Lal and Minister for Immigration and Multicultural Affairs (Migration)

Lal and Minister for Immigration and Multicultural Affairs (Migration) [2024] AATA 3504 (2 October 2024)
Division:General Division
File Number:2022/4657
Re:Din Sang Lal
APPLICANT

Minister for Immigration and Multicultural Affairs And
RESPONDENT

DECISION
Tribunal:Senior Member T Tavoularis

Date: 2 October 2024
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), this Tribunal affirms the decision made by a delegate of the Respondent on 16 May 2022 to not revoke the mandatory cancellation of the Applicant’s Global Special Humanitarian (Class XB) (Subclass 202) visa.
..................[SGD]......................
Senior Member T Tavoularis
Catchwords
MIGRATION – remittal – non-revocation of mandatory cancellation of a visa – failure to pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 110 – risk of recidivism found to be medium – nature and seriousness of criminal offending found to be extremely serious – where factors in favour of revocation outweighed by factors against revocation – Tribunal finding there is not another reason to revoke the mandatory cancellation decision – decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666
M1/2021 v Minister for Home Affairs (2022) 400 ALR 417
Walker v Minister for Home Affairs (2020) 171 ALD 37
Secondary Materials
Ministerial Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (21 June 2024)
REASONS FOR DECISION
Senior Member T Tavoularis
2 October 2024
INTRODUCTION AND PROCEDURAL HISTORY

Din Sang Lal (‘the Applicant’) is a 24 year old citizen of Myanmar. He arrived in Australia on 26 June 2015, aged 15 years. His movement history confirms that he has never left Australia since his initial arrival.[1] Consequent upon and offending history compiled in this country after his arrival, the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Minister’ or the ‘the Respondent’) did, on 20 February 2019, mandatorily cancel the Applicant’s then - held Global Special Humanitarian (Class XB) (Subclass 202) visa (‘the Visa’).[2] This mandatory cancellation occurred pursuant to section 501(3A) of the Migration Act (1958) (Cth) (‘the Act’).
[1] R1, p. 57.
[2] R1, pp 64 – 69.
On 10 March 2019, the Applicant made the necessary representations seeking revocation of the abovementioned mandatory cancellation decision. On 16 May 2022, pursuant to section 501CA(4) of the Act, a delegate of the Respondent refused to revoke the original mandatory cancellation decision.[3] Following due notification of this non-revocation decision to the Applicant,[4] there followed an application from the Applicant to this Tribunal seeking a review of the refusal-to-revoke decision made on 16 May 2022 which I will now refer to as the ‘Decision Under Review’.
[3] R1, pp. 93 - 100.
[4] R1, p. 103.
This proceeding comprises the first ventilation of the substantive application before the Tribunal. The relevant hearing proceeded before me by video on 27 August 2024 and was concluded in the one hearing day. At the commencement of the hearing, the parties agreed the Tribunal's list of material should be consolidated into an agreed Exhibit List.[5] I have attached that list to these Reasons which I have marked ‘Annexure A’. The hearing also received oral evidence from (1) the Applicant, (2) the Applicant’s brother, Robin Mang Thawm Lian, and (3) Lead Pastor Tawk Kap.
[5] See generally, Transcript, p.2, lines 8-46; p,3, lines 1-18.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by section 501CA(4) of the Act. Relevantly, this provides that:
4 The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
I am satisfied that the Applicant made the representations required by section 501CA(4)(a) of the Act. I am also satisfied this Tribunal has jurisdiction to review the non-revocation decision pursuant to section 500(1)(ba) of the Act.
There are therefore two issues presently before the Tribunal:
(a)whether the Applicant passes the character test; and if not
(b)whether there is another reason to revoke the mandatory cancellation of the Applicant’s Visa.
Does the Applicant pass the character test?
The Applicant does not pass the character test as a matter of law.[6] He was sentenced to a custodial term of imprisonment of two years and six months on 30 November 2018. This custodial term comfortably meets the respective threshold requirements appearing in sections 501(6)(a) of the Act (‘substantial criminal record’) and 501(7)(c) of the Act (‘sentenced to a term of imprisonment of 12 months or more’). Accordingly, the Applicant cannot rely on section 501CA(4)(b)(i) of the Act for the mandatory cancellation of his Visa to be revoked.
[6] Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666 at [63].
Is there another reason to revoke the mandatory cancellation of the Applicant’s visa?
