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

[2024] AATA 910

Kipkosgei and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 910 (22 January 2024)

Division:GENERAL DIVISION

File Number:          2023/8285

Re:Kelvin Kipkosgei

APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member D. Cosgrave

Date of decision:  22 January 2024

Date of written reasons:         1 May 2024

Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 27 October 2023 not to revoke the cancellation of the Applicant’s visa.

.............[SGD]….........

Member D. Cosgrave

Catchwords

MIGRATION – Mandatory visa cancellation – Kenyan citizen – Class TU Subclass 500 Student (Temporary) visa – failure to pass the character test – criminal record – victim kicked and stomped on the head – whether there is another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 99 applied – delegate’s decision not to revoke is affirmed.

Legislation

Acts Interpretation Act 1901 (Cth)

Administrative Appeals Tribunal Act 1975 (Cth)

Family Law Act 1975 (Cth)

Migration Act 1958 (Cth)

Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)

Migration Regulations 1994 (Cth)

Cases

Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
Bushell v Repatriation Commission (1992) 175 CLR 408
Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588
Demir V Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870
Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78
EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173
Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019)
Holloway V Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Matthews v Minister for Home Affairs [2020] FCAFC 146
Minister for 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
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. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)

REASONS FOR DECISION

Member D. Cosgrave

1 May 2024

INTRODUCTION

1. Mr Kipkosgei seeks review of the Respondent’s delegate’s 27 October 2023 decision not to revoke the mandatory cancellation of his Class TU Subclass 500 Student (Temporary) visa (the Visa).[1]

   [1] Exhibit R1: G documents, G3, page 11. 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.

2. The hearing was held by audio visual link in Brisbane on 9 January 2024. Mr Kipkosgei represented himself. The Respondent was represented by Mr West, a legal practitioner with Sparke Helmore Lawyers.

3. On 22 January 2024, the Tribunal met its 84-day statutory obligation[2] by providing a short form decision in which it affirmed the decision under review.[3]  The Tribunal now gives its reasons for its decision.

   [2] Pursuant to s 500(6L) of the Migration Act 1958 (Cth).

   [3] Khalil v Minister for Home Affairs (2019) 271 FCR 326 [41]–⁠[48].

4. Unless the context indicates otherwise, passages quoted in bold font have been emphasised by the Tribunal.

   FACTS

5. Mr Kipkosgei is a 28-year-old[4] Kenyan citizen who first arrived in Australia on 12 April 2019.[5] He has not departed Australia since then.

   [4] Exhibit R1: G2, page 5.

   [5] Exhibit R1: G26, page 129.

6. On 18 June 2021 His Honour Magistrate Grogin of the New South Wales Local Court convicted Mr Kipkosgei of Sexually touching another person without consent - T2, Assault occasioning abh in company of others – T2 and Affray – T1 (both being Index Offences) and sentenced him to 2 years’ imprisonment for the two violent offences and a separate 2 year Community Correction Order for the sexual offence.[6]

   [6] Exhibit R1: G4, page 28.

7. On 8 July 2021, Mr Kipkosgei was advised that his Visa was cancelled under s501(3A) of the Migration Act 1958 (Cth) (the Act)[7] as he did not pass the character test because of his ‘substantial criminal record’.[8]

   [7] Exhibit R1: G3, page 9.

   [8] As defined in ss 501(6)(a) and 501(7)(c) of the Act.

8. Section 501(7)(c) provides that for the purpose of the character test a person has a 'substantial criminal record' if the person has been sentenced to a term of imprisonment of 12 months or more.

9. On 29 October 2021 Mr Kipkosgei successfully appealed his sentence in the Parramatta District Court and was re-sentenced for his two violent offences to an aggregate term of imprisonment of 18 months.[9]

   [9] Exhibit R1: G6, page 35.

10. On 9 August 2021, Mr Kipkosgei requested revocation of his Visa’s cancellation.[10]

    [10] Exhibit R1: G11, page 68.

11. On 27 October 2023, a delegate of the Respondent decided not to revoke the mandatory cancellation of Mr Kipkosgei’s Visa (the delegate’s decision).[11]

    [11] Exhibit R1: G3, page 11.

12. On 6 November 2023, Mr Kipkosgei applied to the Tribunal for review of the delegate’s decision to not revoke the mandatory cancellation of his Visa.[12]

    [12] Exhibit R1: G2, page 4.

    OFFENDING HISTORY

13. Mr Kipkosgei’s offending and court history is tabulated below:

Date	Event	Result
18 June 2021	Sexually touch another person without consent-T2	2 year Community Correction Order.
18 June 2021	Assault occasioning abh in company of other(s)-T2 (Index Offending)	2 years’ imprisonment.
18 June 2021	Affray-T1 (Index Offending)	2 years’ imprisonment.
29 October 2021	Appeal against severity of sentence - Assault occasioning abh in company of other(s)-T2	Sentence reduced to 18 months’ imprisonment.
29 October 2021	Appeal against severity of sentence - Affray-T1	Sentence reduced to 18 months’ imprisonment.

1. On 17 March 2021 the New South Wales police arrested Mr Kipkosgei for the offence of Sexually touch another person without consent-T2.[13] At the same the police noted that he had breached his bail conditions that were imposed after being charged with Affray-T1 and Assault occasioning abh in company of other(s)-T2 on 3 January 2021.[14] The breaches included the consumption of alcohol.

   [13] Exhibit R3: Tender Bundle 1, pages 10-11.

   [14] Exhibit R3: Tender Bundle 1, pages 10-11.

2. The incident leading to the charges of Assault occasioning abh in company of other(s)-T2 and Affray-T1 occurred on 2 January 2021. Mr Kipkosgei plead guilty to these offences. He and another individual, his co-offender, confronted their victim who they believed had stolen Mr Kipkosgei’s mobile telephone. The victim pushed Mr Kipkosgei who fell. Mr Kipkosgei and his co-offender then chased the victim, in Mr Kipkosgei’s case while carrying a pair of scissors. Mr Kipkosgei kicked at the victim’s legs, causing the victim to fall to the ground. Mr Kipkosgei then got on top of the victim, pinned the latter’s arms and appeared to be trying to search him. The co-offender then kicked or jumped on the victim with his heel striking the victim’s head while Mr Kipkosgei immobilised the victim. The victim was likely rendered unconscious at this point. Mr Kipkosgei struck the victim with his right hand to the left shoulder blade, and then motioned with his right hand multiple jab motions to the victim's back. Mr Kipkosgei then got up off the road, walked away and paused, then returned to kick the victim with his foot in the lower back several times while the victim was unconscious. Mr Kipkosgei then walked away to the pavement to join his co-offender, leaving the unconscious victim again lying on the road.[15]

   [15] Exhibit R1: G6 at pages 40-41.

3. Her Honour Judge Smith SC of the New South Wales District, when delivering her decision in relation to Mr Kipkosgei’s appeal against the severity of his sentence, reviewed security CCTV footage of the incident and observed about its aftermath:

   ‘You can see in the footage, the appellant and his co-offender walking up the pavement, talking to each other, and you can even see them high-fiving one another as they walk off, obviously quite proud of what has just occurred Three minutes after the appellant has left the victim, he and the co-offender then return - and this is where the facts are completely wrong, because the co-offender does come back with the appellant - and, I note, that in this time, nine cars have passed by where the victim is lying on the road, and the victim is unconscious for a total of two minutes and 20 seconds. He begins to regain consciousness just prior to the appellant and his co-offender returning. When they return, they walk up to the victim. The co-offender appears to walk around and kick the ground near the victim's head, and then he appears to pick up what looks like, maybe, a mobile phone, off the road, and bends over and shouts at the victim. Whilst, at least by this point, the appellant pulls the victim up from the ground, slowly, with the victim falling back down twice on the way. They eventually manage to stand him up, and the appellant can be seen with his left arm around the victim's shoulder, walking away. After a few steps, with the victim is in such a state that he is clearly stumbling, the victim falls to the left off the roadway, bringing the offender partially on top of him, as his arm is still around him. Then the appellant drags the victim back to his feet, and drags him to the footpath, where they stumble away with the appellant's arm back around the victim's shoulder.’[16]

   [16] Exhibit R1: G6 at pages 42-43.

4. Judge Smith observed that:

   ‘So, what happened is, police tracked down the appellant. He was placed under arrest, and it was clear that he was, as described by police, severely intoxicated. The police could see that, and as a result they said they were unable to ascertain from him what happened. The appellant says that he was intoxicated from alcohol alone, and it appears that he is saying that he accepts that he was heavily intoxicated, if not severely intoxicated, from alcohol, and I will return to that a little bit later.’[17]

   and

   ‘Overall, you only have to listen to the recounting of those facts to realise this is a serious example of an affray offence. The violence was ferocious and sustained in nature. It included stomping. It included kicking. There were plenty of opportunities for the appellant to desist from the attack, but he does not do so, and that is what jumped out at me when watching the footage. Instead, when faced with an unconscious victim, who is clearly completely helpless, he stomped on his head, and, again, as I said going through the facts, the appellant even commenced to walk away, but decided to again return, and then on the unconscious victim, do the four kicks. As I said, it is also clear from the footage how proud this appellant and co-offender were about the violence that they had just inflicted.’[18]

