Kanneh and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Kanneh and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4976 (22 December 2022)
Division:GENERAL DIVISION
File Number:2022/8260
Re:Bramasi Kanneh
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Member D. Cosgrave
Date of decision: 22 December 2022
Date of written reasons: 17 February 2023
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review and substitutes a decision revoking the original visa cancellation.
.............[SGD]..............
Member D. Cosgrave
CATCHWORDS
MIGRATION - Mandatory visa cancellation – citizen of Liberia – Class XB Subclass 200 Refugee visa – failure to pass good character test –criminal record – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 90 applied – delegate’s decision set aside and substituted.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Regulations 1994 (Cth)
CASES
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
Bushell v Repatriation Commission (1992) 175 CLR 408
Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588
Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78
EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Matthews v Minister for Home Affairs [2020] FCAFC 146
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Murphy v Minister for Home Affairs [2018] FCA 1924
Nathanson v Minister for Home Affairs [2022] HCA 26
Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
SECONDARY MATERIALS
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021)
REASONS FOR DECISION
Member D. Cosgrave
17 February 2023
INTRODUCTION

The Applicant seeks review of the Respondent’s decision not to revoke the mandatory cancellation of his Class XB Subclass 200 Refugee visa (“the visa’).[1]
[1] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions (“RSFIC”), lodged on 29 November 2022, at [1].
The hearing was held by video at the Tribunal’s Brisbane Registry on 13 December 2022. The Applicant was represented by Ms Tomassen, a legal practitioner with Samuta McComber Lawyers. The Respondent was represented by Mr West, a legal practitioner with Sparke Helmore Lawyers.
On 22 December 2022 the Tribunal revoked the Respondent’s decision under review by providing a short form decision which is attached as Annexure B to these written reasons. The Tribunal now publishes its reasons for its decision made on 22 December 2022.
Unless the context indicates otherwise, passages quoted in bold font have been emphasised by the Tribunal.
FACTS
The Applicant is a 26-year-old citizen of Liberia (born 1 January 1997). He arrived in Australia on 5 December 2007 and was granted the visa. He has not departed Australia since he arrived.[2]
[2] Exhibit 1 (bookmarked G1- G11), G9, page 62. G documents are so named because they are provided under s 501G of the Migration Act 1958 (Cth). They consist of documents in the possession or control of the Respondent relevant to the making of a reviewable decision. They usually accompany the Minister’s written notice regarding a visa cancellation, refusal, or non-revocation.
He arrived in Australia with two sisters, a nephew and two nieces - Matenneh Kanneh, Massa Kanneh, Sekou Dukuly, Mawatta Kamara, and Mahadee Kanneh.[3]
[3] Exhibit 5, page 80.
The Applicant’s visa was cancelled on 4 May 2022 under section 501(3A) of the Migration Act 1958 (Cth) (“the Act”).[4]
[4] Exhibit 1, G3, page 14.
The visa was cancelled on the basis that the Applicant had a substantial criminal record as he had been sentenced to a term of imprisonment of more than 12 months and was serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or Territory (sections 501(6)(a) and 501(7)(c)) of the Act.[5]
[5] Ibid, G10.
On 24 May 2022, the Applicant sought revocation of the cancellation decision. This request was made within the prescribed 28-day period as required by regulation 2.52(2)(b) of the Migration Regulations 1994 (Cth) (“the Regulations”).[6]
[6] Ibid, G8.
On 10 October 2022, a delegate of the Respondent Minister decided, under section 501CA(4) of the Act, not to revoke the visa cancellation decision.[7]
[7] Ibid, G3.
On 10 October 2022, the Applicant lodged an application with the Tribunal for review of the delegate’s decision not to revoke the visa cancellation decision.
Offending History
The Applicant’s offending history is set out in:
(a)National Criminal History Check (dated 22 November 2021);[8]
(b)Sentencing Remarks of Her Honour Judge Sheridan of the District Court of Queensland (dated 27 August 2021);[9]
(c)IOMS Report (dated 20 December 2021)[10] and
(d)Department of Home Affairs File Note of call to Queensland Corrective Services (dated 4 May 2022).[11]
[8] Ibid, G4.
[9] Ibid, G5, page 28.
[10] Ibid, G6, page 33.
[11] Ibid, G10, page 70.
The Tribunal notes the Full Federal Court of Australia’s decision in Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23 (“Thornton”).
As the Applicant was born in 1997, the Tribunal has focused on the Applicant’s post-January 2015 offending as a consequence of Thornton and for more abundant caution.
The Applicant’s adult offending can be categorised under the following areas:
(a)driving offences;[12]
(b)drug offences;[13]
(c)family violence;[14]
(d)property-related offences;
(e)violence against government officials.
(f)armed robbery in company using personal violence.
(g)committing public nuisance.
[12] Exhibit 1.1, pages 1-80.
[13] Ibid, pages 100-101.
[14] Ibid, page 103.
On 17 February 2015, the Applicant was made the respondent on a domestic violence protection order[15], protecting his then girlfriend. The Applicant and the aggrieved provided differing accounts of the incident that led to that order being made, but both agreed it involved the Applicant being physically violent towards the aggrieved, including picking her up and throwing her to the ground.[16]
[15] Ibid, pages 103-104.
[16] Ibid, pages 105-107.
The Applicant’s first convictions as an adult were one count of committing public nuisance and one count of assaulting or obstructing police officer committed on 1 March 2015 after police were called to a disturbance between two groups at a unit complex.[17] Upon their arrival, the Applicant began verbally abusing the officers and continued to do so despite being directed by police to cease. The Applicant’s failure to comply with those directions led to his arrest, which he physically resisted.[18] He was fined for this offending.[19]
[17] Exhibit 1, G4, page 27.
[18] Exhibit 1.1, page 117.
[19] Exhibit 1, G4, page 27.
In April 2015, the Applicant committed two further acts of commit public nuisance. The first occurred on 6 April 2015 and involved him and a co-offender attempting to enter a takeaway restaurant late at night, as well as hassling customers for money, while armed with a metal and wooden pole respectively.[20] The second instance occurred just two days later, with the Applicant abusing, and physically threatening, police while they were assisting paramedics in treating another individual.[21] The Applicant was again fined for these offences.[22]
[20] Exhibit 1.1, page 123.
[21] Ibid, page 127.
[22] Exhibit 1, G4, page 27.
In 2019 the Applicant committed two traffic offences being exceed speed limit in a speed zone by less than 13 km/h and P1 holder fail to display legible red P plates at front.[23]
[23] Exhibit 1.1, pages 100-101.
On 24 and 25 August 2020, the Applicant committed the offences which led to the cancellation of his visa, being three counts of robbery armed/in company/wounded/used personal violence within a 24 hour period. The facts of that offending can be described as follows:
(a)The first was at a convenience store where the Applicant, after waiting until the store had emptied, drew a knife and pointed it at the cashier, demanding money from the tills. The Applicant stole cash in the amount of $500-$600 and fled the store.[24]
(b)The second saw the Applicant enter a service station, approached the counter and produced a knife. He proceeded to threaten the cashier by saying ‘give me the money, if not I am going to cut you open.’ The Applicant also demanded a large quantity of tobacco products and left the store with approximately $800.00 in cash and $800.00 in tobacco products.[25]
(c)The third offence involved the Applicant entering another service station, and demanding money from the cashier, who did not initially comply with this request. This led the Applicant to produce a knife and repeat his demands for cash. In an effort to stall the Applicant, the cashier handed the money over slowly, which led the Applicant to threaten to ‘jump on [him]’. Ultimately the Applicant left the store with $160.00 in cash and a pie.[26]
[24] Ibid, pages 95-96.
[25] Ibid, pages 96-97.
[26] Ibid, pages 97-98.
In total, the Applicant stole some $1,560 in cash, along with the $800.00 in tobacco products and the pie. Judge Sheridan DCJ noted the Applicant’s condition and operant state during this offending as:[27]
“It is accepted that at the time of the offending, you were significantly intoxicated, and it is also clear that it is right to describe your offending as unsophisticated. Your plea is to be considered an early plea, and you are certainly to be given the full benefit of that.”
[27] Exhibit 1, G5, page 29.
The Applicant admitted during his interview with police on 31 August 2020 that he was “drunk and high” at the time.[28]
[28] Exhibit 1.1, page 99.
On 4 September 2020 the Applicant was placed on remand.[29] The following instances while the Applicant was on remand are notable:
(a)He was involved in two physical altercations with other inmates.[30]
(b)He was found with ‘prison brew’ which he admitted being the owner of on two occasions.[31]
(c)He was noted as being verbally abusive towards corrections staff or failing to comply with their directions on nine occasions.[32]
[29] Exhibit 1, G6, page 33.
[30]Exhibit 1.1., pages 68 & 77.
[31] Ibid, pages 14 & 76.
[32] Ibid, pages 14-20, 54, 71-74 & 80.
On 27 August 2021 the Applicant pleaded guilty and was sentenced to three years imprisonment for the three counts of armed robbery. Her Honour declared the 365 days pre- sentence custody as time already served under the sentence and he was immediately released on parole.[33]
[33] Exhibit 1, G4, page 27.
By 7 September 2021 the Applicant had again started using methylamphetamine. On 14 September 2021 he reported he was using cannabis and methylamphetamine regularly.[34] It appears his methylamphetamine ceased by 13 October 2021, but his use of cannabis continued.[35]
[34]Exhibit 1.1, pages 38-39 & 41-42.
[35] Ibid, pages 32-33.
The Applicant’s parole was cancelled on 9 December 2021 due to his failure to report to Queensland Corrections on two occasions as directed and his failure to advise Queensland Corrections of a change in his address as required.[36] He was returned to prison the following day.[37]
[36] Ibid, page 45.
[37] Exhibit 1, G6, page 33.
Upon being returned to prison, the following incidents of note occurred:
(a)He was found with prison brew, which he accepted belonged to him, on three occasions;[38]
(b)He was involved in two physical altercations with other inmates.[39]
[38] Exhibit 1.1, pages 58, 64-66.
[39] Exhibit 1.1, pages 60-63.
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) and section 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction in this matter.
Section 501(3A) of the Act, read in conjunction with sections 501(6) and 501(7), oblige the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test and is serving a full-time sentence of imprisonment.
The ‘character test’ is defined in section 501(6) of the Act. A person fails the test if they have a ‘substantial criminal record’ as defined by section 501(7) of the Act. A ‘substantial criminal record’ includes the situation where a person is sentenced to a term of imprisonment of 12 months or more; per section 501(7)(c) of the Act.
Under section 501CA(3) of the Act, the Minister is obliged to give notice of a cancellation decision as soon as practicable after it is made, and to invite the affected person to make representations about revocation. Provisions relating to the form and process of those representations are found in Regulation 2.52 of the Regulations .
Section 501CA(4) of the Act confers a discretionary power upon the Minister to revoke the original decision if:
(a)the person whose visa has been cancelled makes representations in accordance with the invitation; and
(b)the Minister is satisfied that the person passes the character test, or there is another reason why the original decision should be revoked.
ISSUES
Character test
The Applicant’s visa was cancelled on the basis that the Applicant had a substantial criminal record as he had been sentenced to a term of imprisonment of more than 12 months and was serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or Territory (sections 501(6)(a) and 501(7)(c) of the Act).[40]
[40] Exhibit 1, G10.
On 27 August 2021 the Applicant was convicted in the District Court of Queensland of three counts of Armed Robbery, for which he was sentenced to three years’ imprisonment.[41]
[41] Ibid, G3, page 14.
Consequently, the Applicant does not pass the character test due to the operation of