In considering whether there is another reason to revoke the mandatory cancellation of the Applicant’s Visa,[7] the Tribunal is bound by section 499(2A) of the Act to comply with any directions made under the Act. In this case, Direction No. 110 – visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘Direction’ or ‘Direction 110’) has application.[8]
[7] Pursuant to section 501CA(4) of the Act.
[8] Direction No 110 commenced on 21 June 2024. It replaces Direction No. 99 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a

non-citizen’s visa, the Direction contains several principles that must inform a decision maker’s application of the considerations relevant to the decision. The principles that are found in paragraph 5.2 of the Direction are as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The safety of the Australian Community is the highest priority of the Australian Government.
(3) 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.
(4) 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 noncitizen poses a measurable risk of causing physical harm to the Australian community.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7) 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.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out three Other Considerations which must be taken into account. These considerations are:
(a)legal consequences of the decision;
(b)extent of impediments if removed; and
(c)impact on Australian business interests.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Direction further provides that the Australian Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight allocable to this 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.
I will consider each in turn.
The nature and seriousness of the Applicant’s conduct to date.
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)     violent and/or sexual crimes;
(ii)    crimes of a violent and/or sexual 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 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;
(e)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(f)the cumulative effect of repeated offending;
(g)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(h)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
(i)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Applicant’s offending history appears in the material.[9] At first blush, it is possible to count a total of nine convictions in that history.[10] However, there are two anomalies in the history which, to my mind, should be approached with caution. The first anomaly appears in the entry referrable to the Applicant’s first sentencing episode. On 15 March 2018, the Applicant was dealt with at the Ringwood Childrens Court for two offences comprising

(1) affray (common law) and (2) assault with kicking. The Applicant turned 18 on

5 October 2017 and was thus an adult when dealt with by the Ringwood Childrens Court on 15 March 2018. It may be the case that he committed these two offences as a minor but attained adulthood between the date of alleged commission of those offences and the date of appearance before the sentencing court.
[9] R1, pp. 15-16
[10] Note to Reader: one of these nine proffered charges comprises ‘theft from shop (shopsteal)’ and it carries the notation (‘5 Charges’) next to it. For present purposes, I will presume it comprises one proffered charge and not five. Similarly, another proffered charge is ‘Unauthorised person drive motor vehicle on road’. It carries the notation ‘(2)’ after it. Again, I will, for present purposes, presume it comprises one proffered charge and not two.
The sentencing notation in the criminal history says: ’Without conviction, the accused is placed on Probation for a period of 6 months to 14/9/2018.’ It is not entirely clear as to whether the reader of the criminal history is to interpret these two offences were committed by the Applicant as a child. Out of an abundance of caution, I will proceed on the basis that they are precluded offences for present purposes and not take them into account in the assessment of the nature and seriousness of the Applicant’s unlawful conduct in this country.
The second anomaly is to be found in the second sentencing episode appearing in the criminal history. It occurred on 20 April 2018. The history says the Applicant was before a sentencing court on that day to be dealt with for the commission of three offences, they being: (1) going equipped to steal / cheat; (2) theft from shop (shopsteal) (5 charges); and (3) handle/receive/retention stolen goods. The sentencing notation next to this sentencing episode says: ‘At the date of issue, these charges have not been determined by a court. This cannot be regarded as a finding of guilt against the individual named above.’ For present purposes, I will presume the ‘individual named above’ is a reference to the Applicant.
The criminal history does not contain any subsequent entry for when any or all of these three charges were finally dealt with nor is it evident from anywhere else in the material that any or all of these charges were dealt with at another time, including by being re-charged as another offence(s). Again, out of abundance of caution, I will not take these proffered three charges into account in the assessment of the nature and seriousness of the Applicant’s unlawful conduct in this country to date.
The Applicant’s offending: A summary
When the above five proffered charges are discounted from the criminal history we are left with convictions for four offences that were dealt at three separate sentencing episodes. These are the details:
·on 30 November 2018, the Applicant was convicted by the District Court of South Australia on one count of ‘Cause harm by dangerous driving – aggravated offence and one count of Cause death by dangerous driving – aggravated offence.’ The sentence imposed for both of these offences was expressed as ‘Sentenced 2 years and 6 months imprisonment; Non parole period 2 years; Drivers licence disqualification 11 years’;
·on 18 December 2018, the Applicant was convicted by the Mt Gambier Magistrates Court on one count of ‘Unauthorised person drive motor vehicle on road (2)’. For this offending the court imposed sentenced him thus: ’Convicted Discharged without penalty’; and
·on 10 September 2021, the Applicant was convicted by the Melbourne County Court on one count of ‘Person sexually penetrate child under 16’. The sentence imposed by the court was ’380 days imprisonment’.