   and

   ‘In terms of trying to gain some understanding of how this offending occurred, the Sentencing Assessment Report refers to the appellant as, I must say very frankly, describing himself as someone who loses his temper quickly, and is often violent. In terms of his rehabilitation, this is clearly an issue that needs to be addressed. The appellant needs to be able to control his temper. He needs to learn mechanisms that he can call on in order to do so. This is an area that he is going to need assistance with. It is also clear that the appellant was heavily intoxicated at the time of the offending. The appellant nominates in his letter to the Court, that alcohol was behind the offending, to his mind, although he does not try to excuse it, and he described it as an addiction. Again, this is an area that needs to be addressed. Obviously, the appellant and alcohol, in large quantities, do not mix well because, if the current violence is any indication of what can occur when the appellant is under the influence of alcohol, he needs to take a hard look at himself, and decide whether he is someone who should even be consuming alcohol. He maintains that the drugs had nothing to do with his offending. I think, more generally, there is an issue with drugs as well if there is cannabis being used every two days and this also needs to be addressed. In terms of the alcohol, it does not mitigate the offence. It does not make it less serious. It does not mean that this appellant is less blameworthy because he was intoxicated, but what it does do, is provide some insight into how rehabilitation can be achieved for this appellant, and the lessons that just have to be learnt from conduct of this kind, and the need to ensure that it is not repeated. The appellant has expressed remorse and disgust in relation to his offending in his letter to the Court dated 20 April 2021. However, the Sentencing Assessment Report presents a slightly different picture, because it nominates the appellant as having taken minimal responsibility for his offending behaviour, and attributing blame to the victim. There is even reference to lack of sleep, but in any event, he attributes blame to the victim. When talking to the Community Corrections officer, he was also unable to provide an alternative course of action for his offending behaviour, justifying his behaviour as retribution for the theft of his mobile phone. The message needs to be sent, that those alternatives, in terms of resolving conflict, need to be at the forefront of this appellant's mind, and in his letter to the Court, he does talk about now seeing, that violence is not the solution, which is a bit inconsistent with what is in the Sentencing Assessment Report. I will give him the benefit of actually realising now, that you cannot resort to violence when you are faced with any issue of conflict, even if you believe that someone has taken your property, that does not give you the right to inflict violence. The other avenue that is readily available is, you report it to the police, and it becomes an issue that they can pursue on your behalf, lawfully, and you tell the person that that is what you are going to do. It is a simple solution, and it is one that should have been used on this evening. Assessment Report, that he needs to engage with interventions to address his drug use. He has also completed a number of programs whilst in custody, and I have those certificates before me. He has endeavoured to do what programs he can that address the issues of violence, and he has even done one in terms of a domestic violence program, which did cover things such as anger, and social skills practice, and managing emotions, which are all areas that the appellant is going to need to work on, in order to ensure his rehabilitation. I take into account that he has endeavoured to undertake such courses, which I know are more limited during this time because of COVID, and I take that as a positive sign.’[19]

   [17] Exhibit R1: G6 at page 44.

   [18] Exhibit R1: G6 at page 46.

   [19] Exhibit R1: G6, pages 48-50.

5. The incident leading to the charge of Sexually touch another person without consent-T2 occurred on 16 March 2021. Mr Kipkosgei was walking behind a woman on the stairs leading to Lidcombe Railway Station when he was alleged to have said, ‘Hey darling, hey darling, are you single? You are gorgeous’. The woman demurred and Mr Kipkosgei then touched her with a soft slapping motion on her buttocks. She told him not to do it. He plead guilty to that offence.[20]

   [20] Exhibit R1: G5.

   LEGISLATIVE FRAMEWORK

6. Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) and Section 500 of the Act are the sources of the Tribunal’s jurisdiction in this matter.

7. Section 501(3A) of the Act, read with section 501(6), obliges the Respondent Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test because they are serving a full-time sentence of imprisonment. The character test is defined in s 501(6) of the Act.

8. Under s 501CA(4), the Respondent Minister may revoke the original decision if:

   (a)representations have been made by the person in accordance with the invitation;[21] and

   (b)the Minister is satisfied that:

   (i)the person passes the character test;[22] or

   (ii)there is another reason why the original decision should be revoked.[23]

   [21] Pursuant to s 501CA(4)(a) of the Act.

   [22] Pursuant to s 501CA(4)(b)(i) of the Act.

   [23] Pursuant to s 501CA(4)(b)(ii) of the Act.

   MATTERS FOR CONSIDERATION

9. Mr Kipkosgei’s Visa was cancelled on the basis that he had failed the character test once the delegate considered and applied Section 501(6)(d)(ii) to the facts of this matter.

10. The Tribunal’s first task is to consider whether Mr Kipkosgei fails to pass the character test.

11. If Mr Kipkosgei fails the character test, then the Tribunal’s second task is to consider the issue of whether, under section 501CA(4)(b)(ii) of the Act, it is satisfied of there being another reason to revoke the cancellation decision.[24] The Tribunal ‘stands in the shoes of the original decision-maker’ but with regard for the situation as at the time of its consideration.[25]

    [24] 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).

    [25] 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).

1. The Tribunal finds that Mr Kipkosgei fails the character test as a matter of law.[26] As summarised above under his Offending History, he received, after appealing the severity of his sentence, a sentence of imprisonment of 12 months or more for his Index Offences even after appealing the severity of the original sentences and thus has a ‘substantial criminal record’ which compels this Tribunal to find that he is a person who does not pass the character test.[27] [28]

   [26] Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 at [63].

   [27] Section 501(7)(c) of the Act.

   [28] Section 501(6)(a) of the Act.

   IS THERE ANOTHER REASON WHY MR KIPKOSGEI’S VISA CANCELLATION SHOULD BE REVOKED?

2. The Full Court of the Federal Court in Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172 at [27], approving Justice Colvin’s reasoning in Viane,[29] identified the following principles as being relevant to the statutory task conferred by Section 501CA(4):

   ‘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.

   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.

   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.

   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.

   Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.

   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….’

   [29] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).

3. When the Tribunal assesses and considers the factors weighing for and against setting aside a visa cancellation, section 499(2A) of the Act requires it to comply with Direction 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).[30]

   [30] See Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at para [38].

   The Direction

4. The Direction contains mandatory and aspirational considerations guiding the exercise of statutory power under the Act.[31]

   [31] 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].

5. The following principles in paragraph 5.2 of the Direction inform the decision-making process:[32]

   Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

   Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

   The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.

   Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non­citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

   With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

   Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non­ citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

   [32] Paragraph 5.2 of the Direction.

6. Paragraph 6 of the Direction provides that, informed by the above principles, a

   
   

   decision-maker must consider the Primary and Other considerations described in Paragraphs 8 and 9 of the Direction where relevant to their decision making.

7. Paragraph 7(1) of the Direction provides that appropriate weight should be given to ‘information and evidence from independent and authoritative sources.’

8. 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.’

9. Paragraph 8 of the Direction provides the following primary considerations:

   ·protection of the Australian community from criminal or other serious conduct;

   ·whether the conduct engaged in constituted family violence;

   ·the strength, nature and duration of ties to Australia;

   ·the best interests of minor children in Australia; and

   ·expectations of the Australian community.

10. Paragraph 9 of the Direction identifies the following non-exhaustive list of other considerations to be considered where relevant:

    ·legal consequences of the decision;

    ·extent of impediments if removed;

    ·impact on victims; and

    ·impact on Australian business interests.

11. The Tribunal is not precluded from finding that a consideration specified under Paragraph 9 of the Direction has equivalent or greater weight than a consideration specified under Paragraph 8 of the Direction. This depends on each matter’s specific circumstances.[33] The weighing process is substantively left to the individual decision maker exercising the relevant power under section 501 of the Act.[34]

    [33] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, at [23] and [28] (Colvin J); FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19.

    [34] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, at [57].

    EVIDENCE

12. The following is an overview of the evidence tendered or adduced before the Tribunal. The evidence referred to below includes documentary evidence collated for the purposes of section 501G of the Act, documents tendered by the Respondent and Mr Kipkosgei and testimony given by Mr Kipkosgei, Ms Chepkorir, Mr Emmanuel Kipkosgei and Mr Ngeno.

    Documentary evidence

13. The Tribunal received written evidence during the hearing, which is attached to this Decision and marked ‘Annexure A’. The following documents were tendered into evidence and considered by the Tribunal:

    ·G Documents.[35]

    ·Mr Kipkosgei’s statement of facts, issues and contentions (SFIC).[36]

    ·Mr Kipkosgei’s International Health and Medical Services (IHMS) records and Individual Management Plan.[37]

    ·Mr Kipkosgei’s undated rehabilitation submissions.[38]

    ·Letters of support for Mr Kipkosgei from Mr Ngeno, Ms Chepkorir, Mr Cochrane and Mr Nawej.[39]

    ·A set of rehabilitation course completion certificates.[40]

    ·Mr Kipkosgei’s African and Kenyan LGBT rights submission.[41]

    ·A photograph of Mr Kipkosgei making coffee.[42]

    ·The Respondent’s SFIC.[43]

    ·The Respondent’s Tender Bundle.[44]

    [35] Exhibit R1: G-Documents.

    [36] Exhibits A1 and A2: Applicant’s SFICs.

    [37] Exhibits A3 and A4.

    [38] Exhibit A5.

    [39] Exhibits A6, A7, A8, A9 and A10.

    [40] Exhibit A11.

    [41] Exhibit A12.

    [42] Exhibit A13.

    [43] Exhibit R2.

    [44] Exhibit R3.

    THE TRIBUNAL’S ASSESSMENT OF MR KIPKOSGEI AS A WITNESS

14. The Tribunal observed Mr Kipkosgei as he gave evidence. Subject to the exception noted below, he presented himself as an honest witness, albeit one deeply concerned with his plight.

15. The exception involves the disparities between his account and that of his housemates in relation to his June 2020 involuntary psychiatric admission.

16. The Bankstown-Lidcombe Hospital Discharge Summary states:[45]

    ‘Kelvin’s housemates reported increasingly bizarre, paranoid and disinhibited behaviour, including finding Kelvin entering other housemates’ bedrooms as they slept and standing for long periods staring, and asking multiple females for sex, including entering his housemates’ room and asking his girlfriend for sex. This instance resulted in a physical alteration, and his housemates report having had to defend Kelvin from members of the public after he had propositioned their girlfriends.’

    [45] Exhibit A1: G13, page 91.

17. In cross-examination by Mr West, Mr Kipkosgei gave the following testimony:[46]

    [46] Transcript, page 32, line 42 – page 33, line 46.

    Mr West: And this is the report that the hospital produced when you were admitted in June 2020?

    Mr Kipkosgei: Yes.

    Mr West: And what your roommates reported was that you were entering other housemates’ bedrooms while they slept and standing there staring at them. So you deny that that was happening?

    Mr Kipkosgei: I fully deny that one. And I do accept that I had a poor insight at that time. I do accept that. And also, Mr West, I will fully tell you that, the housemates I used to live with, none of them every lived with a girlfriend, rather than just coming – some girls coming there, here and there. But we only lived there as boys, Mr West. That’s why I’m telling you that this statement to me, it wasn’t accurate at all, and I wasn’t informed. Actually, I was surprised to just see the statement like this saying that I entered people’s rooms. Yes.

    Mr West: So you say that you didn’t ask any of your housemates girlfriends’ for sex?

    Mr Kipkosgei: I didn’t ask anyone. I didn’t. I accept that I had a poor insight at that time. I didn’t know what was going on. I was having mental issues, I accept that. I was having – like, everything was slow for me, everything I was doing was slow, everything wasn’t working. And also, at that time, it was the COVID period, and I was admitted to hospital. And at that time, a lot of people were having – there was this COVID period that there was high number of people, so I was also in confusion, as I must say. But this statement, no.

