JSMJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs - [2021] AATA 4183

JSMJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4183 (12 November 2021)
Division:GENERAL DIVISION
File Number: 2021/5975
Re:JSMJ
APPLICANT

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

DECISION
Tribunal:Member Rebecca Bellamy
Date:12 November 2021
Place:Brisbane

The decision under review is affirmed.
..............................[SGD]..........................................
Member Rebecca Bellamy
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class XB Subclass 200 Refugee visa - where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 – consideration of Australia’s international non-refoulement obligations where receiving country is Burundi – decision under review affirmed
LEGISLATION
Criminal Code 1899 (Qld)
Migration Act 1958 (Cth)
CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
FYBR v Minister for Home Affairs [2019] FCAFC 185
Minister for Home Affairs v Buadromo [2018] FCAFC 151
STZS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1140
SECONDARY MATERIAL
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December1984, 1465 UNTS 85 (entered into force 26 June 1987).
Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) amended by the Protocol Relating to the Status of Refugees, opened for signature 31 July 1967, 606 UNTS 267 (entered into force 4 October 1967).
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
Q.A v. Sweden CCPR/C/127/D/3070/2017, UN Human Rights Committee (20 February 2020)
REASONS FOR DECISION
Member Rebecca Bellamy
12 November 2021
THE ISSUE BEFORE THE TRIBUNAL

The Applicant’s parents are from Burundi. He was born in a Tanzanian refugee camp in 1994.[1] In April 2006, when he was approximately 12 years old, he and his family moved to Australia. The most recent visa granted to him was a Class XB Subclass 200 Refugee visa (“visa”).[2]
[1] There is some uncertainty about the Applicant’s age. It was originally recorded as 1990 and later thought to be 1994. His exact day and month of birth are also unknown.
[2]···· Exhibit G1, Section 501 G documents, G8 page 343.
On 9 February 2021, a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test and he was serving a full time custodial sentence.[3] On 12 February 2021, the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”).[4] On 19 August 2021, the Respondent decided not to revoke the cancellation.[5]
[3]···· Exhibit G1, Section 501 G documents, G2 pages 240 to 247.
[4]···· Exhibit G1, Section 501 G documents, G2, pages 54 to 75.
[5]···· Exhibit G1, Section 501 G documents, G2 page 14.
The Applicant subsequently lodged an application for review in this Tribunal on 27 August 2021.[6] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
[6]···· Exhibit G1, Section 501 G documents, G1, pages 3 to 9.
The hearing of this application took place on 25 and 26 October 2021. The Applicant gave evidence via videoconference. The Applicant’s sister, his brother and a friend gave evidence by telephone. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. If either of paragraphs (i) or (ii) are satisfied, I should revoke the original decision.[7]
[7] Minister for Home Affairs v Buadromo [2018] FCAFC 151.
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 13 February 2018, the Applicant was sentenced to a term of imprisonment of two years (with an additional term of 12 months to be served concurrently). He was immediately released on parole because of time served on remand, however what matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they have actually served.[8] Accordingly, there is no doubt that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. He cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
[8] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416.
Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) applies.[9]
[9] On 1 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, Paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of Part 2 of the Direction.
Those principles may be briefly stated as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, 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, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in Paragraph 8.4(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 measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account. They are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. They are:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community, including:
i)strength, nature and duration of ties to Australia; and
ii)impact on Australian business interests
I note that Paragraph 7(2) provides that the primary considerations should generally be given greater weight than the other considerations, and Paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.
BACKGROUND AND OFFENDING
The Applicant was born in a refugee camp in Tanzania. He does not know his exact date, or year of birth and he does not have a birth certificate. His year of birth has been estimated to be 1994. His parents were both Burundi citizens who fled Burundi prior to his birth as a result of the civil war. The Applicant lived with his parents, two brothers and sister in the camp until 2006 when the family moved to Australia, having been granted refugee visas.
The Applicant attended school in Australia, graduating from Grade 12 in 2012. He said in a statement attached to his revocation request that, after completing high school, he started socialising with a group of people who were interested in consuming alcohol, going out and partying. He began drinking alcohol frequently and misbehaving. He never engaged in drug taking, alcohol was the main problem.[10] The Applicant did not have a job until late 2018, although he engaged in some “work for the dole” and did some vocational courses.
[10] Exhibit G1, Section 501 G documents, G2, page 76.
The Applicant commenced offending in April 2013 when he committed an assault/obstruct police offence. He was approximately 19 years old at that time. He committed two further offences in April 2013, being contravene direction or requirement and possess tainted property. He was sentenced to fines for each of these offences.[11]
[11] Exhibit G1, Section 501 G documents, page 40.
In June 2013 he committed stealing and common assault and was sentenced on 11 June 2014 to 18 months’ probation.[12]
[12] Exhibit G1, Section 501 G documents, G2 page 40
The Applicant recalls doing an Alcoholics Anonymous course for two or three weeks at this time probably as part of his probation. However, according to him, he did not pay attention, he found it difficult to understand and it was unhelpful.[13]
[13] Transcript, page 74, line 42 to page 75, line 21.
In August 2014, while subject to the probation order, the Applicant assaulted a female victim by punching and kicking her.
When he was sentenced for this offence, the learned Magistrate made the following findings of fact:
Now, in relation to the assault itself and the assault occasioning bodily harm, I accept there is a lead-up. I do get that. You were at the house. Things were occurring there. You moved to the park. This other person, the complainant, says something bad, I accept it was bad, and you erupt. You blow up as a result of that. I get that. I understand that. You threw one punch. Well, that is cowardly. She is a female. It is a coward’s – it is a coward punch. Then you kick her. That is outrageous. It is not tolerable in any society whatsoever.
…
It would appear in relation to you that alcohol has been an issue in the past and you tell me that alcohol is no longer an issue. I will treat that with a grain of salt. I am told that you are ashamed of your behaviour and I agree what was said initially, that you were trying to defuse this situation and you reacted as a result of a comment made. You reacted what is called way disproportionately. The punch was bad enough, but then the kick. That is just cowardly. It is outrageous.[14]
[14] Exhibit G1, Section 501 G documents, G2 page 51.
In a statement attached to his revocation request, the Applicant said the victim, “Ms Q”, had been trying to start a fight with, and was making offensive comments to, his then partner, “Ms E”. Ms E was pregnant at the time.[15] He said he had “tried to defend” Ms E but he “took it too far”. He said he realised it was wrong to assault the victim and he regretted it.[16]
[15] Exhibit G1, Section 501 G documents, G2, page 76.
[16] Exhibit G1, Section 501 G documents, G2, page 76.
In the hearing, the Applicant said he and Ms E were both home when Ms Q came knocking on the door and yelling, calling out to Ms E that she wanted to fight with her. The Applicant told her Ms E was pregnant, but she said did not care. Ms Q pushed Ms E and the Applicant slapped her. He initially said he did not remember kicking her. He characterised his assault on Ms Q as protecting Ms E because she was pregnant, saying he was worried and scared that something might happen to her.[17] When prompted by his lawyer, he added that he was also protecting his unborn child, and he said he would not have committed the assault if Ms E had not been pregnant.[18] He said he was not affected by alcohol on this occasion.[19] It appears that the learned Magistrate’s reference to past problems with alcohol was a reference to conduct prior to this assault.
[17]    Transcript, page 10, lines 9 to 35.
[18]    Transcript, page 10, lines 36 to 38.
[19]    Transcript, page 11, lines 25 and 26
In cross-examination, it was put to the Applicant that, according to the sentencing remarks, the assault happened in a park. He said it was actually in the street, that they had moved away from his home, and when Ms Q was trying to push Ms E he said something to the effect of “Let’s move out of here let’s go, let’s move somewhere else”. He said they went for a walk, Ms Q said something to him, and he slapped her and she fell down.[20] He did not give a convincing explanation of why he did not simply tell Ms Q to leave, and not open the door to her. Rather, he said he was not aware that Ms Q wanted to fight until both he and Ms E were outside the door.[21] He then said Ms Q never went inside the unit, she was always outside.[22] This differed from his evidence in chief in which he said Ms Q was knocking on the door, calling to Ms E that she wanted to fight. It also raises the question of why he and Ms E did not go back inside and lock the door.
[20]    Transcript, page 38, lines 8 to 40.
[21]    Transcript, page 40, lines 25 to 35
[22]    Transcript, page 41, lines 1 to 3.
I found the Applicant’s version implausible, and I do not accept it. I am satisfied that events unfolded the way the learned Magistrate recounted, namely that Ms Q said something that upset the Applicant and he responded by punching and kicking her. I do not accept that the Applicant assaulted Ms Q to protect Ms E and his unborn child.
The Applicant’s son was born in October 2014.[23] According to the Applicant, when he and Ms E were in a relationship, they lived together with his parents except for a period of around six months when they had their own place. They moved out when Child A was around five months old. In both residences, the applicant would have his friends over to drink alcohol. He said the only place he could drink was his home because he did not want to drink in public for fear of getting into trouble and he was not allowed to drink at his friends’ houses because their parents were very strict. Ms E did not like him drinking with friends in their home, and when he did that at his parents’ home, he and his friends would be downstairs, away from his family.[24]
[23] Exhibit G1, Section 501 G documents, G2, page 68
[24] Transcript, page 15, line 12 page 16, line 14; page 18, line 22 page 19, line 40.
On 3 February 2015 the Applicant was sentenced to six months imprisonment for the assault on Ms Q and immediately released on parole. The Magistrate refused to impose a non-custodial sentence stating:
“I have heard a report…today in relation to your response to supervision. You say it is unfair. It is bullshit according to the program that you have been released on. Now, let us not forget, Defendant, you consented to that probation order so it is not bullshit. You consented to it and you will comply with it in every way, shape and form because if you do not, you are going back to the Court that imposed that order and you will be resentenced all over again and you do not seem to get that, Defendant. In relation to the matter, your response to supervision, in my opinion, has been nothing short of disgraceful. You have shown nothing but contempt for the order and for the probation and parole officers who were trying to supervise that order which has been imposed not by them but the Court.” [25]
[25] Exhibit G1, Section 501 G documents, G2 page 51.
The Magistrate warned the Applicant that that his parole could be suspended or cancelled at any time if he did not comply with it and he would go straight into custody. The Applicant said he understood.[26] He was also convicted on breaching the probation order and fined.
[26] Exhibit G1, Section 501 G documents, G2 page 53.
In the hearing, I asked what part of probation he considered to be “bullshit”. While he initially did not seem sure, it emerged that he did not like having to report every two weeks because it involved walking to the bus, buying a ticket and taking a 20 minute bus ride.[27]
[27] Transcript, page 44, lines 6 to 46.
At an unknown time in 2014 or 2015 a domestic violence order was put into place between the Applicant and Ms E, protecting Ms E. On 7 October 2015, the Applicant breached that order. The Applicant’s behaviour was recounted by a District Court judge in 2018. According to His Honour, the Applicant and Ms E were arguing, the Applicant grabbed her mobile phone and smashed it on the ground. The police were called, and the Applicant was aggressive and abusive to officers upon arrival, kicking an officer in the jaw during a struggle.[28]
[28] Exhibit G1, Section 501 G documents, G2 page 42.