In terms of sentencing modalities, the Applicant has received:
·two custodial terms with cumulative head custodial time approaching three years and seven months;
·one disqualification of his driving privileges for a period of 11 years; and
·one discharged conviction without penalty.
As best as I understood the Applicant’s offending history (and the material more generally), the Applicant does not appear to have compiled a traffic history[11] in this country.
[11] That is, to be clear, regulatory type offences such as, for example, exceeding the speed limit.
Application of factors appearing at paragraph 8.1.1(1) of the Direction
Prior to application of the above mentioned factors to the Applicant’s offending, it is necessary for the reader of these Reasons to obtain a fulsome understanding of the factual circumstances giving rise to the two incidents that resulted in the proffering of the four remaining charges I will take into account for the purposes of assessing the nature and seriousness of this Applicant’s unlawful conduct in this country.
The first of those two incidents involved the Applicant being sentenced by the District Court of South Australia on 30 November 2018. The two charges before the court were

(1) ‘Aggravated causing death by dangerous driving’; and (2) ‘Aggravated causing harm by dangerous driving’. A fulsome understanding of the nature and circumstances of the incident appear in the sentencing remarks of the learned sentencing judge.[12] They are to be found at Exhibit R1, pages 19-21 of the material. A precis of the nature of the offending helpfully appears in the Respondent’s Statement of Facts, Issues and Contentions.[13] That precis is put in these terms:
‘In relation to the offences of dangerous driving causing harm/death, the applicant was intoxicated (0.108%), speeding (between 123 and 164km/h in a 110km/h zone), and had no licence. One passenger was killed and another suffered harm. The applicant had only 4 weeks before been caught driving unlicensed with alcohol (0.043%) in his system. The crime has affected the deceased’s mother significantly. The crimes were not at the lower end of the scale of seriousness for crimes of this kind. The seriousness of this offence, by reference to the above factors and the sentence imposed, indicates the seriousness.’[14]
[Internal citations omitted]
[12] His Honour Judge Brebner.
[13] R2.
[14] R2, p.7, [28.1].

The second of the two incidents involved the Applicant being sentenced by the County Court of Victoria on 10 September 2021. The charge before the court was one of ‘person sexually penetrate child under 16’. A fulsome understanding of the nature and circumstances of the incident appear in the sentencing remarks of the learned sentencing judge.[15] They are to be found at Exhibit R1, pages 22 – 32 of the material. Again, a precis of the nature of the offending helpfully appears in the Respondent’s Statement of Facts, Issues and Contentions.[16] That precis is put in these terms:
‘In relation to the offence of sexually penetrate a child, the victim was only 14 and ½ years old and was quite intoxicated. The applicant told the victim to follow him to a place with dense bushes, where he told her to lie down, and despite her intoxication and protests, he penetrated her vagina with his penis. The applicant exploited a vulnerable victim which caused her significant ongoing adverse effects. Sexual offences including against children are viewed very seriously by the Australian government and Australian community.’[17]
[Internal citation omitted]
[15] His Honour Judge Mullaly.
[16] R2.
[17] R2, p.7, [28.2].
The chapeau to paragraph 8.1.1(1)(a) of the Direction outlines the three categories of conduct which are viewed very seriously by the Australian Government and the Australian Community. I am immediately and comfortably satisfied that this Applicant’s conduct perpetrated on a 14-and-a-half-year-old victim constitutes both a sexual crime[18] and a crime of a violent and sexual nature against a child.[19] I therefore readily reach a conclusion that this Applicant’s conduct should be characterised as very serious conduct indeed.
[18] Pursuant to paragraph 8.1.1(1)(a)(i) of the Direction.
[19] Pursuant to paragraph 8.1.1(1)(a)(ii) of the Direction.
I make particular reference to the language of paragraph 8.1.1(1)(a) of the Direction which, inter alia, says ‘In considering the nature and seriousness of the non-citizen’s criminal offending… to date, decision-makers must have regard to the following: (a) without limiting the range of conduct that may be considered very serious, …’. [My emphasis] Although not being conduct falling within the auspices of any of the sub-paragraphs at 8.1.1(1)(a)(i),(ii) or (iii), I have no hesitation in referring to the Applicant’s conduct giving rise to his respective convictions for dangerous driving causing harm/death.