    Mr West: If you just go to the bottom of the page, Mr Kipkosgei, under, ‘Discharge Plan’?

    Mr Kipkosgei: Yes.

    Mr West: The third dot point says, ‘Kelvin’s housemates have agreed for him to live in the house on a temporary basis while he finds more long‑term accommodation.’ So if their plan was to make all this up to kick you out, it doesn’t seem very consistent that they’d let you, then, live with them?

    Mr Kipkosgei: I’ll explain that one. I’ll explain that one, Mr West. So ‑ ‑ ‑

    Mr West: Yes, so Mr Kipkosgei?

    Mr Kipkosgei: Yes.

    Mr West: Mr Kipkosgei, you’ll have a chance to explain that. The question that I’m asking you is just that ‑ ‑ ‑?

    Mr Kipkosgei: Okay.

    Mr West: It’s not very consistent with making something up to kick you out of the house ‑ ‑ ‑?

    Mr Kipkosgei: Yes.

    Mr West: For them to then let you live with them again, is it?

    Mr Kipkosgei: Yes. Yes. Okay. At that time, they – they said – they agreed to give me an accommodation, but the Kenyan member, Mr Abdallah Ndwala, is the person I did – even actually, after I got released from hospital, I didn’t stay with them for more than three days. Mr Ndwala came and took me and got me another accommodation. So it was the plan, it was agreed, that I would live with them, that was agreed, because I had nowhere to go at that time. But after Mr Abdallah Ndwala came, he took me out of the house two, three days after my – I was – I came from the hospital. So it was the plan for me to stay in the house with the housemates. They agreed to take me there, but Mr Ndwala took me away early possible, as soon.

    PRIMARY CONSIDERATIONS

    Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct

18. When considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind that the Australian Government is committed to protecting the Australian community from harm because of criminal activity or other serious conduct by non-citizens.

19. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens with the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.

20. In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:

    (a)the nature and seriousness of the non-citizen’s conduct to date; and

    (b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

    Tribunal’s consideration: The nature and seriousness of Mr Kipkosgei’s conduct

    Paragraph 8.1.1(1)

21. This paragraph states that, in considering the nature and seriousness of the non-citizen’s ‘criminal offending or other conduct to date’, decision-makers ‘must have regard to the following’:

    (a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

    (i)     violent and/or sexual crimes;

    (ii)    crimes of a violent nature against women or children, regardless of the sentence imposed;

    (iii)   acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

    (b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

    (i)     causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

    (ii)    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

    (iii)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));

    (iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197 A of the Act, which prohibits escape from immigration detention;

    (c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;

    (d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;

    (e)the cumulative effect of repeated offending;

    (f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

    (g)whether the non-citizen has reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).

    (h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.

22. The Tribunal has considered both parties’ respective submissions about Paragraph 8.1.1 of the Direction.

23. In summary, Mr West submitted the following:

    ·On 18 June 2021, His Honour Magistrate Grogin convicted and sentenced Mr Kipkosgei. Magistrate Grogin found his offending, in terms of its objective seriousness, to be towards the highest level of objective seriousness.[47]

    ·On appeal, Her Honour Judge Smith also viewed the offending to be ‘...a very serious example of violence... ’.[48]

    ·Mr Kipkosgei’s further offence of Sexually touch another person without consent-T2 should be considered very serious because it is a sexual offence which the Australian Government and Australian community views as very serious (paragraph 8.1.l(a)(i) of Direction 99). While Magistrate Grogin found the objective seriousness of this offending to lie in the low end of objective seriousness and did not classify Mr Kipkosgei as a sexual offender the offence must still be viewed in the inherently serious category of the offending.[49] An aggravating factor is that the offence occurred while Mr Kipkosgei was on conditional bail for his violent offending.[50]

    ·The court sentenced Mr Kipkosgei to a term of imprisonment for his offending. Imprisonment is the last resort in the sentencing hierarchy.[51] Where a Court has sentenced an offender to a term of custodial imprisonment this should be viewed as a reflection of the objective seriousness of the offences involved.

    [47] Exhibit R1: G5, page 31.

    [48] Exhibit R1: G6, page 46.

    [49] Dayananda v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1050 at [38] – [39].

    [50] Exhibit R1: G9, page 61.

    [51] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22].

    Paragraphs 8.1.1(1)(a)(i), 8.1.1(1)(a)(ii) and 8.1.1(1)(a)(iii)

24. Mr Kipkosgei’s convictions for Assault occasioning abh in company of other(s)-T2, Affray-T1 and Sexually touch another person without consent-T2 both enliven sub-paragraph (a)(i). His conviction for Sexually touch another person without consent-T2 enlivens sub-paragraph (a)(ii) because his victim was a woman.

25. The Tribunal considers that Mr Kipkosgei’s convictions weigh in favour of a finding that his offending is very serious.

    Paragraphs 8.1.1(1)(b)(i),(ii),(iii) and (iv)

1. These paragraphs are not relevant. The Tribunal did not see any evidence that Mr Kipkosgei has committed any offences described in these paragraphs.

   Paragraph 8.1.1(1)(c)

2. In applying this paragraph, the Tribunal is precluded from considering sentences imposed on Mr Kipkosgei for:

   (i)any violent offending that he may have committed against women or children;

   (ii)acts of family violence; and

   (iii)any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.

3. After appealing the severity of his sentences, Mr Kipkosgei was sentenced to 18 months’ imprisonment for each of his offences of Assault occasioning abh in company of other(s)-T2 and Affray-T1.

4. The Tribunal considers that this paragraph is enlivened and that it carries weight in favour of affirming the delegate’s decision.

   Paragraph 8.1.1(1)(d)

5. This paragraph addresses two specific aspects of a non-citizen's offending: its frequency and/or whether there is any trend of increasing seriousness.

   Frequency

6. Mr Kipkosgei’s criminal history encompasses a period of approximately 10 weeks from 3 January 2021 to 16 March 2021. [52] In this period he committed the offences of Assault occasioning abh in company of other(s)-T2, Affray-T1 and Sexually touch another person without consent-T2.

   [52] Exhibit R1: G9, page 61.

7. Acknowledging the limited period involved, Mr Kipkosgei’s offending, when considered in conjunction with his bail breaches, evidences a high frequency of offending, albeit in an abbreviated period.

8. This carries some slight weight in favour of affirming the delegate’s decision.

   Trend of increasing seriousness

9. The Tribunal does not consider that there is a trend of increasing seriousness in Mr Kipkosgei’s offending when the latter is bifurcated between his sexual and non-sexual (and violent) offending. The non-sexual offending occurred on 2 January 2021 while the sexual offending occurred on 16 March 2021. This paragraph carries a neutral weight.

   Paragraph 8.1.1(1)(e)

10. This paragraph addresses the cumulative effect(s) of Mr Kipkosgei’s repeated offending.

11. Mr Kipkosgei’s outburst of criminal offending, while short-lived, has likely inflicted significant and unsought costs on both the victim of his violence and the victim of his sexual offence. These costs involve a cumulative negative financial, emotional, psychological and social impacts for both victims.

12. This paragraph carries weight in favour of affirming the delegate’s decision.

    Paragraphs 8.1.1(1)(f) and (h)

13. There is no evidence or testimony before the Tribunal in this matter that enlivens these paragraphs.

    Paragraphs 8.1.1(1)(g)

14. Mr Kipkosgei acknowledged in cross-examination that his student visa grant included a statement to the effect that offending in Australia may affect his visa status.[53]

    [53] Transcript, page 34, lines 18 – 29.

15. This carries some weight in favour of affirming the delegate’s decision.

    Tribunal’s finding: The nature and seriousness of Mr Kipkosgei’s conduct.

16. The Tribunal has sought above to apply and consider each of the relevant sub-paragraphs appearing in paragraph 8.1.1(1) of the Direction.

17. With reference to the relevant and applicable paragraphs referred above, the Tribunal finds that the nature of the totality of Mr Kipkosgei’s criminal offending and other conduct, encompassing both violence and a sexual crime against a woman, 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.

18. This aspect of the Direction requires the Tribunal to assess the risk that Mr Kipkosgei poses to the Australian community if he reoffends, taking into consideration the nature of any harm and its probability.

    Paragraph 8.1.2(1)

19. This paragraph 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.

    Paragraph 8.1.2(2) 

20. This paragraph provides that, in considering the risk to the Australian community, a decision-maker must have regard to the 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)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.

21. In assessing the risk to the Australian community, the Tribunal has first considered the evidence, the testimony and then Mr Kipkosgei’s and Mr West’s respective submissions in relation to paragraph 8.1.2.

22. Summarising Mr Kipkosgei’s submissions, evidence and testimony on this issue:

    ·Mr Kipkosgei has provided several statements as well as his testimony regarding his rehabilitation and remorse, including a letter to the victim of his assault and affray offending.[54]

    [54] Exhibit R1: G11, page 73, G12, page 75, G14, G15, G16 and G17. Exhibit A5.

    ·His personal circumstances form includes the following statements:

    At the time of my offends (sic) I was suffering from drug psychosis which led me to the offence. Since this time I have ceased all drug use and have no had (sic) any further charges. At time of the offence I regretted the action and immediately assisted him the help that he needed as well I was instantly remorseful of what I had did and with me is the apology letter attached.[55]

    [55] Exhibit R1: G12, page 86.

    and

    I believe that once I have completed the following courses and the much I have done in gaol, it has really helped me reflect on my past and my future and it has curved (sic) me to become the good person I would like to be. I also have been able to be of good conduct towards the officers in all gaols I have been and I have able to change and had a positive lifestyle. [56]

    ·Elsewhere he states:[57]

    My case was one of the bad decisions that happened having been have been contributed by alcohol and drugs that made me getting involved by touching one with consent and I really regret the actions that I took and that’s not me in nature but having alcohol contributing as a major factor.

    This is the only criminal offense that I have ever had. Prior to this offense I was very much so a person deemed to be of good and sound character in accordance to the Australian Government's Character Test. Since the offence 1 have not committed any further infractions that would accumulate my record. My LSIR score whilst in custody of Corrections was Low-range. All the above could be reasonably considered and find that I am extremely unlikely to re-offend. On this note I wish to add that I offer my assurance that I will not be coming into the cross hairs of the law ever again. This was not an ongoing criminal enterprise or activity but rather an isolated one-off occurrence that was factored by my youth and excessive alcohol consumption.