sections 501(6)(a) and 501(7)(c) of the Act.
Accordingly, section 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation decision.
The remaining issue for the Tribunal to consider under section 501CA(4)(b)(ii) of the Act is whether the discretion to revoke the cancellation decision is enlivened by the Tribunal’s satisfaction that there is ‘another reason’ for revocation.[42] The Tribunal “stands in the shoes of the original decision-maker” but with regard for the situation at the time of its decision.[43]
[42] Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125, [3]-[5] (Katzmann J); [24] (Derrington J) [103] (O’Bryan J).
[43] Nathanson v Minister for Home Affairs [2022] HCA 26 (“Nathanson”); Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51]; Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 299 [40], 315 [100], 324-325 [134]; Bushell v Repatriation Commission (1992) 175 CLR 408, 425 (Brennan J); Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78, [10]-[11] (Logan, Perry, and Beach JJ).
Is there another reason why the cancellation of the Applicant’s visa should be revoked?
The Full Court of the Federal Court in Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 294 reflected with approval upon the reasoning in Viane[44] and at [27] identified the following principles as relevant to the statutory task conferred by s 501CA(4):
“… (1) If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.
(2) The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.
(3) The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.
(4) However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.
(5) Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.
(6) If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation.…”
[44] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).
When assessing and evaluating the factors weighing both for and against revoking a visa cancellation, the Tribunal is bound by section 499(2A) of the Act to comply with Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction or Direction 90”).[45]
[45] See Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337 at para 38.
The Direction
Section 499(1) of the Act empowers the Minister to give written directions to a person or body having functions or powers under the Act. Decision makers under the Act, except for the Minister acting personally, must apply the Direction.[46]
[46] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, at [4] (Rares, O’Callaghan and Jackson JJ).
The Direction contains mandatory and aspirational considerations guiding the exercise of statutory power under the Act.[47]
[47] BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99, at [22], citing with approval Matthews v Minister for Home Affairs [2020] FCAFC 146, at [45].

The following principles set out in Direction 90 inform the decision-making process:[48]
1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
5Decision-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 measureable risk of causing physical harm to the Australian community.
[48] Paragraph 5.2 of the Direction.
Paragraph 6 of the Direction provides that, informed by the above principles, a decision-maker must consider Paragraphs 8 and 9, where relevant, to the decision.
Paragraph 8 of the Direction provides the following primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)Whether the conduct engaged in constituted family violence;
(c)The best interests of minor children in Australia; and
(d)Expectations of the Australian community.
Paragraph 9 of the Direction identifies the following non-exhaustive list of other considerations to be considered where relevant:
(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.
Paragraph 7(1) of the Direction provides that appropriate weight should be given to ‘information and evidence from independent and authoritative sources.’
Paragraphs 7(2)-(3) of the Direction state that ‘Primary considerations should generally be given greater weight than the other considerations,’ and ‘One or more primary considerations may outweigh other primary considerations.’
This does not preclude the Tribunal giving the other considerations of Paragraph

9 equivalent, or even greater weight than a primary consideration, which turns on the specific circumstances of each case.[49] The weighing process is determined by decision-makers exercising the relevant power under the Act.[50]
[49] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, at [23] and [28] (Colvin J).
[50] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, at [57].
EVIDENCE
The following is a summary of the evidence before the Tribunal including the evidence of witnesses who appeared before the Tribunal. The evidence referred to below includes documentary evidence collated for the purposes of Section 501G of the Migration Act, documents tendered by the Respondent, evidence in additional written statements if provided and submitted to the Tribunal and evidence given by the witnesses at the hearing in response to questions in examination-in-chief, re-examination, under cross-examination and from the Tribunal.
Documentary evidence
The hearing received written evidence, which is attached to this Decision and marked ‘Annexure A’. The following documents were tendered into evidence:
(a)G-documents[51] numbering 93 pages;
(b)Applicant’s Statement of Facts, Issues and Contentions (“ASFIC”) dated 11 November 2022;[52]
(c)Respondent’s Statement of Facts, Issues and Contentions (“RSFIC”) dated 29 November 2022;[53]
(d)Supplementary G-documents numbering 23 pages;[54]
(e)Applicant’s Tender bundle numbering 144 pages;[55]
(f)Applicant’s Reply (“AR”) to the RSFIC dated 7 December 2022.[56]
[51] Exhibit 1.
[52] Exhibit 2.
[53] Exhibit 3.
[54]. Exhibit 1.1.
[55] Exhibit 5.
[56] Exhibit 4, Applicants Reply dated 27 October 2022 and Annexures.
The witnesses who gave evidence during the hearing were:
(a)The Applicant;
(b)Matenneh Kanneh (the Applicant’s older sister); and
(c)Alhaji Mohammed Kanneh (the Applicant’s nephew).
The Applicant’s evidence.
Key aspects of the Applicant’s evidence are summarised below:
(a)The Applicant gave evidence as to his memories of his early childhood living in Liberia including references to seeing people being tortured, limbs being amputated, people being killed or threatened with losing their lives.
(b)He recalled walking over dead bodies, being tortured and then moving through a series of refugee camps in Guinea.
(c)He indicated that life in the refugee camps was not ideal as people are still dying and being threatened with losing their lives.
(d)He stated that he had been diagnosed with schizophrenia, PTSD, depression and anxiety.
(e)His oral evidence suggests that his periods of homelessness aggravated his mental health conditions.
(f)He described his nephew Sekou’s developmental disability and how he has assisted his sister Manasseh with caring for Sekou.
(g)He described his concerns at the possibility of being returned to Liberia. These concerns can be categorised into three areas: jeopardy to his mental health, a concern that he may be killed and worry and anxiety about his family in Australia.
(h)He stated that his drug use involved alcohol, marijuana and methamphetamine.
(i)Under cross-examination he stated that the armed robberies he committed in August 2020 occurred the time when he was not taking his medication, was under stress and also under peer pressure. He further stated that he felt remorseful about what he had done after reading the reports of have his actions had affected his victims and how they struggled to go through their daily lives subsequent to the robberies.
(j)Under cross-examination he also delimited and contextualised a violent incident between himself and his girlfriend that occurred on 14 February 2015. He claimed that he was living with his girlfriend and her parents at the time on that in the course of smoking marijuana, an argument had broken out between him and his girlfriend which it escalated into what he described as "play fighting" and which objectively escalated to a physical confrontation and the police being called.
(k)In re-examination a described how he has assisted Sekou with getting dressed, helping Sekou put on socks and shoes and wiping Sekou’s mouth as Sekou has a tendency to drool.[57]
[57] A medical condition known as sialorrhea.
Evidence of Matenneh Kanneh
Matenneh Kanneh is the Applicant’s older sister, born on 1 January 1982. Her oral evidence is summarised below:[58]
(a)She stated that Muslims were targeted for killing during the Liberian civil conflict.
(b)She is Muslim.
(c)She stated that her son, Sekou, needs assistance when eating food as he does not swallow normally. Under cross examination she described an indeterminate level of NDIS support.
(d)She stated that the Applicant helps her by bathing and washing Sekou.
(e)She stated that the Applicant and Sekou have a good relationship and that Sekou asks after the Applicant when every sees a picture of the Applicant.
(f)She believes that if the Applicant is returned to Liberia, communication with him will be very hard to achieve and that he will become more depressed.
(g)Under cross-examination, she did not appear to have a detailed knowledge of the Applicant's specific crimes. She did however recall his smoking and drinking whilst in her house. She described her words and actions in trying to get the Applicant to stop doing this. She was not able to recall the exact date when the Applicant left her home.
(h)Under cross examination she expressed her desire for the Government to present the Applicant documents that both he and she could sign that forbids him taking drugs up. She also recalled her observation of the Applicant when the latter was a child.
[58] Transcript of 13 December 2022 (“Transcript”), pages 52 -68.
Evidence of Alhaji Mohammed Kanneh
Alhaji Mohammed Kanneh, born 1 January 1994, is the Applicant’s nephew. His oral evidence is summarised below:[59]
[59] Transcript, pages 69-78.
a)He stated that Muslims suffered from discrimination in Liberia and that the family name of "Bramasi” was commonly associated with Muslims creating a risk that the Applicant would be identified as a Muslim if he returned to Liberia.
b)He stated that, although he is older than the Applicant, he openly acknowledges the Applicant as his uncle and respects him as such, but also treats him like his brother.
c)He characterised his relationship with the Applicant as good and having a good connection between them.
d)He stated that if the Applicant was returned to the community, he would teach and educate the Applicant on how serious some of the Applicant’s offences are and how they are viewed and treated by the community. He also claimed that, if the Applicant was returned to the community, he will provide emotional support to him.
e)He gave evidence that Sekou Dukuly requires care and assistance and that the Applicant had played an important role in providing this before going into detention and jail. He asserted that the Applicant and Sekou have a bond and an effective way of communicating with one another and that Sekou shows distress when he realises that the Applicant is not around.
f)He stated that most of the immediate Kanneh family were killed in Liberia, including many of the adults. He said that he would be unable to afford to travel to Liberia to visit the Applicant if the Applicant was returned to Liberia.
g)He also described the emotional impact on the family that would likely occur if the Applicant was returned to Liberia.
h)Under cross-examination he indicated that he was generally aware of the Applicant's crimes including the armed robbery. He was also aware of the Applicant's drug use and took issue with that.
i)Under cross-examination he described that the Applicant would "just pop from nowhere" at the family home and eat their food, acknowledging that he had only seen the Applicant a few times during this period when the Applicant was homeless.
THE TRIBUNAL’S CONSIDERATION OF THE EVIDENCE
The Tribunal found the Applicant’s oral evidence to be generally straightforward and at times somewhat discursive. At other times he attempted at times to minimise his culpability for his crimes and actions or place them in a different context to that suggested by the available documentary evidence.
Matenneh Kanneh’s evidence provided detailed information regarding the Applicant’s family and how they left Liberia as refugees and made their way to Australia. The Tribunal found Ms Kanneh to be honest – at times harshly so - and has given her evidence consequential weight and credit.
Alhaji Mohammed Kanneh appeared generally honest and provided useful context to the Applicant’s family life, especially with his nephew, Sekou Dukuly. At other times he attempted to minimise the Applicant’s culpability or the context of his offences.
PRIMARY CONSIDERATIONS
Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct
Paragraph 8.1 of the Direction states:
1When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
2Decision-makers should also give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Tribunal consideration: The nature and seriousness of the Applicant’s conduct
Paragraph 8.1.1(1) of the Direction states that, in considering the non-citizen’s ‘criminal offending or other conduct to date’, decision-makers ‘must have regard to the following’:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)     violent and/or sexual crimes;
(ii)    crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)    acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)     causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197 A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
The Tribunal has considered the following remarks by Her Honour Judge Sheridan of the Queensland District Court on 27 August 2021 when sentencing the Applicant:[60]
[60] Exhibit 1, G5, page 29.
“The circumstances of your offending are set out in an agreed statement of facts. You were 23 at the time and you are now 24. Over a 24-hour period, you committed three armed robberies: one at 8.23 am on 24 August 2020, and that was committed in a 7- Eleven store; one at 1.08 pm at the Puma service station; and one at 7.50 am on 25 August 2020 at a BP service station. On each occasion, you were carrying a knife on you and you did at some point use that knife to point it at the person behind the counter and uttered words indicating that the person behind the counter must take all the cash from the till.
On one occasion, you told the person behind the counter:
“Give me the money. If not, I’m going to cut you open.”
On that occasion, you also demanded that you be given some smokes. On another occasion, while pointing the knife, repeatedly asking for the money from the till and you said:
“Open the till. Give the money or I’ll come and jump on you.”
At the BP service station, there were customers in the store, but they left and so it is not suggested that you threatened them or any other customers in the store.
At all three locations, your offending was captured on CCTV. From the 7-Eleven store, you stole an amount of between $500 and $600 dollars cash. From the Puma service station, you stole $800 worth of cash and a significant quantity of tobacco.
At the BP service station, you stole a pie and an amount of $160 cash. It is accepted that at the time of the offending, you were significantly intoxicated, and it is also clear that it is right to describe your offending as unsophisticated. Your plea is to be considered an early plea, and you are certainly to be given the full benefit of that.
In proceeding to sentence you, I do so having regard to the principles as they are set out in s 9 of the Penalties and Sentences Act 1992 (Qld), and having regard in particular to the factors that are set out in s 9(3). This being an offence of violence, imprisonment is not a last resort. Deterrence will be a significant factor for sentencing for the armed robbery.
Although I do not have victim impact statements, this type of offending must be terrifying for the attendants, and it does often result for those who this offending is taken against, suffering themselves lasting psychological consequences. Those who provide these services are recognised by the Courts as vulnerable to attack, and they must be protected, and the Courts must take a firm line in sentencing.”
Addressing the Applicant’s adult offending conduct from 2015 to date,[61] it is relevant to observe and consider:
(a)The majority of the Applicant’s adult offences occurred in 2015 and involved acts of public nuisance, often when he was homeless.
(b)There was one offence of ‘[PPRA] 790(1) Assault or obstruct police officer” (on 1 March 2015 with no conviction being recorded in the Brisbane Magistrates’ Court on 15 April 2015). This charge occurred after police were called to a disturbance between two groups at a unit complex. After the police arrived, the Applicant began verbally abusing the officers involved and continued to do so despite being directed by police to cease. The Applicant’s failure to comply with those directions led to his arrest, which he physically resisted[62]. He was fined for this offending.
(c)The three armed robberies committed over a single 24-hour period between 24 and 25 August 2020.
[61] Exhibit 1, G4, page 27.
[62] Exhibit 1.1, page 117.