This was conduct that involved the Applicant driving while intoxicated with a blood alcohol concentration of 0.108%, that involved him speeding by driving at an estimated speed of between 123 and 164 km/h in a 110 km/h zone, that involved him driving whilst unlicensed and that resulted in the death of one of his passengers with another passenger suffering physical harm. This conduct occurred only four weeks after the Applicant’s detection for (1) unlicensed driving; and (2) driving with a blood alcohol concentration of 0.043%.
Once again, I am immediately and comfortably satisfied that this Applicant’s conduct giving rise to his respective convictions for dangerous driving causing harm/death is conduct that should be now found to be very serious indeed. I make this finding even though it does not fall within any of the three descriptors appearing in paragraph 8.1.1(1)(a) of the Direction.
The chapeau to paragraph 8.1.1(1)(b) of the Direction outlines the range of conduct (without limitation) that is considered to be ‘serious’ by the Australian Government and the Australian community. The Applicant has not offended in the realm of either entering into or being a party to forced marriage.[20] To the best of my understanding of his offending history, none of it comprises conduct compelling a finding by me that he does not pass an aspect of the character test dependant on my opinion, as opposed to my earlier finding that he fails the character test as a matter of law.[21] Nor does he carry any convictions for crimes committed against vulnerable members of the community (such as the elderly or disabled) or government officials (such as the Police) in the performance of their duties.
[20] Paragraph 8.1.1(1)(b)(i) of the Direction.
[21] Paragraph 8.1.1(1)(b)(iii) of the Direction.
The material contains reference to several ‘Incident Detail Reports’ which refer to certain incidents involving the Applicant during his time in immigration detention. Those incidents can be summarised in these terms:
·on 28 March 2024, detention centre Officers located a small razor blade in a plastic bag concealed within the Applicant’s waist bag;[22]
·on 12 June 2024, detention centre Officers noticed, via internal camera observation, the Applicant discarding a cigarette butt on the ground. When the Officers investigated further, they noticed that the butt contained a suspected strip of suboxone inside it; [23]
·on 25 June 2024, the Applicant was observed, again by internal supervision camera to place a pouch of what appeared to be tobacco in a cup which was then concealed in the lining of a bin;[24] and
·on 28 June 2024 the Applicant is recorded to have been involved in conduct whereby he ‘… reaches out, grabs [another] detainee… shirt front and tries to pull him into the room. [The other] Detainee… resists and… [the Applicant] throws a punch that connects with [the other] detainee… head. The two detainees start fighting and they stumble into [the Applicant’s] room.[25]
[22] R4, p. 3.
[23] R4, p.7.
[24] R4, p.9.
[25] R4, p. 12.
While these are recorded incidents about the Applicant’s conduct in immigration detention, none of those incidents resulted in ‘a crime committed’ as required by paragraph 8.1.1(1)(b)(iv) of the Direction. This is because the Applicant has no convictions for this conduct. Given that none of the components of this paragraph 8.1.1(1)(b)(i)-(iv) (inclusive) of the Direction are engaged, it can put to one side and be rendered neutral for present purposes.
Paragraph 8.1.1(1)(c) of the Direction requires an examination of the sentences imposed on the Applicant as a guide for the assessment of a non-citizen’s offending. This paragraph contains precluded categories of sentences which I cannot take into account. Those categories relate to (1) crimes of a violent and/or of a sexual nature against women; (2) acts of family violence; and (3) crimes involving causing a person to enter into, or being a party to, a forced marriage. Having regard to the total of the four abovementioned sentencing episodes, I am precluded from taking into account the sentence of 380 days imprisonment imposed on the Applicant upon his conviction for person sexually penetrate child under 16.
But I am not precluded from taking into account the significant sentence of ‘… 2 years 6 months imprisonment, Non parole period 2 years’ imposed on the Applicant by the District of South Australia on 30 November 2018 on respective convictions for dangerous driving causing harm and death – aggravated offences. I am satisfied that this paragraph 8.1.1(1)(c) very strongly militates in favour of a finding that the Applicant’s conduct has been of a, very serious nature. I so find.
Paragraph 8.1.1(1)(d) of the Direction looks for evidence about the impact of a

non-citizen’s offending on any victim and their family. One need look no further than the relevant sentencing remarks of the learned sentencing judges. With reference to the Applicant’s conduct resulting in the death of one of his passengers, the sentencing judge noted the following:
‘The deceased's mother says she has no words to describe the emotional and financial effects of the loss of her only son and it is plain that his death has affected her significantly and her dream of him caring for her as she gets older cannot now come true. She is undertaking counselling, she is a good Christian and she forgives you.’[26]
[26] R1, p.20.