    I have attended substance abuse treatment classes and absorbed the lessons that were on offer in this education course. In doing so, and in combination with the time served in custody, I have truly come to understand the variables that led to the excessive alcohol consumption at that time. This is key as it served by providing me the ability through understanding to change my behaviours favorably and not re-visit this in my present and future life. Given the opportunity to go back into the Australian Community, I will prove this to you through action, in the same way that I proves this during my time in custody.

    ·He expresses deep remorse and regret for his offences, states that he is ashamed, offers an apology and acknowledges his victims.[58]

    ·He has, while in prison and detention, undertaken and completed courses in Anger Management, Life Choices, the Remand Domestic Violence program, drug and alcohol recovery, SMART Recovery, conflict resolution, psychology of criminal behaviour and criminology, motivation and sexual harassment.[59]

    [56] Ibid.

    [57] Exhibit R1: G16, page 103-104.

    [58] Exhibit R1: G17, pages 108-109.

    [59] Exhibit A11.

23. The Respondent contended that:

    ·This is a case where the risk of harm is so serious that any risk of reoffending is unacceptable (paragraph 8.1.2(1) of the Direction). If Mr Kipkosgei were to reoffend by committing violent offences, the nature of the harm that may result includes extreme physical harm. The specific conduct of the violent offending has the potential to inflict extreme and permanent injury as it involved repeated blows to an unconscious victim’s head. Mr Kipkosgei’s violent and sexual offending may also have ongoing psychological consequences for the victims and others. It will also have broader financial and other consequences to the justice and health systems.

    ·It is the Minister’s position that there is insufficient evidence to support a conclusion that Mr Kipkosgei is now rehabilitated. The Tribunal should instead conclude that the risk of further offending by Mr Kipkosgei is unacceptable. In this regard the following matters are relevant:

    oSeveral sentencing and correctional assessments have determined that Mr Kipkosgei has a low to moderate risk of general re-offending, but a high risk of re-offending in the context of his sexual offending.[60]

    oMr Kipkosgei’s risk factors appear to relate to substance abuse (both drugs and alcohol), an apparent mental health condition (drug induced psychosis) and anger issues. There is presently limited information before the Tribunal in respect of these factors and the available evidence is inconsistent. For example, in relation to Mr Kipkosgei’s substance abuse he has variously denied a history of drug use and dependence and also reported that he used cannabis every day or every second day.[61] There is also limited information in relation to his psychosis. However, records indicate that he was discharged from the Bankstown-Lidcombe Mental Health Hospital in June 2020 and was subject to a Community Treatment Order until December 2020 which required him to take anti-psychotic medication. Mr Kipkosgei does not appear to have complied with that order and subsequently committed his violent offences.[62] It is the Respondent’s position that the records consistently demonstrate Mr Kipkosgei’s poor insight into the role drugs, particularly cannabis, has played in his offending and on his mental health.[63] He denied the need for any intervention in his drug use.[64] It is apparent that Mr Kipkosgei suffers adverse effects of ongoing usage of cannabis by virtue of his psychosis.

    oMagistrate Grogin acknowledged that Mr Kipkosgei has proactively undertaken and completed several courses for his rehabilitation.[65] While Mr Kipkosgei has been in a correctional facility and immigration detention, he has engaged in several rehabilitation courses.[66]

    oMr Kipkosgei has discussed a limited intention to engage with rehabilitative services outside of detention, however, he has not provided tangible plans for his release into the un-supervised environment of community. Overall, his rehabilitation remains untested in the community such that the Tribunal cannot be satisfied that he is now rehabilitated.

    oThe sentencing remarks also outlined that he has an evasive attitude towards remorse and responsibility for his violent and sexual actions.[67]

    oMr Kipkosgei has now provided several statements throughout the process of his Visa revocation outlining his remorse and suggesting that he takes responsibility for his actions.[68] Despite this purported remorse, Mr Kipkosgei has continued to attempt to explain his offending and blame it on the victim having stolen his mobile phone.

    oThe prospect of his Visa being cancelled did not stop Mr Kipkosgei from offending. At the time of being granted his Visa, the applicant was made aware that he must obey the law, not engage in criminal activity and his Visa could be cancelled. His Visa grant letter specifically said that:[69]

    Entering or remaining in Australia is a privilege. You must obey the law and not engage in criminal activity. Your visa may be cancelled for a number of reasons, including if you have a substantial criminal record or behave in a way that is a risk to somebody in the Australian community.

    Tribunal’s Consideration: The nature of the harm to individuals or the Australian community were Mr Kipkosgei to engage in further criminal or other serious conduct.

    [60] Exhibit R1: G5, page 32 and Exhibit R3: Tender Bundle 1, page 41.

    [61] Exhibit R1: G6, page 12; G13 page 94; G14 page 97 and G5, page 31; Exhibit R3: Tender Bundle 4, page 60.

    [62] Exhibit R1: G6, page 48.

    [63] Ibid.

    [64] Exhibit R3: Tender Bundle 1, page 41.

    [65] Exhibit R1: G5, page 31.

    [66] Exhibit R1: G19-G22.

    [67] Exhibit R3: Tender Bundle 1, page 40.

    [68] Exhibit R1: G15-G18.

    [69] Exhibit R3: Tender Bundle 4, page 143.

24. Mr Kipkosgei committed the offences of Assault occasioning abh in company of other(s)-T2, Affray-T1 and Sexually touch another person without consent-T2.

25. Her Honour Judge Smith’s sentencing appeal comments are pertinent here:[70]

    ‘It is at this point I want to say, how much more serious the injuries could have been upon the victim, because the Court is well aware, based on other cases that come before the Court, that if you are going to stomp on somebody's head, as occurred on two occasions here, the injuries sustained can be far more serious than they were here. Fortuitously, that did not occur. The only thing that can be said in the appellant's favour is that there was no planning or pre-meditation, and it was not to a complete stranger, in terms of a random member of the public that was involved in this incident. But, in saying that, in no way does the appellant's belief that the victim had taken his phone, justify him resorting to the use of violence, let alone violence to this degree.’

    and

    ‘The Court of Criminal Appeal, that is the appeal Court, has recognised the particularly abhorrent nature of head stomping, and the fact that it is used predominantly by young men acting under the influence of drugs, or alcohol, or both, which is exactly what happened here, and there is a decision that talks about this, the decision of AM [2012] NSWCCA 203.[71] Not only is that conduct occurring, it is occurring in a public street, where there are members of the public who are rendered too frightened to even intervene. Not only that, it is a public road where the victim is left unconscious. A public road where, despite the time of night, there is relatively heavy traffic. I am sure it is clear, from what I have said, to this point, that I consider this, overall, to be a very serious example of violence, and I am sure that the appellant can understand why, given those features that I have just outlined.’

    [70] Exhibit R1: G6, pages 45 and 46.

    [71] AM v R [2012] NSWCCA 203.

26. The Tribunal considers that the evidence before it demonstrates that the nature of the harm to both individuals and the Australian community, including witnesses, arising from Mr Kipkosgei’s past criminal conduct is both significant and substantial.

27. The nature of the resulting harm arising from a repeat of any of the aspects or categories of Mr Kipkosgei’s criminal conduct would likely encompass a broad range of physical, psychological, financial, and societal consequences.

    Tribunal’s Finding: The nature of the harm to individuals or the Australian community were Mr Kipkosgei to engage in further criminal or other serious conduct.

28. The Tribunal finds that further future criminal conduct of the categories Mr Kipkosgei has previously engaged, especially his violent offending, in would result in serious and substantive physical, psychological and financial harm to the Australian community.

    Tribunal’s Consideration: the likelihood of the non-citizen engaging in further criminal or other serious conduct.

29. The Tribunal has holistically considered the totality of the parties’ contentions, oral testimony and documentary evidence addressing the likelihood of Mr Kipkosgei engaging in further criminal or serious conduct.

30. The issues surrounding the consideration of risk under s.501(6)(d) of the Act, from which paragraphs 8.1.2(1) and (2) are drawn, have been extensively considered by the Tribunal and superior courts.[72]

    [72] 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.

31. The Full Court of the Federal Court in Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 (Baker), at 194 stated that the reference to ‘criminal conduct’ is:

    ‘…not concerned with whether the conduct has had some temporal result, such as the incurring of a conviction, but with the light that the conduct throws on the actor’s character. Of course, in the absence of a prosecution and conviction, satisfaction that criminal conduct has occurred will not be attained on slight material.’

    (Emphasis added)

32. The Direction’s clear legislative intention is that the threshold is whether there is ‘a’ risk.[73] The Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) specifically removed the word ‘significant’ from s 501(6)(d) leaving it as ‘a’ risk.[74] 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.’

    [73] See the discussion in GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019) at [48]–[52].

    [74] See the discussion in Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970 at [27].

33. In Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 (Sabharwal), the Full Court of the Federal Court (Perram, Murphy and Lee JJ) stated at [2]:

    ‘… Section 501(6)(d)(i) provides that a person does not pass the character test if
    “in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would ... engage in criminal conduct in Australia”. The section requires an evaluative judgment by the decision-maker, in the present case the Minister personally, as to whether the decision-maker is satisfied that there is such “a risk.” Then, if the decision-maker is so satisfied, the decision-maker has a discretion to refuse to grant a visa to the person.’

34. In Sabharwal the Full Court noted that the Minister said he ‘could not rule out the possibility of further offending by Mr Sabharwal.’[75] The Full Court, citing Justice Moshinsky’s decision in Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588, 608 [62], found that the Minister’s statement was, in substance, a finding that there was a risk of Mr Sabharwal re-offending.

    [75] Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160, [58] (“Sabharwal (FC)”).

1. In Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 (Guo) Chief Justice Brennan, Justices Dawson, Toohey, Gaudron, McHugh and Gummow of the High Court observed as follows (at 574-575): [76]

   ‘The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.’

   (Emphasis added)

   [76] QKVH and the Minister for Home Affairs (“QKVH 2020”) [2020] AATA 4431 (2 November 2020) at [5].

2. Justice Mortimer explored the notion of risk and its nexus to future possibilities in Murphy v Minister for Home Affairs [2018] FCA 1924 (Murphy), [37], where Her Honour noted:[77]

   ‘That is, part of the Tribunal’s task was to decide not only whether the Applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be “tolerated”.’

   [77] Murphy v Minister for Home Affairs [2018] FCA 1924, [37].

3. Consequently, applying the reasoning described in Baker, Sabharwal and Guo to this matter, the Tribunal’s task, as described in Murphy, is to assess whether there is ‘a risk’ or a likelihood of Mr Kipkosgei engaging in further future criminal or serious conduct.