In a statement attached to the Applicant’s revocation request, he said Ms E called the police and accused him of slapping her and pushing her. He recalled pushing her but did not recall slapping her, although he might have. He said it was no way to treat a loved one.[29] In the hearing, the Applicant said that at the time he was young and immature and always “getting on the piss” and could not control it. He said he and Ms E were always having arguments and he was pushing her around.[30] He admitted to having smashed Ms E’s mobile phone.[31]
[29]    Exhibit G1, Section 501 G documents, G2, page 76 lines 9 to 15.
[30]    Transcript, page 11, lines 10 to 21.
[31]    Transcript page 49.
In relation to his assault on the police officer, the Applicant claimed that he wanted to stay and sleep as he was drunk and he did not see any reason he had to be taken away. The officer dragged him out and pushed him into a police vehicle. The officer had his arm around the Applicant’s neck and the Applicant kicked him because he could not breathe - he had no other option. After the kick, the officer let go of the Applicant’s neck. The Applicant did not convincingly explain how he was physically able to kick the officer in the jaw while the officer had his arm around his neck.[32] Nor was there any mention of the officer having his arm around the Applicant’s neck in the remarks of the Magistrate who sentenced the Applicant for this offence. I reject the Applicant’s explanation.
[32] Transcript, page 50, lines 1 to 13; page 50, line 43 to page 52, line 31.
On 5 November 2015, the Applicant again contravened a domestic violence order by assaulting Ms E. He had come home and, upon finding that Ms E had not prepared dinner for him, he slapped her and pulled her hair.[33]
[33] Exhibit G1, Section 501 G documents, G2 pages 42 and 48.
In the hearing, the Applicant said he came home hungry and, in his culture, if you have a wife, she should cook for you. Ms E had not cooked anything for him so he got mad.[34] The Applicant had spent the day drinking with friends while his son was at his mother’s house.[35] He agreed that he had slapped Ms E and pulled her hair.[36] He now acknowledges that his attitude was disrespectful and he said he hates himself for it.[37]
[34]    Transcript, page 53, line 42 page 54, line 2.
[35]    Transcript, page 54, lines 4 to 16.
[36]    Transcript, page 55, lines 1 to 7.
[37]    Transcript, page 54, lines 29 to 30.
On 4 December 2015, the Applicant contravened a direction or requirement. He was fined for that on 14 January 2016. In the hearing the Applicant said he thought that might have related to him being drunk on a train.[38]
[38] Transcript, page 48, lines 1 to 15.
On 23 January 2016, the Applicant committed assault or obstruct officer in public place while adversely affected by intoxicating substance, and he received a fine for that on 16 February 2016. On 24 March 2016, the Applicant was dealt with for having breached the probation order that had been imposed on 11 June 2014, and fined.
On 13 July 2016, the Applicant was sentenced for the October 2015 assaults on Ms E and a police officer and the November 2015 assault on Ms E. For the October 2015 offending, being contravention of domestic violence order, assault or obstruct police officer (x2), and commit public nuisance, he was sentenced to three months’ imprisonment with immediate release on parole. For the November 2015 offending, being contravention of domestic violence order, he was also sentenced to a concurrent term of nine months’ imprisonment, with immediate release on parole.
The learned Magistrate made the following remarks when passing sentence:
“Members of the community are often reluctant to become involved in the personal relationships of others where domestic violence is concerned. Perpetrators of domestic violence often fail to have insight into the seriousness of their offending, and your conduct on the first occasion is simply appalling, coming home taking issue with the fact that your dinner had not been cooked by the aggrieved. Domestic violence has a deleterious ongoing impact, not only on the immediate victim but on the victim’s wider family and ultimately on the whole of society. It is not solely a domestic issue, it is a crime against the State, warranting salutary punishment. Perpetrators of serious acts of domestic violence must know that society will not tolerate such behaviour and they can expect the Courts to impose significant penalties, including sentences of imprisonment involving actual custody to deter not only individual offenders but also others who might otherwise think they can commit such acts with near impunity.
You have no prior or offences against the domestic violence legislation. You will not have two convictions recorded in your name today. If you come back before any Court in the future for breaches of domestic violence, you will now face up to five years imprisonment and you will serve actual time.”[39]
[39] Exhibit G1, Section 501 G documents, G2, page 48.
The Magistrate warned the Applicant that if he did not comply with parole or he committed further offences he would go straight into custody. The Applicant said he understood.[40]
[40] Exhibit G1, Section 501 G documents, G2, page 49.
On 11 November 2016, the Applicant was again sentenced for breaching the probation order imposed on 11 June 2014 and was fined.
According to the Applicant, around the end of 2016, his relationship with Ms E ended when she moved to Canberra with their son to be closer to her family. Child Support records put forward by the Applicant indicate that he was paying Child Support from October 2015,[41] and I find that to be a more reliable indicator of when the relationship ended.
[41] Exhibit A1, Applicant's Statement of Facts, Issues and Contentions, annexure NB-8.
On 15 January 2017 the Applicant violently attacked his brother, “Mr J”. He was ultimately convicted of contravening a domestic violence order (among other offences), indicating that there must have been a domestic violence order in place at that time. It emerged in the Applicant’s examination in chief that he had physically attacked Mr J on a previous occasion. When his lawyer asked him about “that one with your brother”, he said:
“The first one, me and my brother - I don’t know why he was, but the first incident it happened me and my brother.”
He then described being at a party and drinking with Mr J, returning home drunk, and both of them saying things they should not have said to each other. He said they were fighting and his family, who were there, came and told them to stop fighting. He held his brother tight and bit him. The police arrived and took him away. He concluded with the words “That’s the first incident that happened to me and my brother.”[42]
[42] Transcript, page 11, line 32 page 12, line 18.
In response to being asked if he had previously tried to give up alcohol, he said he had but it did not work. He then said the second fight with his brother led him to decide that he needed to quit alcohol.[43]
[43] Transcript, page 12, lines 2 to 28.
Under cross-examination the Applicant referred to “the first offence” against Mr J, saying that he was at a party.[44] He later asked the Respondent’s lawyer if he was asking about the first offence or the second offence. After being advised of his privilege against self-incrimination,[45] the Applicant did not give further evidence about the what he referred to as the first incident.
[44] Transcript, page 58, lines 28 to 30.
[45] Transcript, page 59, lines 10 to 45.
It appears that this incident is what led to the domestic violence order that the Applicant contravened on 15 January 2017.
In relation to that incident, when he was ultimately sentenced, the learned Judge described the offending as follows:
“The complainant in this case was your own brother, someone who you should be helping, rather than hurting. It seems you’d been drinking. There was discussion about going fishing. You started to get angry as the evening wore on. Ultimately, the complainant walked outside his house and sat on a chair. You walked up to him outside and struck him with a bottle with such force that the bottle smashed and causing a wound to his head, which bled. He stood up and grabbed you. You then responded by biting him on the face and chest, which is count 2.
Ultimately, another party goer separated you and the complainant and the complainant ran to a neighbour’s house. At the time all this happened, of course, the complainant was an aggrieved in respect of a domestic violence order against you.
You then drove away from the residence in the complainant’s car, and you were seen shortly thereafter wards by the police. You were ultimately intercepted. You did a breath analysis and you returned 0.207 grams of alcohol per 210 litres of breath. So it was a significant reading.”
The Applicant was arrested on the night of this incident and granted bail two days later. He was again held on remand between 13 April 2017 and his sentencing hearing on 13 February 2018.[46] In this period, he did a number of courses and sought assistance with Alcoholics Anonymous.[47]
[46] Exhibit G1, Section 501 G documents, G2, page 39.
[47] Exhibit G1, Section 501 G documents, G2, page 43.
In the hearing, the Applicant gave an account that differed from the court’s findings. He said he had been drinking with friends at Mr J’s home because they did not have anywhere else to drink. Mr J was not home but he arrived later. They argued about the music that was playing. The Applicant’s friends went home. Mr J went outside to get some fresh air, the Applicant went outside to apologise, and Mr J pushed him. The Applicant fought back but Mr J was very heavy and had him on the ground. In the Applicant’s words:
“So he had me on the ground, and I had, like, a Heineken bottle. When I had a Heineken bottle, that’s when I smashed him on the head. I smashed him on the head. And I think the neighbours called the police and they came and took him.”