With reference to the Applicant’s conduct resulting in his conviction for ‘person sexually penetrate child under 16’, the learned sentencing judge noted the following:
‘11. I heard her victim impact statement read now twice, and she also spoke to me by virtue of the enabling technology that we now have for court hearings in COVID times. The victim in her victim impact statement said that the crimes have affected her to the extent where she no longer sees herself as a person. She says: 'I am not living. I simply survive each day. No enjoyment in life Anymore.
12. She feels overwhelmed; the emotions of pain, frustration and failure. She struggles with commonplace things that others are simply able to do. She barely sleeps. She can no longer concentrate at school and struggles with eating and her body image. She has been diagnosed with depression, anxiety, and severe post-traumatic stress disorder. She wonders how she will be able to cope.
13. The crime impacted on her relationships with her own family. She often acts erratically because she is overwhelmed with emotions. Her friendships she describes poignantly as being self-sabotaged because there are long periods of time when she could not leave her bed or did not want to interact with friends or anyone else.
14. She struggles to trust men in general. She said: This crime is something people in this court are able to move on from. But I will have these memories and feelings stuck with me for the rest of my life .
15. In her victim impact statement she speaks directly to you and the other offender in saying: This crime has impacted on so many aspects of my life, and now because of you I have to live with this.’[27]
[27] R1, pp. 24-25, [11]-[15].
This Applicant’s offending has catastrophically impacted one victim and has very significantly impacted another in terms of the psychological harm she has suffered and continues to suffer. His impact has also devastated at least one family member of one of the victims, she being the mother of the passenger killed in the vehicle driven by the Applicant. I have no difficulty or hesitation in concluding that this paragraph 8.1.1(1)(d) of the Direction very strongly militates in favour of a finding that the totality of his offending has been ‘very serious’. I so find.
Paragraph 8.1.1(1)(e) of the Direction looks at the frequency of a non-citizen’s offending and/or whether there is any trend of increasing seriousness. The Applicant’s offending history is one of relative brevity both in terms of the number of offences committed and its length, measured in terms of sentencing episodes. But that does not mean I will not have regard to this paragraph 8.1.1(1)(e).
The offending history cannot be readily labelled as frequent. The commission of four offences across three years may be described as moderately frequent offending because it equates to more than one offence per year. At first blush, one may think there is no trend of increasing seriousness to the offending. But this is because the offending has been very serious – indeed catastrophically serious - from its outset. His first two convictions resulted in the death of one victim and physical injury to the other. His subsequent appalling offending against a minor has, in all likelihood, very seriously impacted her mental wellbeing for the rest of her life.
I will apply this paragraph 8.1.1(1)(e) towards a finding that the Applicant’s offending has been (1) of a moderately frequent nature but that; (2) it has been very serious from its outset. This paragraph 8.1.1(1)(e) very strongly militates in favour of a finding that the totality of his offending has been ‘very serious’. I so find.
Paragraph 8.1.1(1)(f) looks for any cumulative effects to be gleaned from the Applicant’s pattern of offending. There is no escaping the awful reality – and very unfortunate cumulative effects – of this Applicant’s offending. The sentencing remarks make it clear that his unlawful conduct has (1) caused the death of one victim; (2) very seriously impacted the mental wellbeing of another victim, probably for the rest of her life; and (3) absolutely devastated the mother of the deceased victim.
I am yet to encounter a case such as this where the cumulative effects of a non-citizen’s offending in this country have resulted in such truly awful cumulative effects upon its victims and at least one family member of those victims. The Applicant can say nothing in response to this observation. This paragraph 8.1.1(1)(f) very strongly militates in favour of a finding that the totality of his offending has been ‘very serious’. I so find.
The Applicant has never left Australia since his initial arrival on 26 June 2015. There is therefore no evidence before the Tribunal that he has provided false or misleading information to the Respondent’s Department in, for example, an incoming passenger card or any other document. Paragraph 8.1.1(1)(g) should be put to one side and rendered neutral for present purposes.
There is no evidence that the Applicant has re-offended following receipt of a warning about the consequences of such further offending on his Visa status to remain here. Paragraph 8.1.1(1)(h) should be put to one side and rendered neutral for present purposes. There is no evidence of him carrying any convictions for offences committed in another country. Paragraph 8.1.1(1)(i) should be put to one side and rendered neutral for present purposes.