The Tribunal has considered the Applicant’s[63] and Respondent’s[64] submissions about Paragraph 8.1.1 of the Direction.
[63] Exhibit 3, [25] – [70].
[64] Ibid, [30], [33], [34]-[37].
In essence:
(a)The Respondent contends that the Applicant’s offending must be viewed as very serious[65] and that the Applicant’s risk of subsequent offending should be assessed as unacceptable risk with the potential to cause significant harm to the members of the community.
(b)The Applicant’s representative contends[66] that the Applicant’s index offending – the three armed robberies – is serious in that it involved threats of personal violence and intimidation, but that it was neither premeditated or sophisticated and was fuelled by alcohol and methamphetamine.
[65] Ibid, [30].
[66] Exhibit 2, [33]-[34].
Paragraphs 8.1.1(1)(a)(i), 8.1.1(1)(a)(ii) and 8.1.1(1)(a)(iii) require the Tribunal to have regard to, and acknowledge that, violent and/or sexual crimes, crimes of a violent nature against women and acts of family violence are viewed very seriously.
Considering the abovementioned paragraphs, the Tribunal acknowledges the inherent violence of the Applicant's index offending and the violence demonstrated against his former girlfriend (noting that it was not a crime, he was not charged and once the domestic violence protection order was made he did not breach it). However, the nature of his relationship with his former girlfriend at the time of this incident places his actions within the category of family violence.
Paragraph 8.1.1(1)(b)(i) is not relevant as the Applicant has not committed any offences involving causing a person to enter into or to otherwise become a party to a forced marriage. There is no reference in the material to any formal conviction to such offending nor is there any reference to such conduct in an independent and/or authoritative police narrative or similar document.
Paragraph 8.1.1(1)(b)(ii) is relevant and engaged as the Applicant was convicted on 15 April 2015 of crimes against government representatives in the performance of their duties., Specifically, he was convicted in the Brisbane Magistrates Court of the charge of Assault or obstruct Police Officer on 1 March 2015.[67] This involved a sustained tirade of abuse directed at officers, which culminated in him physically resisting arrest. The Respondent contends this behaviour should be considered serious, as should the instances of the Applicant verbally abusing corrections officers while in prison.[68]
[67] Exhibit 1.1, page 27
[68] Ibid.
Paragraph 8.1.1(1)(b)(iii) refers to conduct forming ‘...the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion”. There is no reference in either party’s SFIC (or any other oral or written submission) propounding or mentioning this component of the Direction. The Tribunal finds that this paragraph of the Direction is not relevant to any assessment of the nature and seriousness of the Applicant’s conduct.
Paragraph 8.1.1(1)(b)(iv) is not relevant to any assessment of the nature and seriousness of the Applicant’s conduct. There is no reference in the material to a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or for an offence against section 197A of the Act.
Paragraph 8.1.1(1)(c) precludes the Tribunal from considering sentences imposed on this Applicant for:
(a)any violent offending he may have committed against women,
(b)acts of family violence; and
(c)any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.
The Applicant has no convictions for unlawful conduct arising from any of three offence types referred to in the preceding paragraph.
For his index offending the Applicant received a sentence of three years with immediate parole at sentencing as he had spent 365 days in custody prior to sentencing.[69]
[69] Exhibit 1, G4, page 27.
In relation to his other adult offending and convictions, the Applicant received fines in the sums of $300, $250 and $350, with the first and third of these having ‘no conviction recorded’ notations on his record.[70]
[70] Ibid.
Paragraph 8.1.1(1)(d) addresses two specific aspects of a non-citizen's offending: its frequency and/or whether there is any trend of increasing seriousness.
The Applicant’s adult offending involves four offences between March 2015 and August 2020. Three of these occurred between March and April 2015. The fourth was the group of three armed robberies in a single 24-hour period in August 2020. The Tribunal does not discern any frequency in offending based on the passage of time between these dates.
The group of three armed robberies in a single 24-hour period in August 2020 is very serious. However, the Tribunal does not consider that this constitutes a trend of increasing seriousness when combined with the three 2015 offences due to the amount of intervening time between 2015 and 2020.
Considering his prison conduct (two physical altercations with other prisoners, possessing prison brew and what may be termed as a degree of disrespect towards prison officers) in conjunction with the group of three armed robberies also fails to establish a trend given the disparities in the level of the Applicant’s conduct in question.
Paragraph 8.1.1(1)(e) requires the Tribunal to address the cumulative effect(s) of the Applicant’s repeated offending. The cumulative effects of the Applicant’s group of three armed robberies in a single 24-hour period on 24-25 August 2020 are likely significant and long-lasting for his victims. However, it is difficult to find any additive effect from the circumstances of his other adult offending. The combined cumulative effect slightly mitigates against a finding that the Applicant’s offending has been of a serious nature.
Paragraph 8.1.1(1)(f) is concerned with whether the Applicant has provided false or misleading information to the Minister’s department, including by not disclosing criminal offending. There does not appear to be anything in the evidence before the Tribunal to enliven this paragraph and consequently it is not relevant to assessing the nature and seriousness of the Applicant’s unlawful conduct in Australia.
Paragraph 8.1.1(1)(g): involves the issue of whether the Applicant has re-offended since being formally warned about the consequences of further offending in terms of their visa status to remain here. There does not appear to be anything in the evidence before the Tribunal to enliven this paragraph and it is not relevant to assessing the nature and seriousness of the Applicant’s unlawful conduct in Australia.
Tribunal findings: The nature and seriousness of the Applicant’s conduct
The Tribunal observes that the Applicant’s conduct in question can be divided between low-level offending (including his traffic offences) on one hand and the cluster of armed robberies in a singular 24-hour period.
Notwithstanding this dichotomy in addressing paragraph 8.1.1(1) of the Direction, the Tribunal has sought to apply and consider each of the relevant sub-paragraphs appearing in paragraph 8.1.1(1).
With particular reference to the relevant and applicable paragraphs referred to above, the Tribunal concludes that the totality of this Applicant’s unlawful conduct in Australia can be characterised as very serious.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Paragraph 8.1.2(1) of the Direction states:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers 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.
This aspect of the Direction requires the Tribunal to assess the risk the Applicant poses to the Australian community if he reoffends, taking into consideration the nature of any harm and its probability.
In assessing the risk, the Tribunal has first considered the Applicant’s[71] and Respondent’s submissions[72] about paragraph 8.1.2(2).
[71] Ibid, note 58.
[72] Ibid, n 59.
The Applicant, through his representative, contends that he presents with a significantly lower risk of reoffending in future due to several protective factors detailed in the ASFIC.[73]
[73] Exhibit 2, Para [49], [67].
The Respondent contends that the nature of the harm that would be caused if the Applicant were to reoffend is very serious.
The Respondent also contends that this harm is likely to not only be financial, but also psychological because of the likely fear any future armed robbery offences may create, as well as physical harm should he continue to behave in a violent fashion, such that the Australian community would have little tolerance for any likelihood of reoffending and future harm.
The Tribunal understands from this contention that the Respondent is focusing on the most serious instances of the Applicant’s offending, that of the armed robberies on 24-25 August 2020.
Paragraph 8.1.2(1)of the Directionprovides 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.
Additionally, some conduct and the consequential harm that would be caused, if that conduct were to be repeated, is so serious that any risk of such conduct being 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 three following 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)(b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the non-citizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Paragraph 8.1.2 (2) (a): The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct.
The Applicant's adult index offending, and other adult offending is described above. In relation to the index offending, he threatened three separate individuals with physical harm and violence.
The sentencing judge noted the Applicant as being ‘significantly intoxicated’ during this adult index offending.[74] The Applicant admitted during his interview with police on 31 August 2020 that he was ‘drunk and high’ at the time of the offending.[75]
[74] Exhibit 1, G5, page 29.
[75] Exhibit 1.1, page 99.
Little or no elaboration is required on the nature of the harm to individuals or the Australian community were this Applicant to re-offend in this manner. It would result in significant physical and psychological harm to a victim and the community’s policing, medical and judicial sentencing resources would be required to deal with the consequences of such conduct.
Paragraph 8.1.2 (2) (b): The likelihood of the non-citizen engaging in further criminal or other serious conduct.
Evidence on the likelihood of the Applicant engaging in further criminal or other serious conduct.
The Applicant’s Evidence
In his oral evidence the Applicant spoke of the remorse he was experiencing because of his offending and specifically remorse for the impact his actions had on his victims:
Well, now I feel terrible that I done that, you know, I put that much stress on those people and traumatised them, you know, like traumatised them. I feel remorseful what I did and if I could go back I wouldn’t do something like that because I come to understand – I read the paperwork of how what I did affected the people and how they struggled to go through their daily life and I sympathise with them and I’m remorseful for what I did and what I did affected them. And I think it’s wrong for somebody to have to make another person feel the way I made them feel, you know, and the things they had to go through.
I know I won’t be reoffending in doing armed robbery or any sort of crime. I think it’s wrong and I proved that I’m not when they let me out of gaol, I went out there, I never committed no other crime. I stick to finding a job and supporting myself instead of bringing harm to other people for my own profit.[76]
Other Evidence
[76] Transcript, page 11, lines 1-9.
The Tribunal notes that the main themes involved in the Applicant’s adult offending history are drug and alcohol abuse, homelessness and his untreated mental health condition.
Addressing his drug and alcohol abuse, the Applicant’s representative submitted that:[77]
(a)the Applicant was previously capable of remaining drug-free for a period of at least one and a half years in the community, between June 2018 and early 2020.
(b)the Applicant completed two separate substance intervention programs in August and September 2021.
(c)the Applicant created a Relapse Prevention Plan and a Discharge Action Plan in September 2021.
(d)the Applicant remained, for the most part, drug-free for a period of about three to four months in late 2021.
(e)the Applicant has been drug-free since his return to custody in December 2021.
(f)the Applicant appears to have remained drug-free for a period of 1.5 years after being in residential rehabilitation for 1.5 years, even without the support of his family.
[77] See Exhibits 2 and 4 generally.
The Respondent had provided, as part of its tendering of a supplementary set of G documents, the report of Ms Sara Jones, a clinical psychologist covering her 21 June 2021 pre-sentencing assessment of the Applicant [78].
[78] Exhibit 1.1, page 81.
Ms Jones applied the Level of Service Inventory – Revised (LSI-R) test to assess the Applicant's risk of general recidivism. Ms Jones states that the Applicant's overall general risk of reoffending falls in the Moderate Risk/Needs Range when assessed using this test.[79]
Tribunal’s Consideration: the likelihood of the non-citizen engaging in further criminal or other serious conduct.
[79] Ibid, page 82.
The Tribunal observes that the Applicant's efforts to deal with his drug and alcohol abuse, while apparently successful at the present, can be characterised as being in their initial phase.
It is also relevant that the Applicant and his sister have pro-social plans that will address the Applicant's homelessness and will allow the Applicant to engage with his mental health conditions.
The Tribunal finds that the Applicant's oral evidence of remorse, in the absence of other independent evidence, should be treated with a degree of caution in assessing the Applicant's recidivist risk.
The issues surrounding consideration of risk under s 501(6)(d) of the Act, from which paragraphs 8.1.2(1) and (2) of the Direction are drawn, have been extensively considered by the Tribunal and superior courts.[80]
[80] See, for example, Rahman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 888 (20 April 2020); QKVH and Minister for Home Affairs [2020] AATA 4431 (QKVH 2020); Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019); Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153.
The Full Court of the Federal Court in Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187, 194 stated that the reference to ‘criminal conduct’ is:
“…not concerned with whether the conduct has had some temporal result, such as the incurring of a conviction, but with the light that the conduct throws on the actor’s character. Of course, in the absence of a prosecution and conviction, satisfaction that criminal conduct has occurred will not be attained on slight material.”
The clear legislative intention is that the threshold is whether there is ‘a’ risk.[81]
The Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) specifically removed the word ‘significant’ from s 501(6)(d) of the Act leaving it as ‘a’ risk.[82]
On this occasion the Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Act 2014 stated (at [46]):
“The purpose of this amendment is to clarify the threshold of risk that a decision maker can accept before making a finding that the person does not pass the character test in relation to paragraph 501(6)(d) of the Migration Act. The intention is that the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk.”
[81] See the discussion in GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019) at [48]–[52].
[82] See the discussion in Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970 at [27].
In Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 (Sabharwal (FC)), the Full Court of the Federal Court (Perram, Murphy and Lee JJ) stated at [2]:
“… Section 501(6)(d)(i) provides that a person does not pass the character test if
“in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would ... engage in criminal conduct in Australia”. The section requires an evaluative judgment by the decision-maker, in the present case the Minister personally, as to whether the decision-maker is satisfied that there is such “a risk”. Then, if the decision-maker is so satisfied, the decision-maker has a discretion to refuse to grant a visa to the person.”
In Sabharwal(FC) the Full Court found that in that case the Minister had found that there was a risk that the Applicant would engage in criminal conduct in Australia. The Full Court stated that the Minister had said he ‘could not rule out the possibility of further offending by Mr Sabharwal.’[83] The Full Court, citing Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588, 608 [62] per Justice Moshinsky, found that the Minister’s statement was, in substance, also a finding that there was a risk of the Applicant
[83] Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160, [58] (“Sabharwal (FC)”).
re-offending.
In Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 Chief Justice Brennan, Justices Dawson, Toohey, Gaudron, McHugh and Gummow of the High Court observed as follows (at 574-575): [84]
“The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.”
(Added emphasis.)
[84] QKVH and the Minister for Home Affairs (“QKVH 2020”) [2020] AATA 4431 (2 November 2020) at [5].