The Applicant said Mr J was on top of him, hitting him.[48] He later said “When he pushed me, that’s when I fall down and I smashed a bottle in his head”.[49] The Applicant recalled biting and hitting Mr J.[50] He later said he thought his friends had called the police[51] although he had initially said his friends had left by that time. When it was put to him that the sentencing remarks indicated that another partygoer separated him and Mr J, and Mr J ran to the neighbours’ house, he said he thought the neighbours came and called the police.[52] When it was put to him that running to the neighbour’s house did not seem like the sort of thing the aggressor in a fight would do, the Applicant denied that Mr J had gone to the neighbours’ house. Later in his evidence, the Applicant said one of his friends had stayed back and it was him that called the police and the ambulance and separated them before his brother took off to the neighbours’ house.[53]
[48]    Transcript, page 60, line 25 to page 61, line 41.
[49]    Transcript, page 62, lines 21 to 22.
[50]    Transcript, page 62, lines 41 to 42.
[51]    Transcript, page 63, lines 24 to 26.
[52]    Transcript, page 64, lines 1 to 7.
[53]    Transcript, page 64 line 15 to page 65, line 20.
Suffice to say, I found the Applicant’s evidence about this incident fluid and inconsistent with the findings of the court. It was unconvincing.
The Applicant said that the following day his brother and the entire family were very angry with him for biting his brother and smashing a bottle on him, even though he was defending himself, because he should have defended himself in a different way.[54] At the time of this incident the Applicant was living with his sister.[55]
[54] Transcript, page 65, line 33 to page 66, line 5.
[55] Transcript, page 66, lines 25 to 27.
Mr J gave evidence in the hearing. His evidence broadly corroborated the Applicant’s account. He said he and the Applicant were drunk and that he went outside to sit down. He said he took offence at something the Applicant said and that he “put him down” and started beating him. The Applicant “accidentally” started fighting him and hit him with a bottle. He does not know who called the ambulance. He was taken to the hospital and had stitches put in his head. He said he blamed himself for the incident because he is the big brother and he should have set a good example to the Applicant.[56]
[56] Transcript, page 109, line 37 to page 110, line 16; page 110, lines 20 to 30; page 114, lines 15 to 21.
In cross-examination, Mr J said a police officer read charges to him and asked him exactly what happened. The police officer told him that the Applicant was in prison.[57] He said he did not have a clear memory of what happened immediately after the attack but he did around two days later. He could not recall whether he gave the police the version that was recounted in the sentencing remarks. He said he had the bottle - he was drinking from it - and he put it down near him. This is different to the Applicant’s account in which he said he “had” a Heineken bottle as opposed to saying he grabbed or got a bottle.
[57] Transcript, page 114, lines 28 to 34.
Mr J said he did not have any contact with the Applicant while he was on remand directly or through anybody else, despite the fact that his sister visited the Applicant once.[58] Mr J said he immediately forgave the Applicant because he attributed his behaviour to the alcohol.[59] He, himself, stopped drinking because of that incident.[60]
[58]    Transcript, pages 115 to 117; page 118, lines 1 to 6.
[59]    Transcript, page 110, lines 43 to 48
[60]    Transcript, page 111, lines 1 to 2.
Mr J’s evidence was that the police had read the charges to him, told him the Applicant was in prison and asked him exactly what had happened. When asked:
“Given that your brother was in gaol and you weren’t, did you think about telling the police that actually you had attacked him first?”
he said:
“Like I said, they - I didn’t see anyone come to me and asked me the correct information, so I did not tell them the critical - the critical information”[61]
and later
“So, if I knew I had given the wrong story, of course, I would go back then and just tell them the right…story.”[62]
[61] Transcript, page 117, lines 27 to 31
[62] Transcript, page 117, lines 40 to 44.
Mr J was not at the sentencing proceedings but when the Applicant was released he got him a job in an effort to keep him busy and away from bad friends.[63] It beggars belief that Mr J, having forgiven the Applicant and wanting to help him, stood by and allowed him to be held on remand for over 300 days and convicted without making sure the police knew that he had been holding the Applicant down and hitting him if that is what really happened.
[63] Transcript, page 111, lines 14 to 17.
Mr J denied having spoken with the Applicant or his lawyer about the evidence he gave.[64] He later said he would stand up for the Applicant no matter what. I have doubts about the veracity of Mr J’s evidence. I do not regard his and the Applicant’s evidence to be sufficiently reliable to reject the factual findings of the learned Judge where there is a difference between the two versions of events.
[64] Transcript, page 118, lines 10 to 29.
On 13 February 2018 the Applicant was convicted of:
·wounding-domestic violence offence and sentenced to two years imprisonment;
·assaults occasioning bodily harm-domestic violence offence and sentenced to 12 months imprisonment;
·contravention of domestic violence order (aggravated offence) and sentenced to 12 months imprisonment; and
·drink driving and sentenced to one month imprisonment and disqualified from driving for six months.
All terms of imprisonment were to be served concurrently. When passing sentence, the learned Judge said:
“The circumstances of these offences are really quite bad. It’s clear that alcohol is a problem with you. You’ve got to stop drinking; simple as that. Learn to drink tea or lemonade or something else. Because obviously alcohol doesn’t agree with you and you become violent and aggressive.”[65]
[65] Exhibit G1, Section 501 G documents, G2, page 42.
His Honour told the Applicant he was “at a crossroads” and that it was a matter for him whether he took the chance he was being given.[66] He warned the Applicant that if he breached his parole he would go straight back to gaol.[67]
[66] Exhibit G1, Section 501 G documents, G2, page 43
[67] Exhibit G1, Section 501 G documents, G2, page 44
Further, His Honour said:
“Her Honour Judge Bradley told you back in 2014 not to throw all of your opportunities away by committing further offences. Sadly, that’s what you’ve done. I’ve had regard to the fact that a particularly serious feature is that you committed these offences while you were on parole, which is always an aggravating matter.”
It is because of this sentence of imprisonment that the Applicant does not pass the character test. However, the mandatory cancellation of his visa was not triggered because he was immediately released on parole and therefore was not serving a full time custodial sentence.
While he had been on remand, the Applicant had done a number of courses and sought assistance with Alcoholics Anonymous.[68] After he was released, his parents moved to Rockhampton and he relocated with them.[69] Before moving, he was referred to mental health service and he attended psychological counselling approximately three or four times before the clinic relocated.[70] He struggled to sleep at night and his mood was generally flat. His doctor said he most likely suffered from depression and anxiety, and prescribed some medication which the Applicant did not find helpful. Over time he returned to drinking alcohol.[71]
[68]    Exhibit G1, Section 501 G documents, G2, page 43.
[69]    Exhibit G1, Section 501 G documents, G2, page 77
[70]    Applicant's Statement of Facts Issues and Contentions, paragraph 13.
[71]    Exhibit G1, Section 501 G documents, G2, page 77.
In August 2018, while on parole, the Applicant committed two separate public nuisance offences. According to the Applicant, he was trying to find his way home, “walking and I think I was sleeping on the floor or something and the police grabbed me. And I told them I’m trying to get home but I was talking to them rudely”. He said he was drunk at the time.[72] He was fined for these offences on 14 January 2019.
[72] Transcript, page 75, line 43 to page 76, line 5.
On 4 December 2019, while still on parole, the Applicant committed a further public nuisance offence and an obstruct police offence. According to the Applicant, he was very drunk and waiting for an Uber. The police told him he could not stay on the street and he asked them to leave him alone. He became angry at the way they were speaking to him and he acted aggressively and disrespectfully.[73]
[73] Transcript, page 77, lines 20 to 32.
On 20 February 2020, he was sentenced to imprisonment for one month for those offences along with some traffic infringements. The sentence was suspended for 12 months. His driver’s license was also suspended for 12 months.
In late 2019 and early 2020 the Department of Home Affairs sent the Applicant notices of intention to consider cancellation of his visa under s 501(2) of the Act, but it appears that both were returned to sender.[74] I am not satisfied that he received these.
[74] Exhibit G1, Section 501 G documents, G7, G8, G9.
In January 2021, after the Applicant returned to Brisbane with his parents, he drove over the speed limit while under the influence of alcohol.[75] He did this during his suspended sentence of imprisonment. He was also unlicensed at this time and he was aware of that.[76]
[75] Exhibit G1, Section 501 G documents, G2, page 77.
[76] Transcript, page 79, lines 22 to 26.