4. In his sentencing remarks, Magistrate Grogin stated:

   ‘A sentence assessment report has been prepared which indicates the living circumstances, the fact that he was a full-time university student and working part-time cash in hand as a gardener. He appeared to take, according to the author of the sentence assessment report, minimal responsibility for his offending behaviour, attributing the blame to his victims and a lack of sleep. I do not know how a person who is laying unconscious on a road can be held accountable for him punching and kicking them. I do not see how a woman walking upstairs to a railway station can be held accountable for him slapping her on the backside.

   He described himself as someone who loses his temper quickly and is often violent, and he denied that he was a sex offender. There is no evidence before the Court that he is a sex offender. He was assessed, according to the level of service industry (as said), as low to medium risk of reoffending, however, that was increased to high because he was assessed in the above average risk category using the Static-999 (as said) which is an instrument designed to assist in the prediction of sexual recidivism. Community Corrections would supervise him as a tier 3 high supervision level.’[78]

   [78] Exhibit R1: G5, page 32.

5. The NSW Corrective Services sentencing assessment report stated:[79]

   [79] Exhibit R3: Tender Bundle 2, pages 40-41.

   ‘Factors related to offending

   History of anti-social behaviour

   • Mr Kipkosgei has no prior criminal history.

   Attitudes

   •  Mr Kipkosgei appeared to take minimal responsibility for his offending behaviour attributing the blame to his victims and a lack of sleep.

   • He was unable to provide an alternate course of action for his offending behaviour, justifying his behaviour as retribution for the theft of his mobile phone.

   Violence and aggression

   • Mr Kipkosgei has no prior violent offences.

   • Although, he described himself as someone who loses his temper quickly and is often violent.

   Sex offending

   • Mr Kipkosgei has no prior sex offences and denied he was a sex offender.

   • He attributed his offending to lack of sleep; however, could not explain how his lack of sleep caused his behaviour. He acknowledged his behaviour was not acceptable.

   • For further information regarding recommended intervention and treatment options, please see the attached Sentencing Assessment Report Psychology Consultation.

   Responsivity

   Insight into impact of offending

   •  Mr Kipkosgei identified himself and his family overseas as those who were impacted by his offending.

   Substance use

   • Mr Kipkosgei disclosed he smoked cannabis every second day and drank four long necks of beer twice a week.

   Mental health

   •  Mr Kipkosgei reported multiple hospitalisations that he attributed to drug induced psychosis; however this information was unable to be verified.

   Willingness and ability to undertake intervention

   • Mr Kipkosgei expressed verbally he was willing to engage with intervention to address his anger, however, did not agree that intervention was required for his illicit drug use or sex offending.

   •  While in custody, Mr Kipkosgei has completed the Remand Domestic Violence Program on 3 May 2021.’

   and

   ‘Risk assessment

   Mr Kipkosgei has been assessed at a Low/ Medium risk of reoffending according to the Level of Service Inventory - Revised (LSI-R).

   Mr Kipkosgei’s overall risk of reoffending has been increased to High because he was assessed in the Above Average risk category using the Stastic-99R, an instrument designed to assist in the prediction of sexual recidivism as outlined in the attached sentencing assessment report psychology consultation.

   Supervision plan

   If the court makes a supervised order, Community Corrections will supervise Mr Kipkosgei at the Tier 3/High supervision level of the Service Delivery Standards. This means that he will be required to have contact with a Community Corrections Officer every week.’

   (Bold in original)

6. The NSW Corrective Services Sentencing Assessment Report Psychology Consultation states that:[80]

   [80] Exhibit R3: Tender Bundle 2, pages 44-45.

   ‘ASSESSMENT OF RISK

   Mr Kipkosgei’s actuarial risk was assessed using the STATIC-99R (please see Assessment/Approvals screen for the completed STATIC-99R). The STATIC-99R is an instrument designed to assist in the prediction of sexual recidivism for men charged with or convicted of a sexual offence. Based on the available information, Mr Kipkosgei's total score on the STATIC-99R places him in the Above Average Risk range relative to other male sexual offenders. The significant risk factors associated with sexual recidivism identified were: Mr Kipkosgei's age, his lack of previous long term live-in relationship; index non-sexual violent offences; and his victim being a stranger and unrelated to him. The rate of sexual recidivism (Phenix, Helmus & Hanson, 2016) for sexual offenders within the STATIC-99R 'routine' normative samples who had the same total score as Mr Kipkosgei is estimated to be 2.70 times as likely to sexually re-offend as compared to the 'typical' sex offender.

   FACTORS INDICATIVE RISK

   The limitation of consultation based on file review only is that dynamic risk factors, which together with static factors contribute to the risk of re-offending, were not assessed. However, from file review potential risk factors identified that may have contributed to the offence and will require further assessment include:

   Impulsivity: Mr Kipkosgei's may potentially have issues with impulsivity as his current sexual offence appears to be spontaneous and unplanned in nature. Similarly his violent offences appear to have been impulsive in nature.

   General risk factors of alcohol and substance abuse which precipitated his violent offences in combination with Mr Kipkosgei attributing his sexual offending to having only 1 hour sleep is also suggestive of poor problem solving and impulse control.

   SUMMARY AND RECOMMENDATION

   Utilising information from the file review, Mr Kipkosgei falls in the Above Average range of risk relative to other male sex offenders. Based off these results Mr Kipkosgei would be eligible for Sex Offender programs which are based in custody and are of a medium intensity (MISOP) as per the Most Appropriate Program Pathway. He will require a period of two years in custody to allow for referral, waitlist time and participation in a treatment program. He would likely also benefit from being referred to other custodial based programs, e.g. EQUIPS (Foundations, aggressions and addictions) and RUSH to address his coping and self-regulation.’

   (Bold in original)

7. A consideration of the risk or likelihood of Mr Kipkosgei engaging in further criminal or serious conduct should encompass the factors that:

   ·facilitate the risk; or,

   ·conversely, hinder or retard the risk.

8. Doing this enables the Tribunal, in making its assessment, to consider Justice Mortimer’s question in Murphy as to ‘whether the risk should be “tolerated”.’

   Factors that facilitate the risk

9. An assessment of the evidence testimony and information before the Tribunal shows that drugs and alcohol are key static risk factors in terms of Mr Kipkosgei offending.

10. Mr Kipkosgei stated in his assessment interview with NSW Corrective Services (NSWCS) that cannabis had been part of his life since he was a teenager.[81] The same report, as quoted above, suggests that he was routinely consuming 6 litres of beer a week at times coincident with his offending. In the court liaison report it is noted that he confirmed a history of smoking cigarettes, marijuana and alcohol consumption.[82]

    [81] Exhibit R3: Tender Bundle 2, page 60.

    [82] Exhibit R3: Tender Bundle 1, page 46.

11. If Mr Kipkosgei used cannabis in Kenya, as suggested in the NSWCS assessment report, it is conceivable that his Kenyan family constituted a risk management factor to minimise the risk of him using or abusing this substance. The Tribunal only makes this point to acknowledge, as is discussed below in primary consideration 3, that his family support in Australia is far less than that in Kenya.

12. The NSWCS Sentencing Assessment Report Psychology Consultation report states that Mr Kipkosgei presents as a high risk of sexual recidivism due to his age, his lack of a previous long-term living relationship his index non sexual violent offences and his sexual offence victim being a stranger and unrelated to him. [83]

    [83] Exhibit R3: Tender Bundle 1, page 44.

13. The High Court’s reasoning in Guo that ‘the extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity’ can be applied here.

14. The Tribunal considers it more likely than not that if he is released back into the general Australian community, Mr Kipkosgei will again consume cannabis and alcohol, reinstating the risk factors that led to his offending and his psychosis. The counterfactual supports this – he has likely been unable to consume the same quantity of alcohol and drugs in prison and detention and there is no evidence of relapse.

15. The Tribunal also notes with concern Judge Smith’s 29 October 2021 order:[84]

    ‘I find special circumstances on the basis of the need for the appellant to have an extended period of supervision to oversee his alcohol and drug rehabilitation and treatment for his anger management issues, and also because of his youth, that it is his first time in custody, and due to his lack of family support in Australia.’

    (Emphasis added)

    [84] Exhibit R3: Tender Bundle 3, page 107.

    Factors that hinder or retard the risk – Rehabilitation, Remorse and Risk Management Factors

16. Mr Kipkosgei appears to have recently developed insights into the impact of his offending on his victims. Prior to this, his insight seemed limited to the impact of his offending and its consequences on himself and his family.[85]

    [85] Exhibit R3: Tender Bundle 1, page 40, see Tender Bundle 1 pages 37-38 for Mr Kipkosgei’s 2021 apology letters.

17. Mr Kipkosgei has undertaken rehabilitation courses whilst in prison and in detention. It appears from NSW Corrective Services documents that although his rehabilitation efforts are commendable, it may have been more advisable to focus on drug and alcohol abuse rehabilitation.

18. Mr Kipkosgei has emphasised his remorse in recent statements. The Tribunal considers that these expressions are genuine.

19. Dynamic risk management factors for Mr Kipkosgei in Australia and in the absence of significant numbers of family connections and relationships appears to involve his involvement with Kenyan community groups such as KISWA, team sport and friends[86]. If he is allowed to re-enter the Australian community and re-engages with these risk management factors then his chances of reoffending are likely to diminish. However his key risk factors of drugs and alcohol are neither fully addressed nor fully managed by these risk management factors to the extent of being removed, as evidenced by his offending history. Rather these risk management factors serve as partial mitigation.

    [86] Exhibit R3: Tender Bundle 2, page 100 – evidence of friends.

20. There was little evidence before the Tribunal beyond the rehabilitation courses to assess the risk management factors in relation to Mr Kipkosgei’s sexual offending.

    Risk Analysis and Consideration

21. The evidence identifies several static and dynamic risk management factors for Mr Kipkosgei. These include a network of friends and family and the practices and insights he has gained from his pursuit of rehabilitation while in immigration detention.

22. Mr Kipkosgei’s rehabilitative efforts have not been tested in the general community.

23. Notwithstanding Mr Kipkosgei’s assertions in his oral testimony and acknowledging its findings about his credibility above, the Tribunal finds no certainty as to whether Mr Kipkosgei would continue with his rehabilitation efforts if allowed to stay in Australia. There is also no suggestion that he would focus on rehabilitation aimed at curtailing his drug and alcohol consumption or address his risk of sexual offending.

24. The Tribunal has considered the evidence above, applying Guo that the extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity.