Conclusion about the nature and seriousness of the Applicant’s conduct
I have had regard to the relevant sub-paragraph componentry of paragraphs 8.1.1(1)(a)-(h) (inclusive). Paragraph 8.1.1(1)(a) is engaged and facilitates the allocation of a very serious descriptor to this Applicant’s offending. Likewise, paragraphs 8.1.1(1)(c),(d),(e) and (f) each facilitate a finding of very serious in relation to this Applicant’s offending. But such has been the catastrophic (i.e. death) impact on one victim and the extremely serious psychological impact on another victim and the mother of the deceased victim, that I do not think the descriptor very serious adequately describes this Applicant’s unlawful conduct in this country.
The circumstances contextualising his behaviour culminating in the criminal convictions now before this Tribunal have been so appalling, dreadful and catastrophic such that the totality of my findings around paragraphs 8.1.1(1)(a), (c), (d), (e) and (f) of the Direction now cause me to apply the extremely serious descriptor towards the nature and seriousness of this Applicant’s offending in this country. I so find.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)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 (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken);
(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.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Were the Applicant to re-commit any of the conduct resulting in convictions identical or very similar to the four convictions before the Tribunal, it is not at all a stretch of the evidence to suggest and find that the nature of the resulting harm to individuals and\or the Australian Community would result in (1) extremely serious psychological harm; (2) extremely serious physical harm; and (3) catastrophic harm to one of its victims.
There is no requirement to, as it were, look forward or extrapolate future scenarios resulting from similar further offending by this Applicant. His offending speaks for itself: it has killed someone, physically injured someone, extremely seriously harmed the psychological wellbeing of a victim, most probably for the rest of her life; and caused the mother of one victim to experience and endure the unimaginable loss of her son in the prime of his life.
I will also find, pursuant to paragraph 8.1.2(1) of the Direction, that the harm resulting from the Applicant’s recommission of offending is so extremely serious that any risk of its recommission would be unacceptable to the Australian community. This is especially the case with regard to his offending convicted as ‘cause harm by dangerous driving – aggravated offence; cause death by dangerous driving – aggravated offence; and person sexually penetrate child under 16’.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Applicant’s evidence
In his Personal Circumstances Form (‘PCF’), the Applicant says: ‘There is a low risk of me reoffending: Firstly, my driver license has been revoked by Judge Brebner for a period of 11 years. Secondly, I will seek counselling for drinking issues and mental health. I have suffered depression and nightmares over the months since the accident took place. Thirdly, I have excellent family and community support to guide and monitor my well-being and behaviour.[28]
[28] R1, p. 48.
In another part of the PCF, the Applicant says ‘I stated my remorse and sorrow in court before Judge Brebner’.[29] He adds that he ‘… is fully aware that his actions have led to a tragic loss of a friend and that he has caused hardship to others through them’.[30] The Applicant further contends in his PCF that ‘… incarceration allows him the opportunity to reflect and learn how to make better choices in his future life’.[31] In terms of recidivist risk, the Applicant’s PCF says that he ‘… considers himself a very low risk of reoffending’.[32]
[29] R1, p. 49.
[30] R1, p. 49.
[31] R1, p. 49.
[32] R1, p. 49.
In the Reasons for the application section of the instant application, the Applicant was asked to say why he thought the Decision Under Review was wrong. He said: ‘I was 18 when I went to prison and it has been 3 and half [sic] years since… I understand I have commit a crime [sic] and I have paid the price in jail and I have lots of times to reflect on my mistakes… I believe I deserve a second chance to stay with my family and friends to do the right thing and start over my life to become a better citizen for the country and community. The immigration have not believed I have been rehabilitated…’.[33]
[33] R1, p. 146.
During cross-examination, the Applicant was asked about his plans and intentions in the event of his return to the community. In terms of accommodation, he said that he would reside with his mother and father in Melbourne.[34] He was asked whether he would be seeking remunerative employment and he replied in the affirmative. He spoke of a likelihood of finding remunerative work in the same factory where his father works.[35] He also mentioned finding employment ‘… with my cousins and stuff who work in, like, constructions or in – somewhere in gardening and also, there’s a farm, farm work’.[36] He also spoke of wanting to re-commence his participation in community activities if returned to the community now.[37]
[34] See generally, Transcript, p. 26, lines 19 – 22.
[35] See generally, Transcript, p. 26, lines 24 – 29.
[36] Transcript, p. 26, lines 29 – 31.
[37] See generally, Transcript, p. 26, line 37.