In the hearing, the Applicant admitted to having made the decision to drive unlicensed when he was sober. He said he drove to a “family members meeting” sober. He said people were drinking there and he drank as well. On the way home he stopped at a pub for a short time, then got back in the car and drove home. It was on the way home that the police pulled him over.[77] After extensive questioning, it emerged that there were not any members of the Applicant’s family at the event he attended. Rather there were older people he has known for a long time. He said he did not want to drink but when he saw people drinking, he decided to have just one and then he had another one and another one.
[77] Transcript, page 79, line 42 page 80, line 2.
The Applicant said his family did not know he was going to this event and would not have approved had they known. He drove his sister’s car without her permission. He did not ask her because he knew she would not have allowed him to take it. He had stopped at the pub hoping his friends would be there, and when it turned out that they were not, he had a drink anyway. These are the friends whom he described as being a bad influence on him.[78] He thought about getting a taxi or an Uber home given he had been drinking but he decided against it.[79] He did not ask Mr J to drive him to the gathering because he would have refused, knowing there would be alcohol there and that the Applicant would drink.[80] When asked why he went to this gathering despite his family not going, he said he went to see his friends who he went to school with. They are different to the friends who were a bad influence.[81]
[78]    Transcript, page 80, line 3 to page 84, line 2.
[79]    Transcript, page 87, lines 28 to 33.
[80]    Transcript, page 87, line 44 to page 88, line 11.
[81]    Transcript, page 88, lines 15 to 35.
On 25 January 2021 the Applicant was convicted and sentenced to three months imprisonment for:
·drink-driving (also disqualified from driving for 18 months); and
·disqualified driving (also disqualified from driving for a further three years on top of the 18 months).
In addition, the suspended sentence from February 2020 was fully invoked, meaning he was required to serve one month in gaol which was to be serve cumulatively. This sentencing episode triggered the mandatory cancellation of the Applicant’s visa as he was serving a full time custodial sentence and, due to the sentences imposed on 13 February 2018, he did not pass the character test.
The Applicant’s traffic infringement history is not before the Tribunal. However, when passing sentence, the learned Acting Magistrate referred to the Applicant having “three pages of traffic history” and said he had “an appalling criminal and traffic history” for someone of his age. His Honour added:
“You were on a suspended sentence that was issued on the 22^nd of February last year, for a similar offence, plus public nuisance offending. I have taken into account all those things. I have certainly taken into account you completely disregard of [sic] what the Court told you not to do. The Court said, “do not drive”, and you drove, at high speed through a suburban area. You were detected by police and apprehended, thank god…the Court needs to send a message to you and the community, that this sort of behaviour will not be tolerated, especially if you are on suspended sentences and the Court told you not to drive.”[82]
[82] Exhibit G1, Section 501 G documents, G2, page 46.
After serving his period of imprisonment, the Applicant was placed in immigration detention where he has been ever since.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, Paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result 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 in 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 give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, Paragraph 8.1.1(1) of the Direction, relevantly, specifies that 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)…;
(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)…;
(iv)…;
(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)…;
(g)….
The Applicant committed some 24 offences in a period of six years, and he has three pages of traffic infringements that includes at least two drink-driving offences. His criminal offending includes numerous assaults, dishonesty offences, contraventions of domestic violence orders, and offences involving obstructing police or failing to obey police directions. The Applicant has breached probation, parole and a suspended sentence. His offending is frequent and there is a trend in increasing seriousness that peaked with his assault on Mr J with followed by speeding while unlicensed and drunk.
The Applicant committed violent crimes against his partner, another female, his brother, a police officer who was performing his duty, and other unknown victims. The Applicant’s violence included punching, kicking, slapping, biting and breaking a bottle over Mr J’s head. Family violence and violence against women are regarded very seriously. Kicking a police officer in the jaw is extremely serious. It is not only an attack on an individual member of the Australian community, it is an attack on the apparatus of the criminal justice system that exists to protect the Australian community and is therefore an attack on the Australian community as a whole.
On four separate occasions the Applicant has been sentenced to periods of imprisonment. Imprisonment is a last resort in the hierarchy of available sentencing options. The comments made by the various judicial officers who passed sentence on the Applicant indicate how seriously they considered his offending. It is also apparent that he was given warning after warning, and that public resources were expended on him under the auspices of parole and probation to no avail.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker 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.
Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker 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 available information and evidence on the risk of the non- citizen re-offending; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending.
Should the Applicant engage in further violent offending, the harm to individuals in the Australian community includes physical and psychological injury. Even more than that, an assault such as kicking a person in the jaw or breaking a bottle over a person’s head could very well have very serious, even fatal, consequences.
Antagonistic behaviour towards police officers in the performance of their duties adds psychological stress to an already stressful occupation in which officers place themselves in positions of danger in their efforts to protect the community from harm.
Drink-driving, particularly combined with speeding, is the kind of behaviour that tends to increase the risk of accidents, which can result in serious physical injury or death.
Then there are those who are close to victims of violent crime or traffic accidents who often also suffer in various ways.
The nature of harm from further offending, as set out above, includes harm that is extremely serious.
Likelihood of engaging in further criminal or other serious conduct
Much of the Applicant’s offending is alcohol related, but not all of it. He was sober when he committed the violent assault on Ms Q in 2014 and when he decided to drive when he was aware his license had been suspended in 2020. He was also sober when, having driven to the gathering, he decided to start drinking.
Mr J gave evidence that when the Applicant is drunk, he is a different person and his family hate it. But when he is normal, he is wonderful.[83] The Applicant said his mother used to try to stop him from drinking. He said:
“She was always saying to me, ‘You got to stop drinking, you got to stop drinking’. She would literally come and yell at me to stop drinking.”[84]
[83] Transcript, page 111, lines 25 to 30.
[84] Transcript, page 27, lines 32 to 38.
There is a file note from the International Health and Medical Services (“IHMS”), dated 8 June 2021, recording that, presumably according to the Applicant, when he was drinking it caused legal problems and his family were very upset by his drinking.[85] Ms E did not like the Applicant having his friends come to their home and drink with him but he did it anyway.
[85] Exhibit G1, Section 501 G documents, G2, page 125.
Between 2013 and 2018, the Applicant made no real effort to stop abusing alcohol despite having the benefit of probation and parole, and despite the disapproval of his family and Ms E and the trouble he was getting into. He said after he kicked Ms Q, his mother did not talk to him for days.[86] Yet he went on to engage in behaviour that caused conflict with Ms E - drinking alcohol - which led to him assaulting her. He did not treat probation seriously, taking exception to having to catch the bus to a fortnightly meeting with his probation officer.[87]
[86] Transcript, page 27, lines 42 to 44.
[87] Transcript, page 45, lines 10 to 33.
He said that after the fight with his brother in 2017:
“I needed to quit alcohol, because I kept on doing the wrong things. The alcohol was just always controlling me. It makes me do things I shouldn’t have done when I was sober, you know. So I need to quit.”[88]
[88] Transcript, page 12, lines 26 to 30.
While on remand for that assault, between April 2017 and February 2018, the Applicant did some vocational courses, he recalls talking to somebody who visited the prison about his offending and his drinking,[89] and he sought assistance with Alcoholics Anonymous.[90]
[89] Transcript, page 74.
[90] Exhibit G1, Section 501 G documents, G2, page 43.
After being released from remand and given immediate parole, the Applicant moved to Rockhampton to live with his parents. Mr J got him employment, and according to the Applicant him, he reduced his drinking[91], only drinking on weekends.[92] According to Mr J, as well as getting the Applicant a job, he tried to keep him away from bad friends.[93]
[91]    Transcript, page 70, lines 43 to 48.
[92]    Transcript, page 17, lines 22 to 36
[93]    Transcript, page 111, lines 14 to 17.
When the Applicant’s parents moved to Brisbane because of his mother’s mental illness, he moved with them. He said his cravings for alcohol were still there but he was doing well until he committed the drink-driving offence.[94] I do not accept that he was doing well until that offending episode. While he did not commit any more violent offences, he continued to engage in anti-social drinking and was obnoxious to police officers who tried to move him on when he was drunk in public.
[94] Transcript, page 75, lines 30 to 41.
The Applicant expressed shame for his behaviour and claimed to accept full responsibility for his actions. However, in the hearing he blamed others and sought to downplay his own culpability. For example, he claimed that his offending and drinking were contributed to by friends who were a bad influence. However, he also gave evidence that he invited those friends to his place to drink alcohol despite Ms E being unhappy about that and that he invited them to drink at his parents’ house. When asked why he did not associate with his friends from school, who he said did not drink, rather than the friends who were a bad influence. He said:
“because, you see, the friends I went to school with, they’re not much of a drinker, they don’t really drink… I should have picked the school friends instead of picking the bad influence friends. But, I chose the wrong friends and didn’t pick the good friends.”[95]
[95] Transcript, page 88, line 37 to page 89, line 2.
Accordingly, it appears that the Applicant preferred to associate with friends who consumed alcohol.
Other examples are that the Applicant characterised his assault on Ms Q as him protecting Ms E and his unborn child, and he claimed his attacks on Mr J and the police officer were in self-defence.
In his revocation request the Applicant said he recently came to discover that he has been dealing with depression and anxiety for many years, coming from a culture with little understanding of mental health.[96] He used substances to mask the pain and before he knew it he was an addict. He got caught in the cycle for years.[97] He claimed that drugs are no longer a problem in his life and he has managed to slow down on alcohol. He has not completely reached the “goal in mind” but said if he were given a second chance, “I am dedicating every minute to take all the right measures to ensure I achieve that”. He said that he normally maintained a good character when he was in full control of his emotions or had an understanding on how to manage his behaviour.[98]
[96]    Exhibit G1, Section 501 G documents, G2, page 57.
[97]    Exhibit G1, Section 501 G documents, G2, page 57.
[98]    Exhibit G1, Section 501 G documents, G2, page 58.
The Applicant further said that apart from the health and legal concerns that are likely to keep him from reoffending, there is no greater incentive than losing everyone he loves and that his visa cancellation was “a huge wake-up call” that has changed his life forever.[99] In a statement attached to his revocation request, the Applicant acknowledged that it was wrong and foolish of him to return to drinking, and especially to drive after consuming alcohol.[100] He acknowledged that he has no choice but to change his ways and reform his life, otherwise he could be sent back to Africa where he fears he would not survive.[101] He also said he did not fully digest the warning about stopping drinking and learning to drink tea or lemonade or something else, but he fully understands now that he has grown and matured.[102]
[99]    Exhibit G1, Section 501 G documents, G2, page 59.
[100]    Exhibit G1, Section 501 G documents, G2, page 77.
[101]    Exhibit G1, Section 501 G documents, G2, page 77.
[102]    Exhibit G1, Section 501 G documents, G2, page 81.
In these proceedings a lot was made of the fact that the Applicant thought his visa could not be cancelled because it is a refugee visa.[103] He said:
“Nobody ever told me if you do anything wrong you’ll get deported again. So when I got out of jail I thought nothing whatever happened-it will never happen to me. So if I knew something would happen to me, to be honest I wouldn’t be here.”[104]
[103] Transcript, page 13, lines 15 and 16.
[104] Transcript, page 13, lines 20 to 24.
It was contended on the Applicant’s behalf that, after he was sentenced for the assault on his brother, he was not taken into immigration detention and not warned that his visa could be cancelled if he offended again. It was contended that had he been warned there may have been a different outcome, i.e. he may not have committed the drink driving offence.[105]
[105] Transcript, page 6, lines 1 to 17.
If having his visa cancelled was what it took for the Applicant to “wake up” then that is very concerning. What that means is that harming others including those close to him, letting his family down and risking their disapproval, putting the lives of other road users at risk and risking imprisonment were not sufficient to curb his alcohol abuse and criminal behaviour. He now asks the Tribunal to accept that, while nothing else made a difference, the prospect of deportation does.
There have been indications that the Applicant reached a turning point before. A witness called by the Applicant, Ms M, said she knew the Applicant through her work in a council library where the Applicant used to come after school. She said in 2014 or 2015 the Applicant came to see her at the library and told her he was “in big trouble” due to “the offence and the potential consequences”. She said his manner was grave, serious and solemn, and she believed that he understood the gravity of the situation he was in and was incredibly remorseful. (She also said if he has the right support and help he can be a law-abiding, valuable, contributing member of the Australian community).[106] Yet the Applicant went on to re-offend. In a sentencing episode in February 2015, the learned Magistrate said that the Applicant had told him that alcohol was no longer an issue.[107] In the hearing he said he could not recall having made that claim, however I accept the accuracy of the sentencing remarks. The IHMS file note, dated 8 June 2021, records that the Applicant tried cannabis in 2019 but he stopped because his family found out.[108] This drug use occurred after, according to him, he was curbing his alcohol use.
[106]    Exhibit G1, Section 501 G documents, G2, page 228.
[107]    Transcript, page 46, lines 31 to 34.
[108]    Exhibit G1, Section 501 G documents, G2, page 125