25. Based on Mr Kipkosgei’s past, risk factors such as drugs, alcohol, anger and the lack of a risk management framework to address his risk of sexual offending increase his risk of engaging in problematic behaviour which manifests as a risk of reoffending. Acknowledging his evident rehabilitation efforts, the Tribunal cannot be satisfied that these are sufficient to compensate, manage or neutralise the risk factors.

    Tribunal’s finding: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

26. Considering all these factors and applying a synthesis approach as set out in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs[87], the Tribunal concludes that there is a risk that Mr Kipkosgei will in the future reoffend, committing either a sexual offence or non-sexual offence in Australia. This conclusion is not based solely on his past criminal and general conduct, but these do serve as an indicator. The conclusion also relies on the current adverse balance of risk factors and risk management factors in Mr Kipkosgei’s life as set out in the evidence before the Tribunal.

    [87] CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138.

27. Consequently, by applying the reasoning in Sabharwal FC[88], Murphy[89] and Guo[90] to this matter, the Tribunal’s task is to make an assessment of whether there is ‘a risk’ or a likelihood of Mr Kipkosgei engaging in further future criminal or serious conduct.

    [88] Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160, [58] (“Sabharwal (FC)”).

    [89] Murphy v Minister for Home Affairs [2018] FCA 1924.

    [90] Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22.

28. The Tribunal finds that the risk to the Australian community should Mr Kipkosgei commit further offences or engage in other serious conduct both exists and is significant and material.

    Conclusion: Primary consideration 1: Protection of the Australian community

29. This consideration weighs very heavily in favour of affirming the delegate’s decision.

    PRIMARY CONSIDERATION 2: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN.

30. Both parties contend that is not a relevant consideration in this matter.[91]

    [91] Exhibit R2, Respondent’s SFIC at [33] and Transcript, page 13, lines 24-26.

    Conclusion: Primary consideration 2: Family Violence committed by the Non-Citizen

31. This consideration has a neutral weight.

    PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA.

32. Paragraph 8.3 of the Direction provides:

    1Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

    2In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.

    3The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.

    4Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:

    (a)the length of time the non-citizen has resided in the Australian community, noting that:

    (i)     considerable weight should be given to the fact that a noncitizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and

    (ii)    more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and

    (iii)   less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the noncitizen began offending soon after arriving in Australia.

33. Taking each sub-paragraph in paragraph 8.3 in turn to categorise the evidence before the Tribunal:

    Paragraph 8.3 (1)

34. From the evidence and testimony before the Tribunal, Mr Kipkosgei's immediate family in Australia consists of his aunt, Ms Chepkorir, and his cousin, Ms Kipchumba.[92]

    [92] Exhibit R1: G12, pages 81-85 and Transcript, page 11, lines 3-11.

35. The Tribunal considers it likely and consequently finds that any decision to remove Mr Kipkosgei to Kenya would have an adverse emotional and psychological impact on his aunt and his cousin.

36. This finding is subject to and qualified by the requirement in paragraph 8.3(1) of the Direction that both Ms Chepkorir and Ms Kipchumba are Australian citizens, Australian permanent residents and/or that they have a right to remain in Australia indefinitely. There is no evidence before the Tribunal in relation to this aspect except for Mr West's submission that none of the witnesses in this matter have an indefinite right to reside in Australia.[93]

    [93] Transcript, page 64, lines 6-15.

1. Summarising Mr Kipkosgei’s contentions and submissions on this consideration:

   ·Mr Kipkosgei initially raised a claim of persecution because of his family’s efforts and expenditure to enable him to come to Australia.[103]

   [103] Exhibit R1: G12, page 90 and G15, page 101.

   ·In his 11 April 2023 statement he contended that his life would be at risk due to his June 2018 attack and an alleged commonality of violent unprovoked attacks in Kenya. He also raised a non-refoulement concern on this basis.[104]

   [104] Exhibit R1: G16, pages 105-106.

   ·Mr Kipkosgei has provided evidence in relation to LGBT+ rights in Kenya and Africa.[105]

   [105] Exhibit A12.

   ·He makes the following contentions in his undated SFIC:[106]

   [106] Exhibit A2, pages 6-8.

   ‘International non-refoulement obligations

   I am deeply apprehensive about the potential harm, including the loss of life or liberty, torture, and cruel treatment, that I may face if compelled to return to my country of origin due to my sexual orientation. In my home country, individuals with non-conforming sexual orientations, such as mine, encounter systemic discrimination, violence, and the looming threat of severe human rights violations. This fear is substantiated by a wealth of reports and evidence from reliable sources, including news reports and information, all of which I have attached for your consideration. Regrettably, there is no safe region within my home country where I could reside without the constant threat of harm due to my sexual orientation. The pervasive discrimination against the LGBTQ+ community is widespread across the entire country, rendering it unsafe for individuals like me to find refuge anywhere within its borders and beyond. The situation is dire, as exemplified by the alarming fact that in Uganda, people with similar sexual orientations face grave danger. It is highly unlikely that the authorities in my home country could provide adequate protection, given the absence of legal and societal structures that afford protection to individuals with non-conforming sexual orientations.

   Apart from the specific harm related to my sexual orientation, returning to my home country could expose me to additional risks, including societal backlash, discrimination, and potential targeting by individuals or groups with prejudiced views. Voluntary return is not a feasible option as I genuinely fear for my safety in my home country. Additionally, there is a substantial risk that the country might refuse to accept my return, given the prevailing conditions and the potential harm I could face.

   The option of applying for a protection visa in Australia was not feasible due to challenges in providing immediate evidence and navigating the complexities of the visa application process. The urgency of my situation and the need for prompt action prompted me to seek alternative legal avenues. In light of these factors, I seek the understanding and consideration of the Tribunal in assessing my case for protection against the documented risks and harms associated with my return to my home country.

   Other Impediments to Return

   Returning to Kenya poses significant challenges for me due to my sexual orientation. As a gay individual, the societal norms in Kenya are hostile towards the LGBTQ+ community, creating an environment characterized by discrimination and violence. LGBTQ+ individuals, including myself, face the risk of persecution, imprisonment, and violence. Establishing myself in a society that considers being gay as abnormal and discriminates against such individuals poses a severe threat to my well­ being. The limited social, medical, and economic support available for LGBTQ+ individuals in Kenya makes it extremely challenging to maintain basic living standards. I have attached news reports and country information from ecoi.net to substantiate these concerns.’

   ·In his closing submission he stated:[107]

   [107] Transcript, page 72, lines 25-33.

   ‘I fear the – and the loss of, like, in – I fear – in the – including the loss of life and torture and also the people that treat you – they treat people cruel, your Honour. If I be forced to go back to Kenya, it will be such very hard for me to do things, even to get jobs because of my sexuality, your Honour. And also, in my country, the sexuality is a big issue. It’s a really big issue, and it’s considered, like, on my case when a government official in my country finds out that I am who I am, it will be something looking for big time in prison, your Honour. Or up to 14 years in prison.’

   ·Ms Chepkorir gave the following testimony:

   ‘Tribunal: Thank you. Madam Chepkorir, your nephew has told the tribunal that he is homosexual. Were you aware of that?

   Ms Chepkorir: Yes, back home when we were young, yes, he had that tendency, and he had a friend – a guy friend – or several – and they know back home. We not allowed to talk much about it, so I’m kind of aware about it, but we used to keep it on the low because, you know, when you have that tendency (indistinct) when keep you away from the society or do something really bad to you. Yes, I’m aware.

   Tribunal: Thank you. Now, given that, why do you think he indecently touched a young woman?‑‑‑

   Ms Chepkorir: (Indistinct) talk to him about it when we were young, and he told me that he kind of – he like (indistinct) the girls and the boys too. I didn’t know about – I don’t really know about his sexual orientation, but he’s – I can say he’s very sexual or something.’

   ·Mr Ngeno gave the following testimony:[108]

   ‘Mr West: I see. In your statement you talk about a life‑threatening situation that Mr Kipkosgei had which resulted in him being in a coma. What did he tell you about that?

   Mr Ngeno: Well, I can tell you as far as I know to the best of my knowledge and my memory, if my memory serves me right.

   Mr West: Yes?

   Mr Ngeno: Mr Kipkosgei has a – he is – how do I put this? For lack of a better word, he is – his sexual preference is not what (indistinct) provided what is – what is – what is allowed where we are from. So what he told me, he got into an altercation because of that, and he got injured. He showed me the scar because I remember (indistinct) because I asked him about his scar, and he explained it to me. He said that they (indistinct), so I didn’t ask much about it, and as far as I know it seems like he went through something terrible there. But that’s what I know about the situation, which resulted in him being in hospital.’

   [108] Transcript, page 57, lines 21-33.

2. Summarising Mr West’s contentions and submissions on this consideration:[109]

   [109] Transcript, page 65, lines 1-36, Mr West’s closing submission and Exhibit R2, Respondent’s SFIC [49] – [57].

   ·If the Tribunal decides to affirm the delegate’s decision, the impact on Mr Kipkosgei from this consideration will be that he can only apply for a protection visa.

   ·Mr Kipkosgei stated in cross-examination that he intends applying for a protection visa.

   ·Mr Kipkosgei claims in his SFIC and supporting statements that he is homosexual. Ms Chepkorir and Mr Ngeno provided some corroborating testimony in relation to this claim.

   ·Mr Kipkosgei’s claims that his June 2018 attack in Kenya was a consequence of his sexuality is disputed, with some evidence as well as Mr Kipkosgei’s prior declarations suggesting it was merely a robbery that resulted in violence being inflicted upon him.

   ·If the Tribunal sets aside the delegate’s decision, Mr Kipkosgei will remain an unlawful non-citizen as his Visa expired on 15 March 2023.[110] As a consequence, he will remain in detention for the purpose of his removal or until he applies for another visa. He would also remain in detention while any further visa application is considered.

   [110] Exhibit R3: Tender Bundle 4, page 133.

   ·If the Tribunal does not exercise the power to revoke visa, Mr Kipkosgei will be barred from applying for any other visa than a protection visa (ss 501E(l) and 501E(2)(a)), and he will remain in detention for the purpose of his removal. The Tribunal should consider the effect of s 50IE because of its decision.[111]

   [111] Mamatta v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA637.

   ·Under paragraph 9.1(1) of Direction 99, decision-makers are directed to be mindful that unlawful non-citizens are liable to removal from Australia as soon as practicable, and in the meantime, detention. The Tribunal should therefore take these legal consequences into account. The Direction then contains different guidance for decision-makers depending on whether an applicant is covered by a protection finding.