The Applicant’s cross-examiner asked him about the likelihood of him reconnecting with his negative peer influences he knew prior to his offending in the event of his return to the community now. He unconvincingly responded with the following which concerningly contained confirmation that he has not totally severed his contact with those negative influences. His evidence appeared to go no higher than ‘… when it comes to alcohol, I am going to try my best, and I know I will…’:
‘MR ELLISON: One of the things that might concern the minister is that you meet up with old friends and you get back on the alcohol. What do you say to that suggestion?
APPLICANT: What I – unless I – it’s hard for me to explain, because I haven’t been really out since I’ve been locked up and it’s been a long time since and I’ve learnt so many things since I was in jail, and I’ve seen a few of my friends lose their life over alcohol and it’s really affected me in a lot of different ways, and that’s why I used to tell even my family that, in a way, that I’m really happy that I – not because of what happened but that I was in jail because I really learnt so many things and it makes me really my eye open to how much – how much bad things I did. And every day, I always tell myself and try to be the best. So even when it comes to alcohol, I’m going to try my best, and I know I will, and my friends and my family are very supportive, and with all the courses I did as well, I’ve got a lot of knowledge on how I can avoid, so I think I could say that I’m not going to use.’[38]
[38] Transcript, p. 26, lines 39 – 47; p. 27, lines 1 – 5.
The extent of the Applicant’s rehabilitation
In his PCF, the Applicant refers to his claimed understanding ‘… that I clearly made poor decisions and have spent a lot of time reflecting on how I should have acted. I acknowledge that I may have a drinking problem and have agreed to do counselling on this issue. I stated my willingness to seek counselling on this matter in front of His Honour Judge Brebner’.[39]
[39] R1, p. 49.
During cross-examination, he was asked about the extent to which he was willing to become engaged in ongoing rehabilitation if returned to the community. His response was aspirational as opposed to actual. In other words, he spoke of a future intention to undertake courses but had little or nothing to say about the extent to which he has already undertaken clinical treatment to demonstrate that his past difficulties with alcohol are under some form of defined treatment, management and control:
‘MR ELLISON: What about professional supports for counselling or abstinence from alcohol?
APPLICANT: I’m willing to do any of the courses, and my brother as well told me that I should. As soon as I get out, we’re going to use – try to look for, like, social worker or something to – and my church pastors, they will try to help me and show me the – guide me through it.’[40]
[40] Transcript, p. 27, lines 7 - 11.
Also during cross-examination, the Applicant was taken to a Offender Plan which dates from May 2019 and which appears in the material. He was taken to specific parts of the relevant ‘Offender Plan’ narrative that appears in the material. That specific narrative of the Offender Plan was put to the Applicant in these terms:
‘Mr Sang [the Applicant] disclosed that he had first commenced alcohol consumption at age 13 or 14 prior to settling in Australia . He stated that in Burma homemade alcohol was available and it was not frowned upon to commence consumption at a young age. Mr Sang commented that when he came to Australia at age 16 he stopped alcohol consumption. He explained that this was when he was attending school. After leaving school at age 17 he started to associate with other friends who were consuming alcohol on a regular basis. Mr Sang confirmed that he would share a carton of beer between two to three friends on the weekends as mentioned in the pre-sentence report…
….
Mr Sang stated that his alcohol consumption was related to the index offences. He remarked that he was not considering the consequences of driving unlicenced and at speed whilst under the in fluence of alcohol.
Mr Sang commented "my whole life related to alcohol, it basically ruined my life.
…
Mr Sang stated that he had previously engaged in a program for alcohol consumption in Melbourne under the Youth Justice system. He remarked that a counsellor would see him once a week. Mr Sang recalled that this had been helpful at the time.…’ [41]
[41] R3, 502 – 503.
When asked about the above narrative, the Applicant confirmed that he did commence alcohol consumption at around 13 or 14 years of age while he was still in Burma. He also agreed that he stopped consuming alcohol when he came to Australia aged 16 years at which time he was attending school here. He also confirmed as truthful the part of the narrative that says after leaving school when he was aged 17, he commenced associating with other people who were consuming alcohol on a regular basis. He also confirmed as true the part of the narrative which talks about him sharing a carton of beer with between two and three friends on the weekend.
He was asked about the reference in the narrative that refers to him having previously engaged in a program for alcohol consumption in Melbourne under the Youth Justice system and his consequent involvement with a counsellor once a week. He spoke about this counselling in these terms:
‘MR ELLISON: Do you, sitting here today, remember what that program involved?