Since being incarcerated in January this year, the Applicant has engaged in some rehabilitative courses and counselling in relation to drugs and alcohol.[109] In addition, the material before me contains a “Do It” program participant workbook. Much of it is incomplete.[110] It does not contain any kind of assessment to indicate how effective the program was. There is also a Relapse Prevention and Management Plan which has not been completed.[111] The Applicant completed an anger management workbook program and attended a session of an online Man Up program.
[109]    Exhibit G1, Section 501 G documents, G2, page 77
[110]    Exhibit G1, Section 501 G documents, , pages 130 to 203.
[111]    Exhibit G1, Section 501 G documents, G2, pages 218 to 226.
While in custody, the Applicant attended some sessions with a mental health professional who referred him to a psychiatrist who prescribed medication to help him sleep. He takes the medication when he needs it, not every day. He would prefer to manage his mental health without the assistance of medication if possible.[112] He said he exercises regularly, plays basketball with other detainees, and attends classes in mindfulness, meditation and art therapy. He finds these activities help stabilise his mood and are a very positive influence on his mental and emotional well-being.[113]
[112] Exhibit G1, Section 501 G documents, G2, page 78.
[113] Exhibit G1, Section 501 G documents, G2, page 78.
A comprehensive IHMS file note by a psychiatrist dated 28 May 2021 recorded that the Applicant did not see mental health services in gaol. It noted that the Applicant had “no mood, anxiety or psychotic symptoms currently”. It also noted that the Applicant “perceives that doing drugs and alcohol [programs] will help him with his visa. Some cravings for alcohol”.[114] In the hearing the Applicant said that since doing an online program he no longer has cravings.[115] He said when he sees a psychologist now they discuss his alcohol not his mental health.[116]
[114]    Exhibit G1, Section 501 G documents, G2, page 127.
[115]    Transcript, page 106, lines 1 to 15.
[116]    Transcript, page 98, lines 21 to 27.
The Applicant said that if he gets his visa back, he plans to manage his mental health in the community by doing activities, seeing a psychologist and other people who can help him, meditating and going to the gym or doing other forms of exercise outside the gym.[117] He intends to socialise with people his age in his church congregation.[118] In his revocation request he acknowledged that it would not be easy but he is committed to self-improvement and he felt he had made much progress since being incarcerated in January.[119]
[117]    Transcript, page 98, lines 1 to 20.
[118]    Exhibit G1, Section 501 G documents, G2, page 78; Transcript, page 89, line 45 to page 90, line 20
[119]    Exhibit G1, Section 501 G documents, G2, page 78.
The Applicant has made enquiries with Lives Lived Well and there is a letter before the Tribunal dated 28 May 2021 from that organisation confirming that the Applicant could engage with an outreach program or alcohol and other drugs service hub which would provide free support for him.[120]
[120] Exhibit G1, Section 501 G documents, G2, page 122
There is a reference from a previous employer, dated February 2021, stating that the Applicant was employed from 20 February 2019 to 24 November 2019 as a casual farmhand. The Applicant is described as a conscientious worker, and the letter indicates that the business would employ the Applicant again.[121] The Applicant intends to take up that offer.
[121] Exhibit G1, Section 501 G documents, G2, page 227
The Applicant has the support of his parents, Mr J and his sister, “Ms V”. He described Ms V as his strongest support person. He said he does not speak to Mr J very often because he is busy and he speaks with his parents around once or twice a week.[122] His family each expressed a belief that he could reform.
[122] Exhibit G1, Section 501 G documents, G2, page 79.
Mr J said that after the Applicant got out of gaol, he promised him that he wanted to change and be the person he should be.[123] It is apparent that the Applicant did not follow through with that promise. It emerged in the hearing that Mr J was not aware of the Applicant having committed any other domestic violence.[124] Accordingly he is not aware of the extent of the Applicant’s issues. When he was asked why he forgave the Applicant after the assault he indicated that he is more hopeful than certain that the Applicant has reformed, saying:
"The reason why I’ve forgiven my brother, first of all, he’s my brother and whatever he does, or whatever he may do to himself, he’s still my brother and I’m sure - I believe he one - day willing (sic) to change and become the person he should be.”[125]
[123]    Transcript, page 119, line 40 to page 120, line 10.
[124]    Transcript, page 120, line 50.
[125]    Transcript, page 122 lines 1 to 5.
In a letter of support Mr J said he would guard the Applicant and make sure he did not drink alcohol again. When asked how he would do that, he said he would do everything to make the Applicant stay with him most of the time, he would drive him to and from work, and he would take him to church.[126] Mr J has five children under the age of nine. Despite this, he believes his wife will not mind him devoting time to the Applicant. Given Mr J’s responsibilities and that he is so busy he cannot talk to the Applicant much, I am not convinced that his plan to guard the Applicant is realistic or that it will be enough if the Applicant himself is not fully committed to his rehabilitation.
[126] Transcript, page 122 lines 20 to 46.
Ms V acknowledged that when the Applicant took her car (in the most recent offending episode), her car was taken away which had a significant impact on her. However, she has forgiven him because he is her brother.[127] She said she would stand up for the Applicant no matter what.[128] She, too, was not aware of the full extent of his offending.
[127] Transcript, page 130 lines 20 to 39.
[128] Transcript, page 130 lines 45 to 47.
There is a letter from the president of the Association of the Burundian community of Queensland which is described as a character reference but it talks about the Applicant’s family more than the Applicant. It is not apparent how well, if at all, he knows the Applicant, so I have little regard to it.[129]
[129] Exhibit G1, Section 501 G documents, G2, page 236
The Applicant claimed, and I accept, that he has not consumed alcohol since being arrested in January 2021. There is no evidence of offences or serious breaches in custody. Sobriety in a structured environment where it is not permitted to openly consume drugs or alcohol is very different to sobriety in the wider community where alcohol is readily available and alcohol consumption is legal.
The Applicant has a sustained eight year history of alcohol abuse and criminal offending. There is not a formal diagnosis from an appropriately qualified practitioner of any mental health condition or any expert evidence about the relationship between his mental health and his abuse of alcohol. I only have the Applicant’s word that his claimed anxiety and depression have subsisted for many years and contributed to his alcohol abuse.
The Applicant’s assault on Ms Q displays a propensity towards violence independent of his issues with alcohol. I do not have the benefit of expert evidence pertaining to his issues with alcohol and violence or how effective any of the rehabilitative activities have been. As late as May 2021, the Applicant was still experiencing cravings for alcohol.
There have been previous indications that the Applicant had reached a turning point, yet he continued to drink and re-offend even in the face of strong deterrents. While I accept that the prospect of deportation got the Applicant’s attention, there remains a lack of insight into his offending and a lack of candour in his evidence about this offending that indicated an unwillingness to truly accept responsibility for it. This gives me cause for concern that the Applicant is not far enough along in his rehabilitative journey to sufficiently commit to sobriety and compliance with the law. It may be trite, but it is true, to say that his apparent commitment to those things has not been tested in the wider community.
I accept that the Applicant has not committed any domestic violence since his release from gaol in 2018, however that is only a period of three years, and as recently as December 2019 he acted aggressively towards a police officer, indicating he still had a problem with aggression then. The Applicant has the support of his parents, Mr J and Ms V who want him to live a sober, law-abiding life. However, he had their support before, and he still engaged in conduct that he knew they would disapprove of. Mr J cannot be with him all the time.
While I accept that the Applicant has a very great desire to avoid deportation, I am not persuaded that this means he will not offend in future. I consider there to be a moderate risk that the Applicant will commit further offences of the kind that he has committed.
Conclusion: Primary Consideration 1
Primary Consideration 1 weighs heavily against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
The Applicant and Ms E lived together for the duration of their relationship, either at his parents’ house or in their own place. He took her phone and smashed it on one occasion and he hit her and pulled her hair on another. He did those things while a domestic violence order was in place. The Applicant he smashed a bottle on Mr J’s head and bit him while a domestic violence order was in place. This is quite frequent offending, that became more serious, during a three year period.
Most of the matters that I am required to address under this Primary Consideration have been addressed under Primary Consideration 1. While the Applicant expressed remorse for harming Ms E and Mr J, and he condemned his actions, he did not display an understanding of how his offending had impacted them. However, I am prepared to accept that he at least realised the trauma he caused to them.
In July 2016, Magistrate Johnstone sentenced the Applicant for the offences against Ms E. His Honour said:
“Victims are often too ashamed to publicly complain. Partly because of misguided feelings of guilt and responsibility for the perpetrator’s actions. Members of the community are often reluctant to become involved in the personal relationships of others where domestic violence is concerned. Perpetrators of domestic violence often fail to have insight into the seriousness of the offending, and your conduct on the first (sic) occasion is simply appalling, coming home taking issue with the fact that your dinner had not been cooked by the aggrieved. Domestic violence has a deleterious ongoing impact, not only on the immediate victim but on the victim’s wider family and ultimately on the whole of society. It is not solely a domestic issue, it is a crime against the State, warranting salutary punishment. Perpetrators of serious acts of domestic violence must know that society will not tolerate such behaviour…”[130]
[130] Exhibit G1, Section 501 G documents, G2, page 48.
Accordingly, the Applicant was warned about the evils of domestic violence and the consequences of further offending at that time.
Conclusion: Primary Consideration 2
The fact that the Direction devotes this Primary Consideration to family violence, in addition to emphasising the seriousness of acts of family violence and violence against women and children in Primary Consideration 1, indicates that increased significance is to be given to such conduct. The fact that some of the Applicant’s offending was family violence adds to the reasons not to revoke the cancellation of the visa.
PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8(3) of the Direction compels a decision-maker to consider the best interests of a minor child in Australia. Under paragraph 8.3(1), I must determine whether non-revocation under section 501CA is or is not in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
·     the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
·     the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
·     the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
·     the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
·     whether there are other persons who already fulfil a parental role in relation to the child; and
·     any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).
The Applicant’s son, “Child A”, is seven years old and he lives in Canberra with his mother, Ms E. In the Applicant’s revocation request, he said, about his son, “I played an active role in his life and would take care of him as much as I could”.[131] However in the hearing the Applicant admitted that when Child A was very young he was mostly cared for by the Applicant’s mother, including the period when the Applicant and Ms E had their own place. When the Applicant’s friends came over to drink with him, Child A was not there. His mother told him and Ms E that they had to learn to take care of their child. The Applicant said he would sometimes look after Child A, taking him to the park, dressing him and feeding him etc.[132]
[131] Exhibit G1, Section 501 G documents,G2, page 76.
[132] Transcript pages 19 and 20.
The Applicant recalled that Child A was two or three when Ms E moved to Canberra with him.[133] However, as mentioned above, he was paying Child Support from October 2015, when Child A was one year old. He said the relationship ended when Ms E went to Canberra and that he paid Child Support after they split up. He has not seen Child A in person since.
[133] Transcript, page 19, lines 43 to 45.
The Applicant said he currently did not have as much in person contact with Child A as he would like due to the fact that Ms E moved to Canberra. He maintained phone calls and video calls as much as he could and he had been attempting to get a job in Canberra so he could be close to Child A.[134] He said “I am doing all that I could to be close to my son and once I am allowed to stay here, I will continue to do so”.[135]
[134] G2, page 67; A1 page 12. Transcript, page 90 lines 30 to 31.
[135] Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions, page 12. \
However, the evidence does not indicate that the applicant did all he could before to be close to Child A. He said he could not visit Child A because of his parole and probation conditions.[136] He was subject to probation from June 2014 to December 2015 (and also on parole in some of that period) and he was on parole from July 2016 to March 2017 and from February 2018 to April 2019. When probed further about why he had not visited Child A, the Applicant said he was busy looking for a job, and he could not go for just a weekend – a visit should be two or three weeks. When that reason was challenged, he said he did not have any money to buy Child A a present. When asked about all the money he spent on alcohol, he said “Well, even alcohol doesn’t cost $100 a time, you know”.[137] He added that he would have to buy tickets as well. When asked about the period when he was working, he said he had only just got the job and wanted to work a bit longer before seeing his son.[138] However, from April to November 2019 the Applicant was employed and not on parole, so I do not accept his excuse that the fact he had only just got a job prevented him from travelling. It does not appear that a visit from the Applicant would have been unwelcome: the Applicant said Ms E was always asking him when he was going to come and see his son,[139] and she provided a letter expressing her wish for the Applicant to be involved in Child A’s life. The evidence indicates, to me, that visiting Child A was not a high propriety for the Applicant, although I accept that he was in regular phone contact with Child A.
[136]    Transcript, page 20, lines 15 to 18; page 21, lines 1 to 16.
[137]    Transcript page92 lines 38 to 39.
[138]    Transcript, page 91, line 23 to page 93, line 9.
[139]    Transcript, page 91, line 23 to page 93, line 9.
The Applicant paid child support through the Child Support Agency which took a portion of his Centrelink payments and subsequently his wages.[140] He said Ms E used the money to buy food, lunch, school uniforms, shoes and clothes.[141] A child support payer transaction statement for the period October 2015 to August 2021 shows that between November 2015 and August 2020, the Applicant was paying on average around $17 per fortnight in child support, which is not enough for lunches let alone anything else. He paid a higher rate from September 2020. In total, he paid $2979.64 over a six year period.[142]
[140]    Transcript, page 20, lines 23 to 45.
[141]    Transcript, page 22, lines 7 to 13.
[142]    Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions, Annexure NB-8.