Justice Mortimer also explored the notion of risk and its nexus to future possibility in Murphy v Minister for Home Affairs [2018] FCA 1924, [37], where Her Honour noted:[85]
“That is, part of the Tribunal’s task was to decide not only whether the applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be “tolerated”.”
Tribunal finding: the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
[85] Murphy v Minister for Home Affairs [2018] FCA 1924, [37].
The potential harm arising from a repeat of the Applicant’s conduct encompasses a broad range of physical, psychological, financial, and societal consequences.
The Applicant’s conduct to date has imposed costs on the community in terms of the investigative, judicial, and other resources required to address his offending.
In making its finding, the Tribunal notes that, in reaction to the risk factors contributing to the Applicant's offending, the Applicant, Alhaji Mohammed Kanneh and Matenneh Kanneh have planned and designed prophylactic measures to be implemented if the Applicant re-enters the Australian community.
The Tribunal also notes that the LSI-R test applied by Ms Jones is qualified as it does not explore offence or behaviour specific recidivism in terms of specific offences and only offers a probabilistic assessment, based on a North American jail population (noting that Applicant is of African origin) of the test subject’s general risk of recidivism.
The Tribunal finds that the Applicant's current recidivist risk profile – and consequently the risk he poses to the Australian community should he commit further offences or engage in other serious conduct -as moderate.
Conclusion: Primary consideration 1: Protection of the Australian community
The Tribunal finds this primary consideration weighs in favour of affirming the delegate’s decision to not revoke the cancellation of the Applicant’s visa.
Primary consideration 2: Family violence committed by the non-citizen
Paragraph 8.2 of the Direction states:
1The 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).
2This 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.
3In considering the seriousness of the family violence engaged in by the noncitizen, 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 noncitizen’s migration status, should the non-citizen engage in further acts of family violence.
As noted above, when the Applicant was 18, in February 2015, he was cited as the respondent on a domestic violence protection order intended to protect his then girlfriend.
The Applicant and his then girlfriend gave differing accounts of the incident that led to their order being made.
However, it was common ground between the Applicant and his then girlfriend that the incident in question involved the Applicant being physically violent with his then girlfriend. His physical actions included picking her up and throwing her to the ground.
The Applicant does not have any convictions for offending in a domestic context.
Was the Applicant’s then girlfriend a member of the Applicant’s family?
Analysis of the evidence
The Applicant gave oral evidence[86] that he was living with his then girlfriend, her father and her stepmother at the time of the incident and that they considered themselves to be in a relationship. He was not living with his sister Matennah Kanneh and the remainder of this family, as Matennah had kicked him out in 2014.[87]
[86] Transcript, page 35, lines 13-29.
[87] Transcript, page 18, line 27.
The relevant Queensland Police Service (QPS) report[88] includes the following description of what took place:
“At about 3:30pm on Saturday the 14th of February 2015 Police were called to attend [address redacted] in response to an urgent report of domestic violence occurring at that address. Upon arrival Police spoke with Bramasi Kanneh and [name of victim redacted] Police obtained versions from both persons. Police determined that KANNEH and [name of victim redacted] have been in a relationship for about 3 years and are currently living together at the address as boyfriend/girlfriend. The father and stepmother of [name of victim redacted] also reside at the address. Investigations revealed that domestic violence had occurred with KANNEH being the respondent and [name of victim redacted] the aggrieved. The respondent stated to Police that he and the aggrieved had spent the morning together and just prior to Police arrival they were seated on a bed underneath the residence having a conversation. The conversation turned into an argument and when the aggrieved started to hit the respondent he held her to stop this from continuing. When he released his grasp the aggrieved walked into a laundry a short distance away. The respondent followed her to retrieve an electrical cord to recharge a game he had been playing. The aggrieved tried to push him away but he continued to try to enter the laundry. The respondent then grabbed her and picked her up and put her down on the ground in the back yard. The aggrieved person’s parents then came into the yard and called the Police and the argument ceased. The aggrieved stated to Police that both persons had been sitting on the bed having a conversation which turned into an argument. The aggrieved slapped the respondent on the arm and he then held her down on the bed and slapped her. The aggrieved then got up from the bed and went into the laundry. The respondent followed her into the laundry and when the aggrieved told him to ‘get out’ he replied with ‘make me’ whilst standing in the doorway. The respondent grabbed the aggrieved by her throat however she managed to remove herself from his grasp. The respondent then picked her up off her feet and threw her down on the ground in the rear yard. The respondent held her down by her legs and said ‘I’m going to slam you on your head’. The respondent picked her up two more times and threw her on the ground. Police observed bruising, redness and a small graze on the arms of the aggrieved and a red mark on her neck. The respondent was questioned about the allegations made that he slapped her whilst they were on the bed which he denied. The respondent also denied grabbing the aggrieved by the throat but agreed that he picked her up and threw her on the ground. The respondent was questioned as to how the aggrieved received her injuries but he could not provide an explanation. The respondent stated to Police that they have argued in the past however it has not become physical. The aggrieved stated that the respondent is frequently violent towards her and that she is fearful of him however she
believes she will continue to see him in the future. Police believe it necessary
to make application for an order to protect the aggrieved due to the level of
violence used in this incident and the history of violence towards the
aggrieved.”
(Emphasis added)
[88] Exhibit 1.1, pages 102-107.
The expression “member of the person’s family” is not defined in the Direction. Nor is the word “family”. However, Section 5G of the Act provides that certain persons, including a de facto partner, are taken to be members of a person’s family. The expression “de facto partner” is defined in Section 5CB of the Act. Sections 5CB and 5G provide:
Section 5CB: De facto partner
De facto partners
(1) For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person.
De facto relationship
(2) For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:
(a) they have a mutual commitment to a shared life to the exclusion of all others; and
(b) the relationship between them is genuine and continuing; and
(c) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis; and
(d) they are not related by family (see subsection (4)).
(3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
Definition
(4) For the purposes of paragraph (2)(d), 2 persons are related by family if:
(a) one is the child (including an adopted child) of the other; or
(b) one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or
(c) they have a parent in common (who may be an adoptive parent of either or both of them).
For this purpose, disregard whether an adoption is declared void or has ceased to have effect.
….
Section 5G: Relationships and family members
(1) For the purposes of this Act, if one person is the child of another person because of the definition of child in section 5CA, relationships traced to or through that person are to be determined on the basis that the person is the child of the other person.
(2) For the purposes of this Act, the members of a person’s family and relatives of a person are taken to include the following:
(a) a de facto partner of the person;
(b) someone who is the child of the person, or of whom the person is the child, because of the definition of child in section 5CA;
(c) anyone else who would be a member of the person’s family or a relative of the person if someone mentioned in paragraph (a) or (b) is taken to be a member of the person’s family or a relative of the person.
This does not limit who is a member of a person’s family or relative of a person.
These sections do not contain an exhaustive definition of a member of a person’s family.
Notwithstanding the Applicant's representative’s submission that the Applicant had not engaged in conduct constituting family violence, from the other evidence before the Tribunal, the Tribunal considers that the Applicant and his then girlfriend were ‘de facto partners’ as at 14 February 2015.
Section 5G(2) (a) of the Act then applies to include the Applicant’s then girlfriend , as a ‘de facto partner’ as a member of the Applicant’s family.
The Direction defines ‘family violence’ as:
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, or his or her liberty.
Consequently, the Tribunal further finds that the Applicant’s actions constituted family violence under Paragraph 8.2 of the Direction as the actions the Applicant took on 14 February 2015 were violent and constituted an assault.
As per the material before the Tribunal, the Applicant was not convicted for his family violent offending hence paragraph 8.2(2)(a) of the Direction is not enlivened however because there is information before the Tribunal from an independent and authoritative source (being QPS) about the Applicant being involved in perpetration of family violence, paragraph 8.2(2)(b) of the Direction is enlivened.
Paragraph 8.2(3) requires the Tribunal to consider the following factors, where relevant, when considering the seriousness of the family violence engaged in by the Applicant:
(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 noncitizen’s migration status, should the non-citizen engage in further acts of family violence.
Sub-paragraph 8.2(3)(a): the Tribunal notes the respective submissions of the Applicant's representative and the Respondent that there is no frequency to the applicant's family violence offending.[89] The offending can be characterised as isolated as it involved a singular incident of family violence in 2015. A single data point cannot constitute a trend.
[89] Exhibits 2 & 3.
Sub-paragraph 8.2(3)(b): Following from the above and because there were no repeated acts, there can be no cumulative effect.
Sub-paragraph 8.2(3)(c): In considering this subparagraph, the Tribunal considers that the Applicant now appears to have begun to accept a degree of responsibility for this conduct since he was made aware of it.[90]
[90] Exhibit 4, [58]-[61].
The Applicant made no demonstrations of remorse specifically about this incident in his oral evidence. Consequently, the extent to which the Applicant understands the impact of his behaviour on the abused aggrieved is open to question.
The Applicant's representative submits that since becoming aware of the way the Australian community views family violence in assessing non – citizens’ conduct, the Applicant has engaged with and has been wait-listed with three services that provide counselling and teach remedial behaviour in this area.
Another relevant consideration is that the Applicant has not reoffended, breached the domestic violence order or engaged in any subsequent acts of family violence. The Applicant’s representative also submits that the Applicant has not been charged, convicted or found guilty of any offences that involve family violence.[91]
[91] Exhibit 2, [52].
Conclusion: Primary Consideration 2: Family violence committed by the non-citizen
This primary consideration weighs moderately, but not determinatively, in favour of affirming the delegate’s decision to not revoke the Applicant’s visa.
Primary consideration 3: Best interests of minor children in Australia affected by the decision.
Paragraph 8.3 of the Direction requires decision-makers to determine, where relevant, if revocation is in the best interests of any minor children in Australia.
This provision applies only if the child is, or would be, under 18 years old at the time when the application is decided.
If there are two or more relevant children, the best interests of each child affected by the decision whether to revoke cancellation of a visa should be given individual consideration, to the extent that their interests may differ.[92]
[92] Direction, para 8.3(3).
In considering the best interests of the child, the Direction requires the following factors at paragraph 8.3(4) to be considered where relevant:
(a)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);
(b)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;
(c)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;
(d)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;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
The Applicant has two minor nieces – [Child A] (born 2016) and [Child B] (born 2018).
Paragraph 8.3(4)(a): the Applicant concedes that his relationship with his nieces to date has been limited and marked by his absence due to his homelessness and time spent in custody and immigration detention.
Paragraph 8.3(4)(b): the Respondent contends that the Applicant is unlikely to play a positive parenting role in the future given his criminal history and previous drug use. The Applicant's representative submits that the applicant is likely to play a significant role in his nieces lives until they turn 18 if he is in the community, especially if he shares accommodation with their mother (his sister) and the two girls.