   ·Mr Kipkosgei is not currently covered by a protection finding. As such, the relevant provision is paragraph 9.1.2 of the Direction, which provides that claims which may give rise to international non­refoulement obligations can also be raised by a non-citizen who is not the subject of a protection visa finding in seeking revocation of the mandatory cancellation of their visa, as is the case here.

   ·Mr Kipkosgei has stated that he cannot return to Kenya because he may be exposed to unprovoked violence, which is widespread in the country.[112]

   [112] Exhibit R1: G12, page 90.

   ·In his SFIC and further statement to the Tribunal, he added further detail by stating that he fears a return would expose him to violence on account of his sexual orientation.

   ·Mr Kipkosgei states that he was previously exposed to violence in Kenya. He initially did not identify the motive but now does so in his submissions to the Tribunal. He states that he was attacked because he was ‘associating with another man’. He has also stated that he may be exposed to torture from his family because they invested heavily for his study in Australia and he will be punished for ‘squandering’ the opportunity.[113] He identifies that his sexual orientation (as he identifies as homosexual) will expose him to further harm. He has provided news articles detailing the violence towards the LGBTQ+ community in Kenya.[114]

   [113] Exhibit R1: G12, page 90.

   [114] Exhibit A12.

   ·The Visa is not a ‘protection visa’ as defined by the Act. There is no evidence in the material and information provided in this matter to suggest that Mr Kipkosgei has previously applied for a protection visa.

   ·He can apply for a protection visa and would not be liable for removal whilst any such application is determined (paragraph 9.1(2) of Direction 99 and s198(2)(c)(i)). In his submission to the Tribunal, he contends that applying for a protection visa in Australia ‘was not feasible due to challenges in providing immediate evidence and navigating the complexities of the visa application process’. This contention is vague and the Tribunal should not give it any weight. Consideration of those claims should be deferred to be considered as part of any protection visa application.

   ·Consistent with that submission, the majority of the High Court (Kiefel CJ, Keane, Gordon and Steward JJ) in Plaintiff MI-2021 v Minister for Home Affairs [2022] HCA 17 (M1-2021), held at [9] that, in deciding whether there was another reason to revoke the mandatory cancellation of the subject applicant’s visa pursuant to s501 CA(4)(b)(ii) of the Act where the applicant remained free to lodge an application for a protection visa:

   ‘(1) the Delegate was required to read, identify, understand and evaluate the plaintiff's representations made in response to the invitation issued to him under s 501CA(3)(b) that raised a potential breach of Australia's international non‑refoulement obligations;

   (2) Australia's international non‑refoulement obligations unenacted in Australia were not a mandatory relevant consideration; and

   (3) to the extent Australia's international non‑refoulement obligations are given effect in the Migration Act, one available outcome for the Delegate was to defer assessment of whether the plaintiff was owed those non-refoulement obligations on the basis that it was open to the plaintiff to apply for a protection visa under the Migration Act.’

   ·The High Court majority’s judgment therefore supports the Respondent’s submission that the Tribunal is entitled to defer assessment of whether Mr Kipkosgei is owed non-refoulement obligations on the basis that it is open for him to apply for a protection visa.

   ·The majority in M1-2021 also explained that where the cancelled visa is not a protection visa and a decision-maker defers assessment of whether non-refoulement obligations are owed to permit a former visa holder to avail themselves of the protection visa procedures provided for in the Act, it nevertheless may be necessary for the decision-maker to take account of the alleged facts underpinning that claim where those facts are relied upon by a former visa holder in support of there being “another reason” why the cancellation decision should be revoked.[115] The principles emerging from the judgment above have now been applied by the Federal Court in decisions made by the Tribunal affirming delegate non-revocation decisions.[116]

   [115] Plaintiff MI/2021 v Minister for Home Affairs [2022] HCA 17 at [39].

   [116] See HRZN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 133 and YYZQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 919.

   ·Applying that reasoning, the Respondent contends that the lack of detail in Mr Kipkosgei’s claims is such that those claims, whether considered individually or cumulatively with all his circumstances, do not rise to being “another reason” to revoke his Visa cancellation.

   ·Further, the High Court’s decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 (‘NZYQ’) is not engaged by Mr Kipkosgei’s circumstances. NZYQ’s effect is that, where the statutory duty to remove a non-citizen has arisen (pursuant to s 198 of the Act), the non-citizen’s detention will no longer be supported by ss189 and 196 of the Act where there is no real prospect that it will be practicable to remove the non-citizen in the reasonably foreseeable future, and the non-citizen must be released from immigration detention.

   ·The Respondent submits that the legal consequence of a non-revocation decision by the Tribunal is not affected by NZYQ because s198 of the Act (read with s 197C(1) and (2)) will continue to require Mr Kipkosgei’s removal. The Respondent does not concede that there is no real prospect of removal becoming practicable in the reasonably foreseeable future. This is because:

   oMr Kipkosgei has not applied for a protection visa. Further, no protection finding has been made in relation to him and, as such, s197C(3) is not engaged. Accordingly, the legal consequence of a non-revocation decision is that the s198 removal obligation will continue to apply and Mr Kipkosgei will continue to be detained under ss189 and 196 of the Act until either he applies for and is granted a protection visa, he is granted another visa under s 195A, a residence determination is made under s 197AB, or he is removed.

   oIf Mr Kipkosgei applies for a protection visa (as is open for him to do so), the removal obligation in s198 of the Act would not apply whilst his application is being determined: s198(5A). He would lawfully remain in immigration detention under ss189 and 196 of the Act pending the determination of his protection visa application.[117]

   oThis is not a case where there is no real prospect of Mr Kipkosgei’s removal. This is because, while his detention would be prolonged until one of the processes identified above occurs (which is a factor that may be given some weight in his favour), indefinite detention would not be a legal consequence of a decision by the Tribunal not to revoke the cancellation.

   ·The legal consequence of a non-revocation decision by the Tribunal is not affected by NZYQ because s 198 of the Act will continue to require Mr Kipkosgei’s removal, and the Minister does not concede that there is no real prospect of removal becoming practicable in the reasonably foreseeable future.

   ·Accordingly, the Respondent contends that this consideration does not weigh in the Mr Kipkosgei’s favour and is neutral. If the Tribunal finds that this consideration weighs in favour of revocation, the Respondent contends that it should only be given limited weight and is not sufficiently compelling to outweigh the primary considerations weighing heavily against revocation.

   [117] Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 33; Plaintiff S4 2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219, [21]; Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333, [26]; Commonwealth v AJL20 (2021) 273 CLR 43, [23].

   Tribunal’s Consideration

3. The Tribunal understands that no protection finding (as that term is defined in s 197C of the Act) has been made in respect of Mr Kipkosgei and that NZYQ does not apply to this matter for the reasons offered by the Respondent.

4. The Tribunal notes Mr Kipkosgei’s contentions and submissions regarding a non-refoulement claim. It has also considered his evidence, together with that of Ms Chepkorir and Mr Ngeno, regarding his sexuality.

5. The Tribunal has taken note of the decisions in M1-2021 and Mamatta v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[118]. It has evaluated and considered Mr Kipkosgei's representations regarding a potential breach of Australia's international non‑refoulement obligations.

   [118] Mamatta v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 637.

6. The Tribunal does not consider that Mr Kipkosgei’s oral testimony clearly demonstrates an intent to apply for a protection visa, contrary to the Respondent’s contention.

7. Paragraph 9.1.2(2) of the Direction 99 makes it clear that the option of deferring non-refoulement issues to an application for a protection visa arises “where it is open to the non-citizen to apply for a protection visa”.

8. The Tribunal considers that the appropriate course is to defer the consideration of Mr Kipkosgei’s non-refoulement claims to the more appropriate forum, namely a protection visa application as contemplated by para 9.1.2(2) of the Direction.

   Tribunal Finding: Other Consideration (a): Legal consequences of the decision.

9. The Tribunal considers that this Other Consideration (a) carries neutral weight.

   Other Consideration (b): Extent of impediments if removed.

10. Clause 9.2(1) of the Direction provides:

    1Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

    (a)the non-citizen’s age and health;

    (b)whether there are substantial language or cultural barriers; and

    (c)any social, medical and/or economic support available to them in that country.

    The Applicant’s and Respondent’s contentions

11. Mr Kipkosgei’s contention on this consideration is that he would face hardship and health risks problems if returned to Kenya. [119]

    [119] Exhibit A1: Applicant’s SFIC, page 8.

12. Summarising the Respondent’s contentions on this consideration:

    ·Mr Kipkosgei is in his mid-20s and has not declared any physical conditions. He has outlined that he will have access to mental health treatment in Kenya and may be exposed to stigma relating to his mental health.[120] The status of his mental health conditions and the requirement of on-going treatment and/or medication is and appears to have some relevance given his numerous involuntary hospitalisations.

    ·In terms of any cultural and language barriers, he left Kenya when he was aged 23 and maintains close ties with his family, specifically his mother, who resides in Kenya. He is educated in Swahili and English and was closely linked with Kenyan culture for much of his life. Upon return to Kenya, he may be exposed to short-term financial and emotional hardship but he has strong long-term prospects for employment in Kenya as he holds secondary and tertiary qualifications. The Tribunal should give this consideration minimal weight in Mr Kipkosgei’s favour.

    ·In the result, the Minister contends that any difficulties Mr Kipkosgei may face in re-establishing himself in Kenya would be temporary. This consideration weighs minimally in favour of revocation.

    [120] Exhibit R1: G12, page 90.

    Tribunal’s Consideration

1. This aspect of the Direction requires the Tribunal to assess and consider the extent of any impediments that Mr Kipkosgei, if removed from Australia to Kenya, will face in establishing himself and maintaining basic living standards taking the specific factors below into account.

   Sub-paragraph 9.2(1)(a) – the non-citizen’s age and health

2. Mr Kipkosgei is 28 years old.

3. The Tribunal has evidence and testimony before it that indicates that Mr Kipkosgei likely has mental health issues that remain unresolved, especially if he fails to take his medication.[121]

   [121] Exhibit R1: G13 Mr Kipkosgei’s mental health discharge summary reports from Bankstown-Lidcombe Hospital from his admissions on February 2020 and June 2020 record that he was assessed as 'mentally ill' and admitted for care under the NSW Mental Health Act. The reports indicate a history of drug induced psychosis, primarily in the context of daily cannabis use, and that his mental health was then deteriorating due to his medication non-compliance.

4. The Tribunal concludes, after looking holistically at the available evidence of Mr Kipkosgei’s general state of health and synthesising this evidence, that his mental health and arranging for its treatment in Kenya would impede his ability to re-settle and maintain basic living standards in Kenya.