The Applicant is in touch with Child A but he has not told him that he is in immigration detention because he does not think it would be good for him.[143] About his current absence, he said:
“I maintain contact and even though he is a young man, but (sic) he is familiar with what role I should be playing in his life and he expect it. There were heaps of moments when he would ask me when I was going to come and visit him so he can have his father around like other kids. I can’t imagine how much impact it would have in his life, knowing I could never bee (sic) around.”[144]
[143] Transcript, page 21, lines 23 to 37.
[144] Exhibit G1, Section 501 G documents, G2, page 67.
I have before me what appears to be an undated handwritten letter from Child A in which he says he misses and loves the Applicant and wants to see him.[145]
[145] Exhibit G1, Section 501 G documents, G2, page 234.
If the Applicant gets his visa back, he plans to remain in Brisbane close to his support system. He would like to assist in Child A’s upbringing, to play a positive parental role, to assist with schooling and go to soccer matches and play with him the same way that other fathers do with their children.[146] It was contended that Child A would be negatively impacted if he did not have the Applicant physically involved in his life.[147]
[146] Exhibit G1, Section 501 G documents, G2, page 89.
[147] Exhibit G1, Section 501 G documents, G2, page 90.
Ms E provided a letter dated 23 May 2021[148] in which she said deporting the Applicant would break him because he is trying to there for Child A more often. She said he calls to check up on Child A and help with some responsibilities. On behalf of Child A she pleaded for a second chance for the Applicant so he could "be better and make positive changes towards his behaviour".
[148] Exhibit G1, Section 501 G documents, G2, page 231.
The Applicant has had very limited involvement in Child A’s life and that was so even when Child A lived in Brisbane. He has not been with Child A in person for five or six years. His claims about his involvement in, and contribution to, Child A’s life seem very exaggerated. Despite his claims, I think it unlikely that the Applicant would visit Child A much, if at all, if he were allowed to return to the wider community. There is therefore limited scope for him to play a positive role in his life. I do think he would continue to have regular contact though phone calls and video calls with Child A which is in Child A’s best interests. I am prepared to assume that it is unlikely that the Applicant could maintain regular phone contact with Child A from Burundi. The best interests of Child A weighs to a limited extent in favour of revocation.
The Applicant has seven nieces and nephews that he submits would be affected by the decision. He said he took his nieces and nephews to the park, played with them and took them to the shops and movies. He spoke about them collectively. He believes they miss him when he is not around, and they would feel very bad if he left them without saying goodbye.[149] Mr J has five children whose ages range from one to eight years old. Ms V has two minor children aged ten and ten months, respectively. Her husband passed away and she is a single parent.[150] Mr J and Ms V broadly corroborated the Applicant’s evidence regarding his relationship with the children.[151]
[149]    Exhibit G1, Section 501 G documents, G2, page 69
[150]    Transcript, page 127, lines 23 to 32
[151]    Transcripts, page 127, lines 29 to 44; page 128 lines 1 to 14; page 124 lines 29 to 41.
The Applicant could not possibly have a meaningful relationship with the one year old and ten month old, and there were periods of absence from the rest of the children when he was incarcerated or did not live in the same city as Mr J or Ms V, respectively. However, I accept that when the Applicant was around, he was an attentive uncle and he would be again if he were allowed to return to the wider community.
Each of these children has at least one parent fulfilling a parental role and there is no suggestion that the Applicant would ever be called upon to do that. As above, I am prepared to assume that it is unlikely that the Applicant could maintain regular phone contact with these children from Burundi. The best interests of the Applicant’s nieces and nephews weighs to a limited extent in favour of revocation.
Conclusion: Primary Consideration 3
Taking into account the best interests of the children mentioned above, this Primary Consideration weighs to a limited extent in favour of the revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 4, Paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.4(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 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 through conduct, in Australia or elsewhere, of the following kind, relevantly:
(a)acts of family violence; or
(b)…;
(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;…
Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
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.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185.
Analysis – Allocation of Weight to this Primary Consideration 4
Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters:
·the Applicant moved to Australia when he was a child of approximately 12 years of age. He is now approximately 27 years old;
·the Applicant commenced offending seven years after moving to Australia;
·the Applicant has engaged in serious violent offending including family violence and an assault on a police officer, and he has committed traffic offences of a kind that increase the risk of harm to other road users;
·there is a moderate risk he will re-offend;
·his offending demonstrates a disregard for the laws and legal apparatus regulating the community that he seeks to re-enter;
·he has a limited employment history and there is no evidence of other contribution to the community outside his family; and
·if he is removed to Burundi, it will adversely affect him, his son, Ms E, and his immediate and extended family as discussed in Primary Consideration 3 and the Other Considerations.
Conclusion: Primary Consideration 4
Primary Consideration 4 weighs heavily in favour of non-revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at Paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).
(a) International non-refoulement obligations
The Applicant contends that he would face harm, including death, if removed to Burundi.
At no time has it been asserted by the Applicant, or on his behalf, that he is not a citizen of Burundi. This does not appear to be in dispute. Accordingly, the receiving country is Burundi.
Until part-way through his examination in chief, neither the Applicant nor any lawyer acting for him had ever contended that he might have difficulty proving to the Burundian government that he is a citizen. During his examination in chief, the following exchange occurred between the Applicant and his lawyer:
Ms Zhao: Okay. How about in terms of you were born in Tanzania and would the Burundi
government take you back as a Burundi citizen? Do you know anything about that?
Applicant: I don’t think they would, because I don’t have the date of birth. Because I was born in Tanzania and I don’t think that Tanzania would take me because apparently Tanzania is closed down. And, yes, I don’t think – I don’t even know what they would do to me. Because they will ask me where I was born, and if I say I was born here they will ask me for the documents, and mum and dad don’t have the documents – we didn’t come with the documents.
Ms Zhao: So what do you mean? That you don’t have birth certificate?
Applicant: No. I don’t have birth certificate. Neither my dad or my mum, none of them do.
Ms Zhao: So you reckon they’re going to have issues to identify who you are to be able to take?
Applicant: Yes.
Ms Zhao: No birth certificate. Right?
Applicant: Yes, that’s why we really – our date of birth is different, because we don’t have the birth certificate.
Ms Zhao: Yes?
Applicant: Yes.
Ms Zhao: All right. So even proving you are a Burundi is going to be challenging. Is that right?
Applicant: No (indistinct).
Ms Zhao: For the government, the Burundi government, as well?
Applicant: Yes.
Ms Zhao: Even though Australia already accepted you’re Burundian. But for them, to recognise you are their citizen, that’s going to be challenging?
Applicant: Yes.
This evidence was not provided to the Respondent in a document two business days before the hearing. Under s500(6H) of the Act, I am not permitted to take it into account. Accordingly, I have no regard to it.
Paragraph 9.1(1) of the Direction provides that a non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm, and it refers to Australia’s 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).
It goes on to say that 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 and that in considering non-refoulement obligations where relevant, decision-makers should follow the tests enunciated in the Act.
Sections 36(2)(a) and 36(2)(aa) of the Act provide the tests for protection on the basis of refugee status and for complementary protection. Those tests contain exclusions that are not contained in the CAT or ICCPR. Accordingly, a person who could not satisfy the criteria for a protection visa may still engage Australia’s non-refoulement obligations as a matter of fact despite the Government’s interpretation of the scope of its obligations. As Mortimer J said in Minister for Home Affairs v Omar[152]
“Critically, what matters for the exercise of the s 501CA(4) discretion is not the consideration of a visa criterion which might have similar content (in some respects) to Australia’s non-refoulement obligations: it is whether Australia’s non-refoulement obligations are engaged in respect of a particular individual.”[153]
(Emphasis in original)
[152] [2019] FCAFC 188; (2019) 272 FCR 589.
[153] Ibid, at [59].
Paragraph 9.1(6) of the Direction recognises that it may not be possible for a decision-maker at the s 501CA stage to consider non-refoulement issues in the same level of detail as they are considered in a protection visa application. That was the case here given the paucity of country information on Burundi before the Tribunal and the Applicant’s vague, shifting claims.
While I am not required to make a determination on whether non-refoulement obligations are owed,[154] I must give meaningful consideration to the Applicant’s representations on the claimed risk of harm if returned to Burundi and consider claims of harm or hardship separately to the question of whether those claims engage Australia’s non-refoulement obligations.
[154] See paragraph 9.1(6) of the Direction and STZS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1140, citing Ali v Minister [2018] FCA 650 at [28], [34] and Greene v Assistant Ministerfor Home Affairs [2018] FCA 919.
The Applicant has never lived in Burundi, as he was born in a Tanzanian refugee camp and lived there until he came to Australia in 2006. He therefore has no personal knowledge or experience of Burundi. The Applicant does not know why he was recognised as a refugee because he was a child when he arrived in Australia.[155] In any event, the fact that he was previously a refugee does not necessarily mean he is a refugee, or owed complementary protection, now. His claims are to be assessed according to the current evidence.
[155] Exhibit G1, Section 501 G documents, G2, page 60
The Applicant claimed several potential risks of harm in his revocation request. They are:
·     the information he has gathered over the years suggest that Burundi is not a safe place for the majority of the population, let alone someone who was raised in Australia;
·     it is commonly talked about in Burundian communities in Australia how regularly people are killed for no apparent reason;
·     in Burundi a person is an instant target for kidnapping if their family lives in the West as there is a common belief that everyone in the West is rich. He said he could not imagine the danger and the psychological trauma he would have to endure living there;
·     having been raised in the Australian culture, it would not be so hard for anyone to figure out that he is an outsider. He would be targeted because he does not know any of the local customs or speak the language;
·     there could be threats that he might be unaware of, for example vengeance due to jealousy or wrongdoings by other family members in the past;
·     he is not certain of the extent of danger in Burundi, but at minimum it could be life-threatening. He fears for his life from enemies seen and unseen;
·     he is not equipped with the knowledge to survive in Burundi and his visa is a matter of life and death to him; [156]
·     there would be a severe lack of people qualified to treat him for his mental health conditions in Burundi. Without medical care or the support of his family network his mental health could spiral;[157]
·     he has no understanding of the culture there and he does not have the financial means to have a life anywhere outside Australia. He would not be able to get a job, there is no government support, and he would not be able to subsist;[158] and
·     his grandmother was the last person his family knew in Burundi and she died last year.[159]
[156]    Exhibit G1, Section 501 G documents, G2, pages 54 and 55
[157]    Exhibit G1, Section 501 G documents, G2, page 81.
[158]    Exhibit G1, Section 501 G documents, G2, page 60; Transcript, page 32, lines 15 to 28.
[159]    Exhibit G1, Section 501 G documents, G2, page 80
The Applicant gave evidence in the hearing that his family would probably send him money in Burundi if they could contact him.[160] That tends to undermine his claim that he would not be able to subsist.
[160] Transcript, page 32, lines 1 to 10.
The Applicant was invited to explain his claimed fears of harm in the hearing. When asked who he thought would harm him if he went back to Burundi he said “anybody”.[161] He claimed people would threaten him to get money sent into the country. When asked why he thought that, he said the people are so dangerous they do anything for money and as soon as they see you a person dressed up or looking different they identify them as being from a different country especially they do not speak the local language. He said he would look dressed up because everyone else dresses like a homeless person. He provided no evidence to substantiate that assertion and I do not accept it.
[161] Transcript, page 29, lines 45 to 46.
I pause to mention that the Applicant gave evidence that the language of Burundi is Kirundi, that it is his first language[162] and that he speaks it with his family, especially his parents who do not speak English. He said he mixes it a bit with English so he does not speak it properly,[163] and he cannot read or write in Kirundi.[164]
[162] Transcript, page 46, line 13.
[163] Transcript, page 29, lines 12 to 24.
[164] Transcript, page 29, lines 29 to 30.
When it was put to the Applicant that he does speak the local language he said “Not as good” and people would read his body language and ask where he came from and what tribe he was in. When asked what he thought people could do to him if they thought he had money given he would not in fact be wealthy, he said he did not know but they would try to find out where he was from and if he had any money and if he said no they would try to get money from his family or anybody that he knew. When it was put to him that he does not know anyone in Burundi, he said they people could still harm him. When asked what the point in harming him was if he did not have any money, he said in Burundi they killed people for anything.[165]
[165] Transcript, page 30, line 5 to look page 31, line 47.
The Applicant said his fears of harm are based on what his parents have told him[166] and what he has been told by Australian citizens who have travelled to Burundi for holidays.[167] The Applicant’s parents have not lived in Burundi since before he was born.
[166] Transcript, page 94, lines 10 to 24.
[167] Transcript, page 95, lines 4 to 12.
Much of his claimed fears seemed to centre on people asking him where he was from. He was asked who would ask him, and he said normal people who live there would ask him.[168] When asked where the harm was in somebody asking where he was from he said “They can beat you up to death or something”.[169] When asked if he thought that in Burundi there were people walking around who would beat him up he said:
“No. What I’m saying, if you’re from a different country, it’s alright if you’re going to visit because you can just be like, ‘Yes, I’m here for a visit’, you know. It’s not like you’re staying there. So, that’s different.”
[168] Transcript, page 95, lines 20 to 41.
[169] Transcript, page 96, lines 5 to 8.
In fact, the Department of Foreign Affairs and Trade’s "Smart Traveller" website says that foreigners can be a target of kidnapping, but it does not indicate that kidnappings are a problem faced by residents.[170] When asked why he could not say he was there for a visit for six months, he said “But I’m not visiting. The guy is going to see me, what if he sees me after the six months; what am I going to say to him again?”[171] I found his answer, along with his other evidence relating to this claim, illogical and fanciful, and I got the strong impression that the Applicant was seeking to construct risks of harm rather than articulating a genuinely held fear.
[170] See Exhibit R1, Respondent’s Statement of Facts, Issues and Contentions, page 25 where text from the smarttraveller.gov.au webpage is quoted.
[171] Transcript, page 96, lines 10 to 19.