The Respondent's contention is better categorised and aligned with Paragraph 8.3(4)(c). The Applicant has the stronger argument in relation to this paragraph, especially given the sadly fragmented and truncated nature of the Applicant’s family due to their collective refugee experience. In short, it can be said that the Applicant may well play a role in the future as a parent figure to his two nieces.
Paragraph 8.3(4)(c): Given the nieces’ ages, the impact of the Applicant's prior conduct is likely to be limited to his absence in their lives to date. However, any future exposure to negative conduct of the kind previously demonstrated by the Applicant has the potential to have a negative impact on both children.
Paragraph 8.3(4)(d): Matenneh Kanneh has stated that the Applicant, if returned to the community, would assist greatly in helping to “relieve the burden of raising these children alone”, and “lighten the load of single parenting.”[93]
[93] Applicant’s Tender bundle, F4, [42]-[45].
Paragraph 8.3(4)(e): the Applicant's sister currently fulfils a parental role in relation to the two children.
Paragraph 8.3(4)(f): There is no evidence before the Tribunal as to the views of either charm. Given their ages, the Tribunal would accord limited weight to any such views.
Paragraph 8.3(4)(f): There is no evidence before the Tribunal that either child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the Applicant, or has otherwise being abused or neglected by the Applicant in any way, with a physically, sexually or mentally.
Conclusion: Primary Consideration 3: Best interests of minor children in Australia affected by the decision
The Tribunal accepts that revocation of the delegate’s decision is in the best interests of the Applicant’s two minor nieces, and that moderate weight should be attributed to this consideration.
Primary consideration 4: Expectations of the Australian community
Paragraph 8.4(1) of the Direction provides:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.”
Paragraph 8.4(2) of the Direction states that visa cancellation, refusal or non-revocation may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. Serious character concerns are raised because of conduct in Australia or elsewhere, of the following kind:
(a)acts of family violence;
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties;
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery;
(f)worker exploitation.
Paragraph 8.4(3) of the Direction provides that the above expectations apply, regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. As per paragraph 8.4(4), this consideration is ‘about the expectations of the Australian community as a whole’, and decision makers are to proceed based on the Government’s views as articulated in the Direction, without independently assessing the community’s expectations in the particular case.
Paragraph 8.4(4) of the Direction correlates with the reasoning of the Full Court of the Australian Federal Court (FCAFC) in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (“FYBR”).
Notwithstanding the different pathways in judicial reasoning, the plurality of the Court in FYBR held that “Expectations of the Australian community” is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.[94]
[94] FYBR (2019) 272 FCR 454 (“FYBR”), at 471–2 [66] (Charlesworth J), and 476 [91] (Stewart J).
The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[95]
[95] Ibid at 473 [75]– [76] (Charlesworth J).
The Tribunal notes the High Court of Australia refused an application for special leave to appeal from the orders in FYBR, holding at [301]–[303] that ‘there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court.’[96]
[96]FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56.
Observing the norm stipulated in paragraph 8.4(1), the Tribunal now considers the guidance provided by Principles 5.2(2), (3), (4) and (5) of the Direction:
2Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
5Decision-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 measureable risk of causing physical harm to the Australian community.
In addition to the guidance provided by paragraph 8.4(1) of the Direction, 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:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
The Tribunal has determined above that the Applicant has committed an act of family violence (albeit not convicted of this offence).
The Direction provides that the Australian community's expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the strain community. Paragraph 8.4(4) of the Direction further explains:
"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 [in paragraph 8.4 (1) – (3 from ) of the Direction], without independently assessing the community's expectations in the particular case."
With reference to the propositions in paragraph 8.4(1) of the Direction, the Tribunal understands this sub-paragraph’s framework as:
(a)the Australian community expects non-citizens to obey Australian laws while in Australia; and
(b)as a norm, where a non-citizen has either:
obreached the expectation in the immediately preceding sub-paragraph (a); or
othere is an unacceptable risk that the non-citizen will breach the expectation in the immediately preceding sub-paragraph (a);
then, the Australian community expects that the Australian government will not allow such a non-citizen to enter or remain in Australia.
The Tribunal is satisfied this Applicant has breached the Australian community’s expectations by his criminal offending committed on 24-25 August 2020 which involved a various serious breach of Australian laws. Therefore, the Australian community, ‘as a norm’ expects the Australian government not to allow him to remain in Australia.
While the Applicant may not have committed any of the offences stipulated in the paragraph 8.4(1)’s categories (a)-(f) (inclusive) the Tribunal has found that his offending committed on 24-25 August 2020 was serious and that he represents a moderate recidivist risk.
The remaining question is whether there are any factors modifying the Australian community’s expectations.
This question is informed by the principles in paragraphs 5.2(4) and (5) of the Direction. In summary, the relevant principles are:
(a)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa;
(b)the Australian community has a low tolerance of criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time;
(c)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; and
(d)the nature of a non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify a visa outcome that is not adverse to the non-citizen.
Sub-paragraph (a) uses the term ‘limited stay visa’ which is not defined in the Act. The Act does however create a taxonomy of visas. Relevantly for present purposes, Section 30 of the Act contemplates both (1) ‘permanent’ visas, which permit a right to remain, ‘indefinitely’; and (2) ‘temporary visas’, which provide a conditional right to remain. ‘Limited stay’, as used in the Direction, seems to be a reference to non-permanent or ‘temporary’ visas.
The Applicant received a Class XB Subclass 200 Refugee visa on 18 September 2007. This is a permanent visa which permits an indefinite stay in Australia.
This implies that sub-paragraph (a)’s lower tolerance does not apply.
Addressing sub-paragraph (b), the Applicant has spent approximately 60% of his life in Australia. Between 2015 – when he turned 18 – and the present, his offences, with the obvious exception of his armed robberies on 24-25 August 2020, can be characterised as crimes of being poor and homeless. Prior to COVID, the Applicant worked, had engaged in an apprenticeship and apparently enjoyed the jobs he was employed for.
Addressing sub-paragraph (c), and as noted above, the Applicant has spent approximately 60% of his life in Australia.
Addressing sub-paragraph (d), the Applicant’s conduct was serious and there is a risk (albeit slight) that he will re-offend. However, there are strong countervailing considerations, especially in the ‘other considerations’ set out in the Direction.
The main themes behind the Applicant’s offending – his homelessness, his mental health condition and his abuse of alcohol and drugs – are clearly risk factors.
The impact of the COVID pandemic on an individual with effectively no personal support behind him is also apparent to the Tribunal.
However, the Applicant appears to have identified these themes behind his offending as a result of the treatment he has received that recognised and began dealing with his mental health issues.
Viewing these as risk factors, the Tribunal takes notice of the risk management and risk mitigation steps the Applicant and his sister have planned or adopted.
He has sought and continues to seek additional help with his mental health. He has prepared a Relapse Prevention Plan. Manasseh Kanneh is prepared to provide accommodation provided that the Applicant abstain from drugs and alcohol.
These risk management and risk mitigation steps directly address the risk of recidivist behaviour.
The Tribunal concludes that the Australian community’s expectations are modified such that the community has a higher than usual tolerance of the criminal conduct committed by the Applicant.
Conclusion: Primary Consideration 4: Expectations of the Australian community
Primary Consideration 4 weighs strongly but non-determinatively for revocation of the mandatory cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary at this point to consider the Other Considerations listed in paragraph 9 of the Direction. The Tribunal will now consider each of the four sub-paragraphs (a), (b), (c) and (d) set out in Other Considerations.
Other Consideration(a): International non-refoulement obligations
The Direction recognises that it may not be possible at the Section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The Direction provides that the process for determining protection visa applications is specifically designed for consideration of
[97] Direction paragraph 9.1(6).
non-refoulement obligations as given effect by the Act.[97]
Paragraph 9.1 of the Direction provides:
1A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing. Accordingly, in considering non-refoulement obligations where relevant, decision-makers should follow the tests enunciated in the Act.
2In making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen's criminal offending or other serious conduct. In doing so, decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
3However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa. This is because such a decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen applies for a protection visa, the non-citizen would not be liable to be removed while their valid visa application is being determined.
4Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa under section 501 of the Act, in a request to revoke under section 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).
5International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.
6(6) It may not be possible at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of nonrefoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.
7Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the noncitizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.
8If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia's international non-refoulement obligations.