5. Acknowledging the Federal Court’s decision in Holloway v Minister for Immigration, Citizenship and Multicultural Affairs,[122] the Tribunal considers that Mr Kipkosgei faces a risk that his removal to Kenya may aggravate and worsen his mental health due to the stresses and emotional hardships that the Tribunal acknowledges in its consideration of impediments he will likely face if removed.

   [122] Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126.

6. The Tribunal finds that this paragraph carries weight in favour of setting aside the delegate’s decision.

   Sub-paragraph 9.2(1)(b) – any substantial language or cultural barriers

7. The Tribunal considers that Mr Kipkosgei, based on his oral testimony[123] and the fact that he lived in Kenya for the majority of his life, would face few, if any linguistic difficulties if he returned to Kenya.

   [123] Transcript, page 23, lines 18-19.

8. The Tribunal also considers that Mr Kipkosgei is unlikely to face significant cultural issues for the same reason, as well as the presence of his family network in Kenya. The Tribunal acknowledges his contentions of emotional distress but observes that these are more personal than cultural.

9. Given the evidence of Mr Kipkosgei’s work history in Australia, his knowledge of Kenyan languages, his Kenyan family network and his relative youth, the Tribunal considers that he would be able to overcome any cultural barriers that arise. His Australian employment experiences would also appear to be transferrable to the Kenyan employment market.

   Sub-paragraph 9.2(1)(c) - any social, medical and/or economic support available to them in that country

10. The Tribunal considers that accessing Kenya’s medical system may prove problematic for Mr Kipkosgei in the short-term.

11. Addressing the potential for Mr Kipkosgei’s mental health to become an impediment, the Tribunal again acknowledges the Federal Court’s decision in Holloway v Minister for Immigration, Citizenship and Multicultural Affairs.[124]

    [124] Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126.

12. The Tribunal must consider both Mr Kipkosgei’s health as broadly construed, and any social, medical and/or economic support available to him in Kenya if he is returned there. To quote from Justice Colvin’s decision in Holloway:[125]

    ‘Used in the phrase 'age and health', the word health would ordinarily be understood to mean any aspect of a person's physical wellbeing and would include the overall state of a person's fitness and condition, including underlying health issues and ongoing effects of any past injury. Within ordinary parlance, a person's status as having a history of substance abuse, especially where there was evidence from which it may be concluded that there was a real risk of relapse into misuse of substances to such an extent that it would be an impediment to a person being able to establish and maintain basic living standards, is aspect of that person's overall health.’

    and

    ‘The error by the Tribunal was to confine the term “health” to only include currently manifested health issues and difficulties.’[126]

    and

    ‘Of course, there may be reasons why an underlying condition which is being managed or which is in remission or for which there is effective treatment may not be likely to manifest as an impediment.’[127]

    [125] Op.cit. [12].

    [126] Ibid, [13].

    [127] Ibid., [15].

13. The Tribunal finds that this paragraph carries weight in favour of setting aside the delegate’s decision.

    Tribunal’s analysis and consideration

14. The Tribunal has considered above the extent of any impediments that Mr Kipkosgei, if removed from Australia to Kenya, will face in establishing himself and maintaining basic living standards, considering the specific factors set out in paragraph 9.2(1).

15. In particular the Tribunal has analysed the interplay between Mr Kipkosgei’s mental health, broadly considered in light of the evidence and Holloway, and the available care and conditions to which he is likely to be exposed if removed to Kenya.

    Tribunal finding: Other Consideration (b) Extent of impediments if removed.

16. Having regard to the analysis and its consideration referrable to each of the three sub-paragraph components of this other consideration (b) and its findings in relation to each of these sub-paragraphs, the Tribunal considers that Mr Kipkosgei would face a level of emotional, practical, financial and medical hardship if he was returned to Kenya.

17. The Tribunal finds that this Other Consideration (b) carries moderate weight in favour of setting aside the delegate’s decision.

    Other Consideration (c): Impact on victims

18. Clause 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.

    Tribunal finding: Other Consideration (c): Impact on victims.

19. There is no evidence or testimony before the Tribunal about this consideration.

20. Based on the abovementioned statements, the Tribunal finds that this Other Consideration (c) carries neutral weight.

    Other consideration (d) Impact on Australian business interests if Mr Kipkosgei cannot remain here.

21. Paragraph 9.4 (1) compels an assessment of Mr Kipkosgei’s employment links to Australia with reference to any impact his removal may have on, ‘Australian business interests’, qualified by the words that ‘an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia’.

22. There is no evidence before the Tribunal that the Mr Kipkosgei’s removal from Australia would significantly impact Australian business interests or compromise the delivery of a major project or an important service in Australia.

    Tribunal finding: Other Consideration (d): the impact on Australian business interests if Mr Kipkosgei cannot remain here.

23. The Tribunal finds that Other Consideration (d) carries neutral weight.

    FINDINGS: OTHER CONSIDERATIONS

24. The Tribunal now summarises the respective weights it has allocated to each of the Other Considerations (specified in the Direction) relevant to the present matter:

    ·Other Consideration (a) – legal consequences of the decision:

    oThis consideration carries neutral weight.

    ·Other Consideration (b) - extent of impediments if removed:

    oThis consideration carries moderate weight in favour of setting aside the delegate’s decision.

    ·Other Consideration (c) - impact on victims:

    oThis consideration carries neutral weight.

    ·Other Consideration (d) – Impacts on Australian business interests:

    oThis consideration carries neutral weight.

    ADDITIONAL CONSIDERATIONS

25. The Direction does not limit the other considerations to those listed in the Direction (paragraph 9(1) of the Direction).[128]

    [128] Per Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471.

26. There are no additional considerations before the Tribunal in this matter.

    CONCLUSION

27. Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, Mr Kipkosgei does not pass the character test.

28. In determining whether there is ‘another reason’ to revoke the cancellation decision, the Tribunal has applied the Direction to this matter’s specific circumstances.

29. The Tribunal find as follows:

    ·Primary Consideration 1 - protection of the Australian community from criminal or other serious conduct:

    oThis consideration weighs very heavily in favour of affirming the delegate’s decision.

    ·Primary Consideration 2 - whether the conduct engaged in constituted family violence:

    oThis consideration has a neutral weight.

    ·Primary Consideration 3 - the strength, nature and duration of ties to Australia:

    oThis consideration carries moderate weight towards setting aside the delegate’s decision.

    ·Primary Consideration 4 - best interests of minor children in Australia affected by the decision:

    oThis consideration carries a neutral weight.

    ·Primary Consideration 5 – expectations of the Australian Community:

    oThis consideration carries material weight in favour of affirming the delegate’s decision.

30. The Tribunal has set out the weights attributable to the Other Considerations above.

31. The Tribunal has assessed and considered all the weights it has identified, applying the process outlined in Demir v Minister for Immigration, Citizenship and Multicultural Affairs at [21]:[129]

    [21] The metaphor of “weighing” relevant considerations should not be taken too literally. The exercise is not mathematical and cannot depend on the simple aggregation of factors on each side of a ledger. The conclusion as to whether there is “another reason” for the purposes of s 501CA(4)(b)(ii) necessarily involves persuasion of a human decision-maker, whose thought processes cannot be reflected in lines of code, as to what is the right result in the circumstances. That persuasion flows from the decision-maker’s personal understanding as to the significance of each of the factors they are required or permitted to take into account, in the light of all the material they have considered. So much is consistent with the decision-maker’s duty to “call his own attention to the matters which he is bound to consider” (Peko-Wallsend at 39 (Mason J), quoting Wednesbury at 229 (Lord Greene MR)) and to give “proper, genuine and realistic consideration to the merits of the case” (Khan v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, Gummow J, 11 December 1987; noted [1987] FCA 457; (1987) 14 ALD 291, 292). Correspondingly, the statutory specification of mandatory considerations requires those considerations to be taken into account, but not necessarily to be given any particular degree of weight: Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1758; 176 FCR 153 at [110] (Rares J) (varied on appeal (Australian Competition and Consumer Commission v Telstra Corporation Ltd [2009] FCAFC 68; 176 FCR 203), but not on this point).

    [129] Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870.

32. A comprehensive, holistic and integrated view of the Primary Considerations and the Other Considerations leads this Tribunal to a finding that it is not satisfied of there being another reason to revoke the cancellation of Mr Kipkosgei’s Visa. Accordingly, the Tribunal makes a finding of affirming the delegate’s decision to not revoke the cancellation of Mr Kipkosgei’s Visa.

    DECISION

33. Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 27 October 2023 to not revoke the cancellation of Mr Kipkosgei’s Visa.

I certify that the preceding two hundred and three paragraphs (203) paragraphs are a true copy of the reasons for the decision herein of Member D. Cosgrave

..........[SGD]...........

Associate

Dated: 1May 2024

Date of hearing:

9 January 2024

Representation for Applicant:

Mr Kelvin Kipkosgei, self-represented litigant

Solicitor for the Respondent:

Mr Chris West

Sparke Helmore Lawyers

ANNEXURE A – EXHIBIT REGISTER

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
RESPONDENT SUBMISSIONS
R1	Section 501G documents	Various	17 November 2023
R2	Respondent’s Statement of Facts, Issues and Contentions	22 December 2023	22 December 2023
R3	Respondent’s Tender Bundle	Various	22 December 2023
APPLICANT SUBMISSIONS
A1	Applicant’s Statement of Facts, Issues and Contentions	14 December 2023	15 December 2023
A2	Applicant’s Statement of Facts, Issues and Contentions (Undated)	Undated	18 December 2023
A3	Applicant’s IHMS Records	Various	6 December 2023
A4	Applicant’s Individual Management Plan	Undated	18 December 2023
A5	Applicant’s submissions regarding his rehabilitation	Undated	18 December 2023
A6	Letter of support from Clarence Ngeno (Friend)	Undated	4 January 2024
A7	Letter of support from Judy Chepkorir (Aunty)	4 January 2024	4 January 2024
A8	Letter of support from Emmanuel Kipkosgei (Friend)	Undated	4 January 2024
A9	Letter of support from Dean Cochrane (Football Coach)	29 December 2023	30 December 2023
A10	Letter of support from Lewis Nawej (Friend)	Undated	4 January 2024
A11	Bundle of course completion certificates	Various	18 December 2023
A12	Applicant’s submissions on LGBT rights in Africa and Kenya	Various	18 December 2023
A13	Instagram photo of Applicant making coffee	18 July 2020	18 December 2023