Paragraph 9.3(1) of the Direction relevantly states:
“Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.”
While the paragraph refers to “members of the Australian community”, it is normally applied as though it refers only to victims or family members of victims. Treating as significant the interests of persons who would be adversely impacted by a non-citizen’s presence in the wider Australian community due to his or her offending aligns with the policy underpinning the Direction with its emphasis on the protection of the Australian community from crime and other serious conduct and the expectations of the Australian community in relation to the conduct of non-citizens.
However, evidence of that kind is rarely available to the decision maker. Generally victims who do not have a relationship with the non-citizen, whose only experience of that person is the harm he or she did to them or their loved one, do not have a voice in this process, and that is probably because it is impractical to locate those people or undesirable to risk dredging up traumatic memories. In the vast majority of these matters, as in the present matter, the only victims whose interests are known to the decision maker are those who have a familial or domestic relationship with the non-citizen.
The Direction mandates that the interests of minor children and family members in Australia[195] are to be taken into account under Primary Consideration 3 or Other Consideration (d), respectively. There has been some recent judicial consideration of the predecessor to paragraph 9.3(1), in Ministerial Direction No. 79 (which was worded slightly differently) where a family member is also a victim.
[195] Who are citizens, permanent residents or have the right to remain indefinitely in Australia.
In Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[196], Mr Bale’s wife was a victim of his domestic violence. He had also committed other offences so there were presumably other victims. There was evidence that Mr Bale’s wife would be negatively impacted by a non-revocation decision essentially because she was suffering a mental illness and needed his companionship. The Tribunal had considered the impact of a non-revocation decision on Ms Bale’s wife.[197] However, before the Federal Court, Mr Bale argued that the Tribunal had erroneously failed to consider the impact on his wife as a victim.[198]
[196] [2020] FCA 646.
[197] Under Clause 14.2(1)(b) of Direction No. 79
[198] Under Clause 14.4(1) of Direction No. 79
Perram J made the observation that where the crime in question is a crime against a member of the family unit, the mandatory considerations relating to victims and ties to the Australian community have the potential to overlap, and that Mr Bale sought to take advantage of that apparent overlap.[199] Paragraphs 26 and 27 of His Honour’s judgment provide guidance on how the apparent overlap is to be dealt with. His Honour said:
“I do not accept this argument because whichever way one looks at it, the fact that Mr Bale’s wife desired for him to remain in Australia was taken into account by the Tribunal. Where a matter is relevant to two or more mandatory relevant considerations, a decision-maker is not usually required to take the matter into account repetitiously…
The only way to outflank that problem would be to submit that there was some aspect of the wife’s evidence as a victim which was different from her evidence as a spouse. Such evidence might be readily enough imagined. For example, in her evidence Mr Bale’s wife could have addressed the fact that Mr Bale had been convicted of common assault following an attempt to throttle her early on the morning of 17 December 2007. She could have said that despite that assault she forgave him and was not concerned that he might assault her again. It may well be that evidence of that kind would have engaged cl 14.4(1) independently of cl 14.2.(1)(b)”.
(Underlining added)
[199] At [21].
The example His Honour gave illustrated a point and it was qualified by the words “may well be”. It does not appear to have been intended as a definitive statement that where a family member gives evidence that they forgive an offender and/or trust that they will not re-offend against them, they are giving evidence that is different to evidence they give as a family member. In the present case, Mr J forgave the Applicant and he hopes he will not re-offend because they are brothers and he loves the Applicant. He supports the Applicant despite the Applicant’s offending against him. He gave evidence as a family member.
In XXBN vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[200] XXBN’s wife and sister-in-law, who were both victims of his domestic violence, gave evidence that they forgave him, did not fear further offending, and wanted him to remain in Australia. The Tribunal took their evidence into account in relation to XXBN’s ties to the community. In his application to the Federal Court, the Applicant contended that the Tribunal had failed to deal with the impact of his removal on both women as victims. He relied on the hypothetical example given by Perram J in Bale. Murphy J recounted the submissions this way:
“The Applicant contends that this is precisely the situation in the present case; as both victims of the Applicant’s assaults, Ms A and Ms B, provided evidence that they have forgiven the Applicant for assaulting them and were not concerned that he might assault them in the future. The Applicant submitted that this was different evidence from Ms A’s evidence as a spouse, and Ms B’s evidence as a loving sister-in-law, that they wanted the visa cancellation decision to be revoked so that the Applicant can remain in Australia.
The Applicant submitted that the Tribunal failed to deal with the impact of the Applicant’s removal on Ms A and Ms B, as victims of the Applicant, who had wholeheartedly forgiven him and no longer held any fear of him.”[201]
[200] [2021] FCA 1047.
[201] At [103] – [104].
His Honour was not persuaded that the Tribunal failed to take that evidence into account, observing that the Tribunal recognised that Ms A and Ms B were victims, and referring to Perram J’s statement in Bale that the Tribunal need not consider the impact of non-revocation repetitiously.[202] His Honour concluded that:
“On a fair reading of the Tribunal’s decision, I do not accept that the Tribunal only considered and dealt with Ms A’s claim as a wife, and Ms B’s claim as a sister-in-law, rather than also considering their claims as victims. That is a strained reading of the decision in which the Tribunal made it abundantly clear that it understood that Ms A and Ms B had reconciled with the Applicant since his assaults upon them.”[203]
[202] At [105] – [111].
[203] At [111].
In PGDX vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[204] PGDX’s ex-wife was the victim of the offending that led to the mandatory cancellation of his visa. The Tribunal’s written reasons for its decision to affirm the non-revocation decision dealt with the impact on his ex-wife, as far as she was a victim of his offending, under Paragraph 14.4 of Direction No. 79, as follows (footnotes omitted):
114.Strictly speaking there is only one “victim” in terms of the Applicant’s behaviour, although other members of his family may be considered as having been impacted by his actions. His ex-wife has given clear testimony to the effect that she wants the visa cancellation revoked. However, her reasons for this all relate to what she perceives to be in the best interests of the minor child, Child S. Even so, in one of her statements she refers to the “agony and trauma I have had to pass through”. In relation to the Applicant breaking and entering her premises prior to committing the sexual assault itself, she describes feelings of being “very scared and terrified” because she “couldn’t recognise him”. Again, this is indicative that she did not consent to either the Applicant coming to her home that night or her agreeing to have intercourse with him.
115.Despite this, the Applicant’s ex-wife has made consistent representations to support her ex-husband’s application to remain in Australia. She has even sought to appropriate some of the blame for their marriage problems to herself, and has indicated a desire for the Applicant to remain in Australia in order to help support their son.
116.…
117.There is nothing, however, which would allow any weight to be assigned to this consideration, rendering it effectively neutral in the present calculus of considerations.[205]
[204] [2021] FCA 1235.
[205] Ibid [72].
In relation to the non-citizen’s ties to the Australian community, the Tribunal noted said, of the ex-wife:
“Despite her outward support for revocation of his visa cancellation, his relationship with ex-wife is not positive (as addressed above) and his ties to her are tenuous, and any link appears to be, at most, by default of the fact that she is the mother of his son. This consideration weighs in favour of revocation but only marginally.”[206]
[206] At [13].
In his application to the Federal Court, PGDX contended that the Tribunal had erroneously failed to have proper regard to his ex-wife’s evidence that she forgave him, that he had made a mistake, that she did not think he would reoffend and that him remaining in Australia would make her life easier.
Allowing the application, Kerr J said:[207]
“...properly construed cl 14.4 of Direction No 79 operates in recognition that an offender’s victim is to be given appropriate agency in the decision making process. That means a victim’s interest in respect of the impact of such a decision must be taken into account by the decision-maker consistently with the usual position that a relevant consideration may weigh either in favour of, or against, whether or not to revoke the mandatory cancellation of a visa”.[208]
[207] At [9].
[208] At [9].
His Honour concluded that the impact on PGDX’s ex-wife was not taken into account as a victim of his offending. His Honour added that the views of the victim are not controlling, but must be taken into account, whether they are adverse to or inconsistent with, the interests of the offender.[209] His Honour further said that:
“Ms K PGDX’s status as a victim entitled her to limited agency such that that information had to be taken into account by the Tribunal as a mandatory relevant consideration. It was not. She was denied that agency.”[210]
[209] At [10] – [11].
[210] At [89].
In relation to Bale, His Honour said:
“I need not decide if generic matters of the kind identified by Perram J in Bale might in a different case be sufficient to engage the operation of cl 14.4 of Direction No 79. That is because Ms K PGDX’s several modest, mundane but direct claims regarding the impact on her of a decision to revoke the cancellation of her former husband’s visa extend beyond the generic. As she had explained to the Tribunal when she was asked if she had anything she wanted to add she informed the Tribunal that she wanted it to take into account that PGDX being given his visa back and being permitted to stay in Australia would make her life “a little bit easier”.[211]
[211] At [91].
It appears that the pivotal factor in PGDX was the Court’s finding that the impact of a non-revocation decision on PGDX’s ex-wife (as opposed to her child) was not taken into account at all. That fact sets it apart from Bale and XXBN where the impact on the victims was taken into account, just not under the heading of “Impact on Victims”. I see no reason why, in the present case, Mr J’s interests should be taken into account twice merely because he comes within the purview of two Other Considerations.
There is no evidence that Mr J has an interest in the outcome as a victim, separate to his interest as the Applicant’s brother. An example of a separate interests might be where a family member/victim’s spiritual beliefs compel them to forgive and seek to assist all who offend against them. But that is not the case here. Mr J is standing by the Applicant because they are brothers. As the Respondent in the present case pointed out, there is nothing unusual about a victim of domestic violence standing by the perpetrator. Nor is this a case where Mr J is the sole victim and the only person potentially at risk of further offending, which could potentially give his interests greater importance in the evaluative process. There are several victims and the community in general is at risk of further violent offending.
I do not think it appropriate to take a regimented, formulaic approach and take Mr J’s interests into account repetitiously. Attributing appropriate agency to Mr J requires me to take into account evidence about the impact of a non-revocation decision on him, cognisant of the fact that he is a family member and a victim of the Applicant’s offending. I shall do that when I consider the impact of a non-revocation decision on each member of the Applicant’s family of origin.
I apply the same reasoning to Ms E who is also a victim of the Applicant’s offending. While she is no longer the Applicant’s partner, she is the mother of his child and I will address the impact on her under Other Consideration (d).
There is no evidence about whether my decision would have any impact on the police officer who the Applicant kicked in the jaw or any of the Applicant’s other victims.
(d) Links to the Australian Community
In consideration of this Other Consideration (d), Paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in Paragraph 9.4.1 and Paragraph 9.4.2 respectively:
·the strength, nature, and duration of ties to Australia; and
·the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
The Applicant came to Australia at the age of 12 and lived in the wider Australian community for around 13 years. He commenced offending around seven years after arrival.
After being released on parole in February 2018, the Applicant worked on a chicken farm, then a sweet potato farm. Letters from both employers speak positively of the Applicant in a work context. He has made a positive contribution to the community, for a limited period, through employment. It does not appear that he has engaged in voluntary work apart from some work experience with a view to obtaining employment, or other productive community activities.
The Applicant’s immediate family and his nieces and nephews are all either Australian citizens or persons who have a right to reside indefinitely in Australia. He has a loving relationship with Child A, his parents, Mr J, Ms V and his nieces and nephews. He has a sister-in-law, Mr J’s wife. The Applicant appears to have some pro-social friends from school and some positive connections from his former employment.
I have already taken account of the impact of a non-revocation decision on his minor nieces and nephews. I accept that there will be a similar negative impact on the niece or nephew who is 18 years old. The views of the Applicant’s other brother are not known, and he was barely mentioned by the Applicant or any of his family in their evidence. I am unable to find that this decision would impact him. The views of Mr J’s wife are not known except that she would support Mr J’s efforts to assist in the Applicant’s rehabilitation. I am unable to find that a non-revocation decision would negatively impact her. Mr J said that as a family, together, they have forgiven the Applicant and would love him to be back in their family again. Mr J is committed to helping the Applicant despite his offending against him.
Based on evidence from the Applicant’s parents, Mr J and Ms V, I am satisfied that a non-revocation decision would cause those people emotional hardship. In addition, Ms V would not have the benefit of the Applicant’s help with her children. However, I also take into account the trouble the Applicant has caused his family, Mr J’s evidence that they hate it when he drinks and the fact that Mr J and his mother have sometimes not been in contact with him because of his bad behaviour. Should he return to that behaviour, his presence in the wider Australian community would potentially have a negative impact on his family.
The Applicant’s parents do not speak English. A few years ago, his mother developed mental health problems: she appears to suffer from schizophrenia.[212] With that and her inability to speak English, she cannot do much for herself.
[212] Transcript, page 22, lines 43 to 45
According to a former employer, the Applicant left his employment in November 2019 to relocate to Brisbane to care for his mother, and that while he was working there, he was taking care of both his parents with their day-to-day living due to their poor English skills.[213] I accept that. I note that according to Ms V, the Applicant was living with her in 2019 and 2020, so while I accept that he helped his parents in Brisbane, he was not providing in-home care.
[213] Exhibit G1, Section 501 G documents, G2, page 227
The Applicant’s father is able bodied and can do things for himself but this is limited because he does not speak English. He can go to the shop if it is within walking distance. He helps with cooking and doing jobs around the house.[214]
[214] Transcript page 132, line 23 to page 133, lines 1 to 10.
Currently, Ms V helps her mother go to medical appointments and in other ways. She said if the Applicant was released then when she is not able to help he can help.[215] When the lawyer for the Respondent pointed out that the Applicant cannot drive his mother to appointments because he does not have a valid license, Ms V said he could take their mother on the bus. When asked if their father could take their mother on the bus, she said she did not think he could catch a bus because he is old and he would not know where to go and where to catch it from. When asked if she could show him, she said it would be very hard as he does not catch onto things quickly. I think Ms V was downplaying her father’s capability. There was no evidence that the Applicant’s father has any cognitive impairment, and he is able to do his own shopping. I do not accept that he could not learn to travel to key places by bus.
[215] Transcript, page 128 lines 30 to 41.
The Applicant’ parents do not currently have anywhere to live so they are staying with Ms V and Mr J. Their homes are too small. The family would like the Applicant to return to them so he can help their parents find accommodation.[216] They receive Centrelink and can afford to rent their own place.[217]
[216]    Transcript, page hundred and 113, lines 32 to 48.
[217]    Transcript, page 123 lines 20 to 43.
I am satisfied that a non-revocation decision would mean he could not relieve some of the burden from Mr J and Ms V (and their respective families) and his father by assisting his parents. However, his family is currently coping without him.
Overall, I find that the Applicant’s removal to Burundi would adversely impact his parents Mr J and Ms V in an emotional and practical capacity.
Ms E did not express a direct interest in whether the Applicant remains in Australia or does not. While she referred to him helping with some responsibilities, it is not apparent what they could be. I accept that a non-revocation decision could impact her financially as she would lose the potential to get some financial assistance through child support from the Applicant. Ms E expressed an indirect interest in the Applicant getting his visa back because she thinks it would benefit her son, for whom she presumably wants the best. I take these impacts on Ms E into account. I have already taken Child A’s interests into account.
Impact on Australian business interests

