community involvement and work history in Australia and his age, the Tribunal considers that he would be able to overcome any cultural barriers that arise.
Sub-paragraph 9.2(1)(c) - any social, medical and/or economic support available to them in that country
The Tribunal considers that, based on the evidence, Mr Jama would have access to the same medical, social and economic support as that available to other New Zealand citizens.
Balanced against this, the Tribunal again raises the Federal Court’s decision in Holloway v Minister for Immigration, Citizenship and Multicultural Affairs in relation to the likelihood that Mr Jama’s mental health may pose an impediment.[150]
[150] Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126.
The Tribunal must consider both Mr Jama ’s health as broadly construed, and any social, medical and/or economic support available to him in New Zealand if he is returned there. To quote from Justice Colvin’s decision in Holloway:[151]
‘Used in the phrase “age and health”, the word health would ordinarily be understood to mean any aspect of a person's physical wellbeing and would include the overall state of a person's fitness and condition, including underlying health issues and ongoing effects of any past injury. Within ordinary parlance, a person's status as having a history of substance abuse, especially where there was evidence from which it may be concluded that there was a real risk of relapse into misuse of substances to such an extent that it would be an impediment to a person being able to establish and maintain basic living standards, is aspect of that person's overall health.’
and
‘The error by the Tribunal was to confine the term “health” to only include currently manifested health issues and difficulties.’[152]
and
‘Of course, there may be reasons why an underlying condition which is being managed or which is in remission or for which there is effective treatment may not be likely to manifest as an impediment.’[153]
[151] Op.cit. paragraph [12].
[152] Ibid, paragraph [13].
[153] Ibid, paragraph [15].
On the basis of Mr Cummins’ opinion, Mr Jama’s mental health would be better treated by remaining in Australia than by being returned to New Zealand and separated from his mother and family. Rather than a relapse, Mr Cummins’ evidence suggests a worsening or deterioration of his mental health if he is returned to New Zealand. This would be an impediment to Mr Jama being able to establish and maintain basic living standards in New Zealand.
Tribunal’s analysis and consideration
The Tribunal has considered above the extent of any impediments that Mr Jama, if removed from Australia to New Zealand, will face in establishing himself and maintaining basic living standards, considering the specific factors set out in paragraph 9.2(1).
Tribunal finding: Other Consideration (b): Extent of impediments if removed.
Having regard to the analysis referrable to each of the three sub-paragraph components of this other consideration (b), the Tribunal finds that Mr Jama would face a level of emotional, practical, financial and medical hardship if he was returned to New Zealand.
The expert evidence before the Tribunal shows an increased risk of a mental health deterioration if Mr Jama is returned to New Zealand.
This consideration carries moderate weight in favour of setting aside the delegate’s decision.
Findings: Other Considerations
The Tribunal now summarises the respective weights it has allocated to each of the Other Considerations (specified in the Direction) relevant in this matter:
Other Consideration (a): Legal consequences of the decision:
·This consideration has neutral weight.
Other Consideration (b): Extent of impediments if removed:
·This consideration carries moderate weight in favour of setting aside the delegate’s decision.
ADDITIONAL CONSIDERATIONS
The Direction does not limit the other considerations to those listed in the Direction (paragraph 9(1) of the Direction).[154]
[154] Per Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471.
There are no additional considerations before the Tribunal in this matter.
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, Mr Jama does not pass the character test.
In determining whether there is ‘another reason’ to revoke the cancellation decision, the Tribunal has applied the Direction to this matter’s specific circumstances.
With regards to the relevant Primary Considerations in this matter, the Tribunal finds as follows:
Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct:
·This consideration weighs in favour of affirming the delegate’s decision.
Primary Consideration 3: The strength, nature and duration of ties to Australia:
·This consideration carries strong weight towards setting aside the delegate’s decision.
Primary Consideration 4: Best interests of minor children in Australia affected by the decision:
·This consideration carries a strong weight towards setting aside the delegate’s decision.
Primary Consideration 5: Expectations of the Australian community:
·This consideration carries a significant but not strong weight in favour of affirming the delegate’s decision.
The Tribunal has set out the weight attributable to the other considerations above.
The Tribunal has assessed and considered all the weights it has identified, applying the process outlined in Demir v Minister for Immigration, Citizenship and Multicultural Affairs at [21]:[155]
‘The metaphor of “weighing” relevant considerations should not be taken too literally. The exercise is not mathematical and cannot depend on the simple aggregation of factors on each side of a ledger. The conclusion as to whether there is “another reason” for the purposes of s 501CA(4)(b)(ii) necessarily involves persuasion of a human decision-maker, whose thought processes cannot be reflected in lines of code, as to what is the right result in the circumstances. That persuasion flows from the decision-maker’s personal understanding as to the significance of each of the factors they are required or permitted to take into account, in the light of all the material they have considered. So much is consistent with the decision-maker’s duty to “call his own attention to the matters which he is bound to consider” (Peko-Wallsend at 39 (Mason J), quoting Wednesbury at 229 (Lord Greene MR)) and to give “proper, genuine and realistic consideration to the merits of the case” (Khan v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, Gummow J, 11 December 1987; noted [1987] FCA 457; (1987) 14 ALD 291, 292). Correspondingly, the statutory specification of mandatory considerations requires those considerations to be taken into account, but not necessarily to be given any particular degree of weight: Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1758; 176 FCR 153 at [110] (Rares J) (varied on appeal (Australian Competition and Consumer Commission v Telstra Corporation Ltd [2009] FCAFC 68; 176 FCR 203), but not on this point).’
[155] Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870.
A comprehensive, holistic and integrated view of the Primary Considerations and the Other Considerations leads this Tribunal to a finding that it is satisfied that there is another reason to revoke the mandatory cancellation of Mr Jama’s Visa. Accordingly, the Tribunal makes a finding setting aside the delegate’s decision to not revoke the cancellation of Mr Jama ’s Visa and substituting a decision revoking the original visa cancellation.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review and substitutes a decision revoking the original visa cancellation.