Section 5 of the Act defines ‘non-refoulement obligations’ non-exhaustively as including Australia’s obligations as a party to the Conventions, Protocols and Covenants listed at paragraph 9.1(1) of the Direction and ‘any obligations accorded by customary international law that are of a similar kind to those mentioned’ in those treaties. The term, however, “is not confined to the protection obligations to which s 36(2) refers’.[98]
[98] Ibrahim v Minister for Home Affairs (2019) 270 FCR 12 at 35 [103].
On 11 May 2022, the High Court of Australia – in its decision of Plaintiff M1/2021 v Minister for Home Affairs[99] re-visited the question of whether a decision-maker can, “defer” consideration of Australia’s non-refoulement obligations to a future date or event, such as if the Applicant were to apply for a protection visa. Prevailing authority militated against any such deferral by a decision-maker even in circumstances where an Applicant were able to seek a protection visa.[100]
[99] [2022] HCA 17. Date of judgment: 11 May 2022.
[100] Ali v Minister for Home Affairs[2020] FCAFC 109.
The High Court’s approach was expressed as follows:
“Decision-makers' approach to non-refoulement
[28] Where the representations do not include, or the circumstances do not suggest, a non-refoulement claim, there is nothing in the text of s 501CA, or its subject matter, scope and purpose, that requires the Minister to take account of any non-refoulement obligations when deciding whether to revoke the cancellation of any visa that is not a protection visa.
[29] Where the representations do include, or the circumstances do suggest, a non-refoulement claim by reference to unenacted international non-refoulement obligations, that claim may be considered by the decisionmaker under s 501CA(4). But those obligations cannot be, and are not, mandatory relevant considerations under s 501CA(4) attracting judicial review for jurisdictional error– they are not part of Australia's domestic law.
[30] Where the representations do include, or the circumstances do suggest, a claim of non-refoulement under domestic law, again the claim may be considered by the decision-maker under s 501CA(4), but one available outcome for the decision-maker is to defer assessment of whether the former visa holder is owed those non-refoulement obligations on the basis that it is open to the former visa holder to apply for a protection visa.”
[The Tribunal’s emphasis]
In Plaintiff M1/2021, the High Court plurality clarified that consideration of non-refoulement obligations can be deferred where a non-refoulement claim is made or arises on the facts and the person is able to make a valid application for a protection visa.
The decision settles the previously unsettled state of the law on this issue and, to our minds, confirms that it is permissible for a merits-based decision-maker applying subsection 501(2) of the Act to determine whether the relevant discretion can be exercised to have regard to the fact that a person may make a protection visa application.
However, the Tribunal understands the plurality in Plaintiff M1/2021 to still require a merits-based decision-maker’s reasons to demonstrate that non-refoulement claims have been read, identified, understood, and evaluated, but does not compel that decision-maker to undertake a protection assessment before considering removal of a non-citizen from Australia.
It may be consequently necessary to take account of alleged or claimed facts underpinning such claims:
(a)where those alleged facts/claims are relied upon for establishing “another reason” why the cancellation decision under Section 501CA should be revoked; or
(b)where they are relied upon as any other matter relevant to the exercise of the discretion to cancel visas pursuant to Section 501.
With an abundance of caution, the Tribunal has interpreted the Applicant’s position to be such that he is making representations that do include, and/or that the circumstances of this case do suggest, a claim of non-refoulement under Australia’s domestic law. The Tribunal will take account of the alleged facts or claims propounded by the Applicant as engaging any non-refoulement obligations Australia may owe him.
The Applicant’s claims – written
In the Applicant’s Request for Revocation of a Mandatory Visa Cancellation form dated 5 May 2022[101] he wrote under the box marked Reasons for Revocation:
"My country of citizen is still a war zone and if I am deported I am scared in my life will be in jeputy (sic). The reason why me and my family moved to Australia. Running away from war and running for our lives. As well as seeking a better life and better future employment.”
[101] Exhibit 1, G8, page 42.
In answer to the question in the Personal Circumstances Form[102] "Do you have any concerns or views about what will happen to you if you were to return to your country of citizenship?” the Applicant wrote:
“I will get kill it still a war zone, civil unrest.”
[102] Ibid, page 58.
The Applicant’s claims – oral
The Applicant provided no oral evidence about his claimed fear of harm upon a return to Liberia.
The Applicant’s claims – submissions by his representative
Parsing the written submissions of the Applicant's representative, the Tribunal identifies the following claims:[103]
(a)The Applicant fears being subjected to significant harm in Liberia.
(b)He is afraid he will be hunted down by members of the Gisi or Kissi ethnic group.
(c)Liberia has civil unrest and as a war zone.
[103] Exhibit 2, [97]-[102].
There is a further claim that the Applicant is entitled to non-refoulement obligations because he faces a real risk of suffering and harm in Liberia, which includes a decline in his mental health and a risk to his safety.[104] This is more appropriately considered under Other Consideration (b) Extent of impediments if removed.
[104] Ibid, [101].]
The BTI 2022 Liberia country report[105] contradicts both the Applicant's claims and the Applicant's representative’s submission that Liberia is a war zone. The country report states that Liberia has "evolved into a remarkably peaceful electoral democracy."[106]
[105] Exhibit 1.1, page 138.
[106] Ibid page 140.
The Applicant’s material provides some evidence about inter-ethnic tribal violence however this was not indicative of the specifics of the risk of significant harm to him in Liberia.[107]
[107] Exhibit 5, pages 134 and 141.
It is relevant to note that the BTI 2022 Liberia country report does raise tensions between unspecified ethnic groups and specified ethnic groups as well as between the Christian majority and Muslim minority in Liberia.
Conclusion: Other Consideration (a): International non-refoulement obligations
The Tribunal considers that the Applicant’s claims are either too generically stated, or otherwise not articulated with sufficient particularity to his own circumstances such as to be capable of reliable assessment for present purposes.
However, the Tribunal will not arbitrarily dismiss the Applicant’s claimed fears of harm upon returning to Liberia as totally remote, fanciful and otherwise lacking any credence.
The Liberian civil wars undoubtedly intensified the political, economic, ethnic, and religious conflicts in Liberia.
The Applicant is of Muslim descent (although he is now a Jehovah’s Witness) and evidence was given that the family names of ‘Bramasi” and ‘Kanneh” are seen as connected with Liberia’s Muslim population.
For that reason, it is reasonable to conclude that the Applicant would be exposed to some measure of risk, the extent of which is not capable of being known on the current state of the material.
The Tribunal finds that the Applicant’s claimed fear(s) of harm upon a return to Liberia attract a moderate, but not determinative, level of weight in favour of revoking the delegate’s decision under review.
Other Consideration(b): Extent of impediments if removed
Paragraph 9.2(1) of the Direction provides:
1Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)The non-citizen’s age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.
The Applicant’s claims – written
In completing his Request for Revocation of a Mandatory Visa Cancellation, the Applicant wrote:[108]
“If am send back to Liberia all my mental illness will be awakened from all the traumas I suffer as a child and more traumas will be added on with no way out. Australia is the country I have known and it way of life I am use to."
[108] Exhibit 1, G8, page 43.
In his Personal Circumstances Form, responding to the question "Do you have any diagnosed medical or psychological conditions?" the Applicant answered[109]:
"scitsafrenia (sic), PTSD, anxiety, depression."
[109] Ibid, page 57.
Responding to the question "Are there any other problems you would face if you have to return to your country of citizenship?" the Applicant answered:[110]
“no support of my medical for my illness I will be looked down on and prey onto”
[110] Ibid , page 58.
The Applicant’s claims – oral
In his oral evidence the Applicant stated:[111]
What are your concerns about being deported to Liberia?
I’m concerned that my mental health will really decline because that is the place where all these mental health issues started and being in that area it would decline my mental health issues. And I’ll be in fear of my life, you know, because I was taken from a young age and was – what’s the word I’m looking for – all the things that the rebels made me do, if I’m returned there and one of them see me and recognise me, I’m definitely a dead man, a dead man walking if I’m to return back there. And I wouldn’t be able to have money to support myself, I would have no roof over my head and I wouldn’t have medication to, you know, ease my mental illness.
[111] Transcript, page 15, lines 5-14.
The Applicant’s claims – submissions by his representative
The Applicant’s representative made the following submissions on this point:[112]
[112] Exhibit 4.
(a)Due to the previous trauma the Applicant experienced in Liberia as a child, his schizophrenia and PTSD would be significantly exacerbated by returning to the location which is the source of his trauma.
(b)As far as the Applicant or his family are aware, they have no remaining family members in Liberia. Other family members in Liberia were either killed or disappeared as a consequence of the war in Liberia. Return to Liberia would result in the Applicant being left alone with no family support.
(c)The Applicant has only spent approximately the first three years of his life in Liberia. He spent the next seven years in a Guinea refugee camp before coming to Australia. He is almost entirely unfamiliar with the country to which he might be returned.
(d)The Applicant would face significant language and cultural barriers. He no longer speaks Gbandi, the language of his people, and that his family have lost almost all cultural ties with the Gbandi people as a result of their flight from Liberia. The Applicant would suffer significantly from this cultural isolation.
(e)The Applicant has significant mental health diagnoses, including schizophrenia, PTSD and depression. he requires a very high level of support to manage his mental health issues. It is unlikely the Applicant will be able to receive, or afford, this necessary level of care in Liberia.
(f)The psychologist Ms Sara Jones made recommendations in 2021 that the Applicant access psychiatric services and have “ongoing and regular mental health engagement”[113].
[113]Exhibit 1.1, pages 92 & 93.
(g)Upon his first admission to prison, the Applicant was regarded as a “high risk prisoner” by a prison psychologist, on account of “a history of suicide attempts of high lethality” and his lack of medication[114]. If the Applicant’s mental health deteriorated so quickly upon admission to prison, it is reasonable to infer that his mental health would deteriorate in a similar manner upon his return to Liberia – another completely unfamiliar environment. This would be compounded by any lack of medication in Liberia, and/or any transitional lack of access to medication during the transfer process, as it was during the transfer to prison.
[114] Ibid, page 1.
(h)In 2016, the World Health Organisation (WHO) provided the following update on Liberian mental health services:[115]
[115] Exhibit 5, page 135.
“As many as 1 in 5 Liberians suffer a mild to moderate mental disorder, according to WHO estimates, yet the country has only one registered psychiatrist and, until recently, the vast majority of health workers had a limited understanding of mental illness.”
(i)WHO then reported in 2017 that: “the [Liberian] mental health system remains under-resourced and fragile”, particularly because it was at that time “wholly dependent upon external donors for the financial of mental health services and psychiatric training”. Its report warned that:[116]
[116] Ibid, page 136.
“Severe mental illness and neurological disorders… are highly stigmatized among Liberians, and untreated mentally ill persons are likely to suffer from extreme abuse. People believe that mental illness is contagious, that it is caused by witchcraft, and that it is retribution for misdeeds caused during the war. In order to manage the physical movements and behaviors (sic) of people with mental illness, community members may resort to extreme physical punishment like tying people down by their wrists and ankles, binding them to a tree or a house … People with serious mental illnesses are often beaten, subject to witchcraft trials, and raped.”
(j)In November 2018, there was an “inadequate availability of mental health services” in Liberia.[117] The November 2018 Liberian Noncommunicable Diseases & Injuries (NCDI) Poverty Commission Report from found that there were low levels of medication available for the management of various mental health issues, including low levels of specific medications for depression and psychosis.
(k)The 2017 WHO Report also described the importance of the “informal social sector” in providing psychosocial support to Liberians, particularly the strong importance of “family ties and community-based social networks”, which serve as “protective resources under conditions of extreme stress or social transition”. The following comment by the WHO is notable:
“A lack of family and community support for individuals with mental disorders can undermine their ability to access healthcare, inhibit social acceptance, create poverty and undermine economic well-being, allow family and community members to violate basic human rights, and expose these individuals to extreme violence.”
(l)The 2022 BTI report supports the conclusion that the Liberian state effectively provides few social services.
(m)In October 2022, the World Bank as recently as has reported that “80 percent of [households in Liberia] reported that they were worried about not having enough food to eat in July 2021”, and that 34.6% of Liberians were living below the international extreme poverty line ($2.15 USD per person per day) in 2022. Moreover, “67 percent of the expenditure of the average household is devoted to food purchases”.
(n)The Applicant struggled to afford basic necessities such as food and housing in Australia, which has a robust social security system and significantly less national poverty. Even if the Applicant were able to secure employment as suggested by the Respondent, the Applicant submits that it is unlikely he will be able to avoid the poverty referred to above.
[117] Ibid, page 137.
The Respondent’s written submissions
The Respondent made the following submissions on this point:[118]
(a)The Respondent agreed with the Applicant’s diagnoses of anxiety, depression, PTSD and schizophrenia (paragraph 9.2(1)(a) of the Direction) but contends that the Applicant would have access to the same social, medical and economic support available to other citizens of Liberia, however limited such support may be.
(b)As the Applicant worked as a labourer and an apprentice from 2012-2019, the Respondent contends that they would be able to find similar employment in Liberia. In support of this submission, the Respondent also submits that the Applicant has some familiarity with Liberia as he spent approximately nine of his childhood years there[119].
(c)The Respondent, while acknowledging that the Applicant is likely to face some difficulty in re-establishing himself in Liberia, contends that the impediments would not be insurmountable, particularly where the official language of Liberia is English.
(d)Although the Tribunal may find that this consideration weighs in the Applicant’s favour, the Respondent contends that if the Tribunal finds that this consideration weighs in the Applicant’s favour, it does not outweigh the primary considerations weighing heavily in favour of non-revocation.
The Tribunal’s analysis
[118] Exhibit 3.
[119] Exhibit 1, G9.
Sub-paragraph 9.2(1)(a) – the non-citizen’s age and health
The Applicant is 26 years of age.
The Tribunal accepts that if the Applicant is removed from Australia to Liberia ,this will cause the Applicant emotional hardship, as well as worry for his family in Australia.
The Tribunal accepts that being returned to Liberia could impact his mental health diagnoses of schizophrenia, PTSD, depression and anxiety.
Sub-paragraph 9.2(1)(b) – any substantial language or cultural barriers
The Applicant was born in Liberia in 1997, became a refugee in Guinea in 2000 and remained in refugee placements and camps until his arrival in Australia in 2007.
The Applicant has lived his life predominantly in Australia with minimal life experience of Liberia – and certainly without any meaningful adult experience of Liberia.
The Tribunal accepts that the Applicant will face significant or substantial language or cultural barriers impeding his return and re-settlement in Liberia.
Sub-paragraph 9.2(1)(c) - any social, medical and/or economic support available to them in that country
The Tribunal considers that the preponderance of evidence shows that the medical and psychological services available in Liberia are not comparable to what is available in Australia and fall below the level of services available in Australia.
Conclusion: Other consideration (b): Extent of impediments if removed
Having regard to the analysis referrable to each of the three sub-paragraph components of this other consideration (b), the Tribunal is of the view that this consideration confers a strong weight in favour of revocation of the delegate’s decision under review.
Other consideration (c): Impact on victims
Paragraph 9.3(1) of the Direction 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.
There is no direct evidence from any of the victims of the Applicant’s offending.
Both the Applicant and the Respondent contend that this other consideration (c) should be given a neutral weight.
Conclusion: Other consideration (c): Impact on victims
The Tribunal gives this Other Consideration (c) neutral weight.
Other consideration (d): Links to the Australian community