There is no evidence that the Applicant’s removal from Australia would adversely impact on Australian business interests.
Conclusion: Other Consideration (d)
This Other Consideration weighs moderately in favour of revocation.
CONCLUSION
I am now required to weigh all the Considerations in accordance with the Direction. The Applicant will face serious hardship and risk of harm if removed to Burundi. His removal will negatively impact members of his family to varying degrees. Given those matters, compelling reasons are required to justify a non-revocation decision. In this case there are compelling reasons which are captured in Primary Considerations 1, 2 and 4.
I cannot exercise the discretion in s 501CA(4) of the Act to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 246 (two hundred and forty six) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy

................................[SGD]........................................
Associate
Dated: 12 November 2021

Date of hearing: 25 and 26 October 2021

Solicitor for the Applicant:

Ms Cindy Zhao

No Borders Law Group

Solicitor for the Respondent
Mr Oliver Morris

Clayton Utz

ANNEXURE A – EXHIBIT LIST

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

G1

Section 501 G-Documents (G1 to G19 paged 1 to 369)

R

-

7 September 2021

A1

Applicant's Statement of Facts, Issues and Contentions (paged 1 to 24) and annexures:

·    NB-1 – International Health and Medical Services (IHMS) Clinical Records (69 pages)

·    NB-2 – Email confirmation of attendance - Alcoholic Anonymous Shivering Denizens (5 pages)

·    NB-3 – Anger Management Workbook (38 pages)

·    NB-4 – Screenshots of Man-Up Meeting (2 pages)

·    NB-5 – Email confirmation of attendance SMART Recovery program (2 pages)

·    NB-6 – Bend Don’t Break workbook (1 page)

·    NB-7 – IHMS Clinical Records - follow up attendance record (5 pages)

·    NB-8 – Child Support payer transaction statement for period 15 October 2015 to 30 August 2021 (5 pages)

A

27 September 2021

27 September 2021

R1

Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 32)

R

14 October 2021

14 October 2021

R2

Human Rights Watch, Burundi: Allegations of Killings, Disappearances, Torture (17 September 2021)

R

17 September 2021

26 October 2021

T1

United Nations High Commissioner for Refugees (UNCHR) Report ‘2021 Burundi Refugee Return and Reintegration Plan January – December 2021’ (15 February 2021)

T

15 February 2021

25 October 2021

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1 to G19 paged 1 to 369)	R	-	7 September 2021
A1	Applicant's Statement of Facts, Issues and Contentions (paged 1 to 24) and annexures: · NB-1 – International Health and Medical Services (IHMS) Clinical Records (69 pages) · NB-2 – Email confirmation of attendance - Alcoholic Anonymous Shivering Denizens (5 pages) · NB-3 – Anger Management Workbook (38 pages) · NB-4 – Screenshots of Man-Up Meeting (2 pages) · NB-5 – Email confirmation of attendance SMART Recovery program (2 pages) · NB-6 – Bend Don’t Break workbook (1 page) · NB-7 – IHMS Clinical Records - follow up attendance record (5 pages) · NB-8 – Child Support payer transaction statement for period 15 October 2015 to 30 August 2021 (5 pages)	A	27 September 2021	27 September 2021
R1	Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 32)	R	14 October 2021	14 October 2021
R2	Human Rights Watch, Burundi: Allegations of Killings, Disappearances, Torture (17 September 2021)	R	17 September 2021	26 October 2021
T1	United Nations High Commissioner for Refugees (UNCHR) Report ‘2021 Burundi Refugee Return and Reintegration Plan January – December 2021’ (15 February 2021)	T	15 February 2021	25 October 2021