I certify that the preceding one hundred and eighty seven paragraphs (187) paragraphs are a true copy of the reasons for the decision herein of Member D. Cosgrave

...........[SGD]............
Associate
Dated: 17 May 2024

Dates of hearing: 13^th, 14^th & 15^th of March 2024

Counsel for the Applicant: Mr Thomas Lettenmaier

Solicitors for the Applicant: Ms Arti Chetty and Mx Nicholas Vialle

Solicitor for the Respondent: Mr Chris West of Sparke Helmore Lawyers
ANNEXURE A – EXHIBIT REGISTER

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

A1.

Applicant’s SFIC

A

25.01.2024

25.01.2024

A2.

Applicant’s Tender Bundle

A

various

25.01.2024

A3.

Applicant’s Submissions in Reply

A

06.03.2024

06.03.2024

A4.

Applicant’s Supplementary Tender Bundle

A

various

06.03.2024

R1.

Respondent’s SFIC

R

22.02.2024

22.02.2024

R2.

Respondent’s Further Tender Bundle

R

various

26.02.2024

R3.

Remittal Bundle (G-Docs)

R

various

30.11.2024

Date	Event
29 January 2017	Mr Jama committed the Index Offence.[18]
30 January 2017	Mr Jama was arrested, remanded in custody and was subsequently granted bail on 31 May 2017.[19]
29 July 2017	Mr Jama was remanded in custody and released on 31 July 2017.[20]
30 October 2017	Mr Jama was remanded in custody after breaching his bail conditions and released on 9 March 2018.[21]
18 April 2019	Mr Jama was fined $200 for No Authority To Drive (Fines Suspended).[22]
2 May 2019	Mr Jama was fined $200 for No Authority To Drive (Fines Suspended).[23]
8 August 2019	Mr Jama was convicted of the Robbery by a jury and remanded in custody to await sentencing.[24]
12 November 2019	Mr Jama was sentenced to 4 years’ imprisonment commencing 21 November 2018 at the Crown’s suggestion.[25]
4 November 2020	Mr Jama was granted parole.[26]
19 November 2020	Mr Jama was released from prison.[27]

Dates of hearing:	13^th, 14^th & 15^th of March 2024
Counsel for the Applicant:	Mr Thomas Lettenmaier
Solicitors for the Applicant:	Ms Arti Chetty and Mx Nicholas Vialle
Solicitor for the Respondent:	Mr Chris West of Sparke Helmore Lawyers

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT		DATE RECEIVED
A1.	Applicant’s SFIC	A	25.01.2024	25.01.2024
A2.	Applicant’s Tender Bundle	A	various	25.01.2024
A3.	Applicant’s Submissions in Reply	A	06.03.2024		06.03.2024
A4.	Applicant’s Supplementary Tender Bundle	A	various		06.03.2024
R1.	Respondent’s SFIC	R	22.02.2024		22.02.2024
R2.	Respondent’s Further Tender Bundle	R	various		26.02.2024
R3.	Remittal Bundle (G-Docs)	R	various		30.11.2024