Paragraph 9.4 of the Direction requires that decision-makers must have regard to an applicant's links to the Australian community.
There are two factors which the Tribunal must assess in determining the level of weight allocable to Other Consideration (d). These are:
(a)Paragraph 9.4.1: the strength, nature, and duration of ties to Australia; and
(b)Paragraph 9.4.2: the impact on Australian business interests if the applicant cannot remain here.
The Tribunal will consider each of these in turn.
Paragraph 9.4.1 Strength, nature and duration of ties to Australia
Paragraph 9.4.1 of the Direction states:
1Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
2Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the noncitizen has to the Australian community. In doing so, decision-makers must have regard to:
(a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
In addressing Paragraph 9.4.1, the Tribunal will consider the following three elements:
(a)First, it is necessary to have regard to the impact of a non-revocation decision on the Applicant’s, “immediate family members” where those people have a right to remain in Australia indefinitely.
(b)Second, it is necessary consider the impact of a non-revocation decision by considering the strength, nature, and duration of any other ties the Applicant has to the Australian community.
(c)Third, it is necessary to assess the strength, nature, and duration of any other family or social links the Applicant may have with people who have an indefinite right to remain in Australia.
The Tribunal will address each component in turn.
Impact of non-revocation on the Applicant’s immediate family
This first exercise requires identifying the Applicant’s immediate family in Australia.
Based on the statements and evidence provided by the Applicant, his representatives and the lay witnesses, the following family members in Australia can be identified:
·His two sisters, Matenneh Kanneh and Massa Kanneh.
·His nephews, Alhaji Mohamed Matenneh and Sekou Dukuly.
·His nieces, Mawatta Kamara, Mahadee Kanneh, Child A and Child B
As far as the Applicant is aware, the individuals above are his only surviving family.
His parents and all his other siblings or extended family members either died or went missing as a consequence of the Second Liberian Civil War. Consequently, the Applicant’s entire support network is based in Australia.
While there are few members of the Kanneh / Kamara family in Australia, this does not differentiate the family from other Australian families. However, their experience of conflict, death and a refugee existence does distinguish them and suggests that there are greater bonds here than would be commonly found in Australian families.
The Applicant’s older sister Matenneh leads a busy life as a single mother of three dependent children. It is clear that, if the Applicant re-enters the community and resides with his immediate family, he is likely to provide support to her, especially with regard to her son Sekou Dukuly.
Considering the evidence around the Applicant’s immediate family in Australia, the Tribunal finds that the strength, nature and duration of his ties to those immediate family members in Australia weighs strongly in favour of revocation of the mandatory cancellation decision under review.
Impact of non-revocation on the strength, nature, and duration of “other ties” – length of residence
There are two necessary enquiries referable to the extent of the Applicant’s, “other ties” to Australia.
The first of those involves the question of how long he has resided in Australia. As mentioned earlier, the Applicant came to Australia as a ten-year-old. It is safe to find that he has spent most of his life, and all of his adult life, in Australia.
The second inquiry involves an application of the two tempering sub-elements in paragraph 9.4.1(2)(a) of the Direction.
The first of those sub-elements requires me to allocate less weight if the Applicant began offending soon after he arrived here. This is not the case here.
The second of the two tempering sub-elements requires an assessment of the Applicant’s positive contributions to the Australian community. The Applicant has worked and undertaken formal qualification training in a variety of jobs but has been in prison or in custody for much of the past three years. But for the COVID pandemic,[120] it is likely that the Applicant would have continued working.
[120] Transcript, page 29, lines 26 -35
This second tempering sub-element can be applied in favour of this Applicant but with a weight proportionate to the relatively low level of the Applicant’s contributions to the Australian community.
In conclusion, the sum of the consideration of the two tempering sub-elements carries a slight weight in favour of the revocation of the mandatory cancellation decision under review.
Impact of non-revocation on strength, nature, and duration of “other ties” – any other family or social links
There was no evidence of other significant ties before the Tribunal and this element will be given a neutral weight.
Paragraph 9.4.2: the impact on Australian business interests if the applicant cannot remain here.
Paragraph 9.4.2(3) compels an assessment of the Applicant’s employment links to Australia with reference to any impact his removal may have on, “Australian business interests”.
The Tribunal finds that this element of Other Consideration (d) is not relevant and will be given a neutral weight.
Findings: Other Considerations
I summarise the respective weights I have allocated to each of the Other Considerations (specified in the Direction) relevant to the present matter:
(a)international non-refoulement obligations: a moderate, but not determinative weight in favour of revocation of the delegate’s decision under review;
(b)extent of impediments if removed: this consideration confers a strong weight in favour of revocation of the delegate’s decision under review;
(c)impact on victims: has a neutral weight; and
(d)links to the Australian community: carries a strong weight in favour of revocation of the delegate’s decision under review.
ADDITIONAL CONSIDERATIONS
The Direction does not limit the other considerations to those listed in the Direction (para 9(1) of Direction).[121]
[121] Per Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471.
The Tribunal will now consider an additional submission from the Applicant that revocation of the delegate’s decision under review is in the best interests of the Applicant’s nephew, Sekou Dukuly.
The Applicant’s Oral Evidence
The Applicant gave the following oral evidence in examination-in-chief about Sekou (“Sheku”) Dukuly:[122]
[122] Transcript, page 12, line 45 – page 13, line 38.
Do you know what kind of disability Sheku has?
Yes, Sheku has a disability that makes spit come out of his mouth and it swollen up his tongue from being able to speak.
And what kind of things does Sheku need help with?
Well, he need help in a way for somebody who will be able to get in contact with him, somebody who is there to understand what he’s saying and what he needs and people who will be able to support him in his future life because he doesn’t have that much of mental capacity. So his mental capacity it isn’t that much so he needs people around him who support him, people who love him, people who can understand him easily so he doesn’t continue repeating himself. Yes, people who have been with him for a while and who will be able to take him to recreational activities.
And what role have you specifically played in helping to take care of Sheku?
Well, I have played a couple of roles of, you know, being a brother to him because we have that kind of relationship, a best friend. Somebody who provide some food for him, provide him comfort, provide him with an environment that is safe for him to express himself and somebody who’s able to take him on activities. You know, I’ve come to know him for so long that I know him because I know him better than he does know himself.
And how are you going to take care of Sheku in the future; what is your plan?
Well, in the future I plan on having to take him to places that he likes, to food venues, to recreation activities and buy him things that he need and reconnecting with him in a more closer environment.
And why does Sheku need you to stay in Australia?
Well, Sheku need me to stay in Australia because me and him we have been together for a while now and I’ve come to know him better than other people and we get along very well. We know each other and I can come to understand him better than other people. And when I’m not around he’s depressed and when he’s not around I’m depressed myself. So, for instance, when I got kicked out of the family home, when I came back he was overjoyed and he kept telling me how much he missed me and I missed him a lot so the relationship me and Sheku have is a pretty closeknit relationship. You know, yes, too he has his other but he has a different relationship with me. I make him feel comfortable and relaxed and being in a safe position for him where he can be himself around me and around people and I can be, like, the older brother because some people will tend to want to bully him or take advantage of him of that situation.
The Applicant gave the following oral evidence in response to questions from the Tribunal:[123]
Mr Kanneh, could you describe when you were looking after your nephew, Sheku, what’s a normal day in Sheku’s life as you would have experienced it?
A normal day start with him waking up, you know, brushing his teeth, you know, having breakfast. And then from there we would, you know, watch - we’ll watch a bit TV then we’ll play a bit of PS - PlayStation 3. Then from there, you know, depending how he feel or what he’s up to, you know, what he want, we’ll go to the park, you know, go to the park, have a few swing, I’d push him on the swing, you know, have a walk around. Later on go for maybe, you know, a snack, whatever he would like. Because he can’t eat all snacks so there’s only certain snacks he can eat. So we would look for whatever he could eat the time, you know. And then from there, we’ll come home and relax, you know, and watch some more TV and play some more game. And then we’ll play - then after that, we’ll go back - in the backyard and play in the trampoline, have a few jump around the trampoline, then push him on his own bike, you know, while he’s on his bike I give him a push and he, you know - then he - start to help him how to ride his bike, you know. Because we didn’t have training wheels on there so I’ll just hold the bike steady for him. And, yeah. And, yeah, yeah, then from then - that would be consist of a normal day then we’ll go back inside and we have something to eat, our traditional food and that, and we’ll watch a bit more TV.
Does he take himself to bed?
Yes, he takes himself to bed.
The Applicant’s representative’s written submissions[124]
[123] Transcript, page 45, line 41 -page 46, line 16.
[124]Exhibits 2 and 4.
Mr Dukuly, an Australian citizen, was born with microcephaly and cerebral palsy. He is unable to speak, has significant difficulties communicating and is entirely dependent on other adults to provide for his needs.
Mr Dukuly’s disabilities are permanent, so it is likely he will continue to require this very high level of care, and be dependent on other adults, for his entire life.
The Applicant has been significantly involved in the care of his nephew in the past and would continue to be significantly involved going forward if he re-entered the Australian community.
In particular, the Applicant would be able to assist in his nephew’s care because he is uniquely able to communicate with Mr Dukuly due to their long-standing close relationship. Moreover, he would be able to provide Mr Dukuly with a level of care and social interaction, as a brotherly figure and best friend, which is unique to their relationship. This need for connection, which is essential to Mr Dukuly living a full and happy life, cannot be adequately met by support workers.
The Applicant submits that Mr Dukuly would be severely and detrimentally impacted if they were to be permanently separated. The Applicant submits that it would be extremely difficult to remotely maintain his relationship with Mr Dukuly and fulfil his nephew’s need for social interaction remotely. This is due primarily to Mr Dukuly’s difficulties with verbal communication and inability to speak.
The Respondent’s written submissions
Mr Dukuly’s care needs appear to have been met while the Applicant was in prison.[125]
[125] Exhibit 3, page 20, [68].
Conclusion: Additional other consideration
The Applicant appears to have a special bond with Mr Dukuly, is a significant male role model for Mr Dukuly and appears better able than any other person to assist Mr Dukuly.
Mr Dukuly appears to me to be a vulnerable person who is reliant on the Applicant for guidance and support.
Permanent separation from the Applicant is likely to have a detrimental impact on Mr Dukuly’s mental health and the trajectory of his life.
In this regard, the Tribunal finds that contact by telephone or videoconference is likely to be a poor substitute, with the evidence showing that Mr Dukuly’s best interests require the Applicant to be physically present in Mr Dukuly’s life to help guide and look after him. The Tribunal also notes that Matenneh Kanneh appears increasingly unable to cope with the growing demands of caring for and managing a dependent adult son who is becoming older, larger and stronger.
The Tribunal finds that it is in Mr Dukuly’s best interests for the Applicant to remain in Australia. Mr Dukuly’s mental health would be negatively impacted if the Applicant was removed to Liberia. Indeed, the Applicant’s removal is likely to have a significant detrimental impact on Mr Dukuly’s life in a more general sense.
The Tribunal finds that Mr Dukuly’s best interests weigh strongly in favour of revoking the delegate’s decision under review.
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, the Applicant does not pass the character test.
In determining whether there is ‘another reason’ to revoke the cancellation decision, the Tribunal has applied the Direction to this matter’s specific circumstances.
The Tribunal finds as follows:
(a)Primary Consideration 1- protection of the Australian community from criminal or other serious conduct:
(iii)this consideration weighs in favour of affirming the delegate’s decision not to revoke the mandatory cancellation the Applicant’s visa.
(b)Primary Consideration 2- whether the conduct engaged in constituted family violence:
(iv)this consideration weighs moderately, but not determinatively in favour of affirming the delegate’s decision not to revoke the mandatory cancellation the Applicant’s visa.
(c)Primary Consideration 3- the best interests of minor children in Australia:
(v)this consideration provides limited weight in favour of revoking the mandatory cancellation of the Applicant’s visa.
(d)Primary Consideration 4 – Expectations of the Australian Community:
(vi)this consideration weighs moderately but non-determinatively in favour of revoking the mandatory cancellation of the Applicant’s visa.
The Tribunal has also set out above the weight attributable to the other considerations and the additional consideration.
A comprehensive, holistic and integrated view of the primary considerations, the other considerations in the Direction, together with the additional consideration favours on balance revoking the mandatory cancellation of the Applicant’s visa.
Consequently, the Tribunal exercises its discretion to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review and substitutes a decision revoking the original visa cancellation.

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

.............................[SGD]...........................................
Associate
Dated: 17 February 2023

Date of hearing: 13 December 2022

Advocate for the Applicant:
Ms Rachel Tomassen
(Samuta McComber Lawyers)

Solicitors for the Respondent: Mr Chris West
(Sparke Helmore Lawyers)
Annexure A - Exhibit Register

Exhibit Number

Description of Exhibit

Party

Date of Document

Filing Date

1

G Documents

(G1-G11, pages 1-93)

R

Various

19 Oct 2022

1.1

Supplementary G Documents

(1-5, paged 1-173)

R

Various

29 Nov 2022

2

Statement of Facts, Issues and Contentions

(21 pages)

A

11 Nov 2022

11 Nov 2022

3

Statement of Facts, Issues and Contentions

(21 pages)

R

29 Nov 2022

29 Nov 2022

4

Submissions in Reply

(27 pages)

A

7 Dec 2022

7 Dec 2022

5

Applicant’s Tender Bundle

(144 pages)

A

8 Dec 2022

8 Dec 2022

ANNEXURE B- Short form decision

Exhibit Number	Description of Exhibit	Party	Date of Document	Filing Date
1	G Documents (G1-G11, pages 1-93)	R	Various	19 Oct 2022
1.1	Supplementary G Documents (1-5, paged 1-173)	R	Various	29 Nov 2022
2	Statement of Facts, Issues and Contentions (21 pages)	A	11 Nov 2022	11 Nov 2022
3	Statement of Facts, Issues and Contentions (21 pages)	R	29 Nov 2022	29 Nov 2022
4	Submissions in Reply (27 pages)	A	7 Dec 2022	7 Dec 2022
5	Applicant’s Tender Bundle (144 pages)	A	8 Dec 2022	8 Dec 2022

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2022/8260

General Division )
Re: Bramasi Kanneh
Applicant

And: Minister for Immigration, Citizenship and Multicultural Affairs
Respondent
ORDER
TRIBUNAL:              Member D Cosgrave
DATE:   22 December 2022
PLACE:                    Brisbane
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review and substitutes a decision revoking the original visa cancellation.

...............[SGD].................
Member D Cosgrave

[2022] AATA 4976

22 December 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Date of hearing:	13 December 2022
Advocate for the Applicant:	Ms Rachel Tomassen (Samuta McComber Lawyers)
Solicitors for the Respondent:	Mr Chris West (Sparke Helmore Lawyers)

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2022/8260
General Division	)