APPLICANT: The social worker, I think, the person that was running the program, he usually meet me in the – sometimes in the cafe and we would just sit down and he would tell me about things that I should aware of; like, for example, to eat food if I were to drink. He told me about eating food and to stay hydrated, things like that.
MR ELLISON: Do you remember how many times you met with the social worker?
APPLICANT: About five, or – I’m not sure, sir. I’m sorry. I’m not sure.
MR ELLISON: Okay. Can you remember anything else about that program?
APPLICANT: No. Just about that. That’s all I know.’[42]
[42] Transcript, p. 20, lines 16 – 27.
He also agreed with the narrative which talks about him saying that alcohol has basically ruined his life. He was asked to clarify why he thought this was the case and he responded with the following:
‘When I say alcohol ruined my life, I’m not trying to blame on the alcohol for all the actions I did, but – because, since I’ve been locked up, I got a lot of time to think back on my life and my actions, and I realised that, every time I did something wrong, then I was always intoxicated, so it makes me realise that, even though it’s not – it might not be the alcohol that makes me do it, because it’s my decision on things that I do, but I feel like alcohol is always a part of it, and that’s why I vouch myself to not drink. And even though in jail and in detention, they somehow make homebrew and stuff like that as well, but I’ve never been drinking and I’ve been always stay out of it, and I also promise, basically, not to ever drink again in my life.’[43]
[43] Transcript, p. 20, lines 23 – 33.
He told his cross-examiner that it is coming up to six years since he was last in the community because he has been in either prison or immigration detention for that almost six-year period. He said that he had not used alcohol at all during that almost six-year period.
The Applicant was then taken to a Certificate of Completion appearing in the material which appears to confirm his completion of a course called ‘Drug and Alcohol Abuse 101’.[44] He confirmed that he completed the course in July of this year and that it involved seven contact hours.[45] He confirmed that this was an on-line course and that ‘… it involves writing some essays and reading and multiple choices, and yes, stuff like that’.[46] With reference to this particular course, he was asked what he had learnt from it. He responded with the following:
‘So in this course, we learn about how alcohol affect – because I think this one is for – based in America, so it shows us how much it affect the countries and how many people were affected by drug and alcohol abuse, and also how parents being – like, parents drinking can – how it can affect the children, and how children drinking – like, because it’s common for teenagers to drink to look cool and without thinking of the consequences and things like that and what it could lead to, and about it leads to crime and can also lead to, so, like, trouble with the laws, things like that.’[47]
[44] A1.
[45] See generally, Transcript, p. 21, lines 43 – 45.
[46] Transcript, p. 22, lines 6 – 7.
[47] Transcript, p. 22, lines 14 – 21.
With further reference to this course, he was asked about whether he had learnt about any strategies for preventing relapse into a pattern of alcohol abuse. He responded with this: ‘So it shows about people – it also give information to people that you can contact and where – and also, like, teach us a lot about how drugs and alcohol can be bad in the – in the long run’.[48]
[48] Transcript, p. 22, lines 23 – 26.
Finally, the Applicant was asked about whether there were any other programs or courses he had completed relating to alcohol use. He responded with the following:
‘When we were in jail, there was this, like, a social worker who used to always come around and we would sit around and he would tell us about things related to drug and alcohol, but I’m not sure if they gave certificate out, because he just – he would just – it’s basically just come up there and whoever want to join will just sit around. They would give, like, tea and stuff, and we – then he would ask questions, and, like, one after one person. So I’ve attended multiple times on this one, but mostly, I just try to always look for – since I’ve been in detention, always try to just – try to find it online by myself and just listening to podcasts and YouTube videos.’[49]
[49] Transcript, p. 22, lines 30 – 39.
The evidence of other witnesses
Mr Tawk Kap is Lead Pastor of the Grace Community Church at Nunawading in Melbourne. He provided both written and oral evidence to the instant hearing. In his written statement, he refers to the support his church will provide the Applicant if returned to the community now:
‘I believe that he now got enough lessons and repented for such action. We the church community will provide the required physical, emotional and spiritual support to him and his family as we have done for the past 6 years should he be granted an opportunity to reunited with his family and the church family once again. We will support him to live a life of dignity and help him restore his life to live a life of respect and useful for him and others as he is now doing the courses of drug, alcohol and violence.’[50]
[50] A3.
Lead Pastor Kap was also cross-examined about the extent of his knowledge of the Applicant’s offending. He respondent with: ‘A little bit. Not much’.[51] He said that he knew about the incident involving the Applicant driving a car where someone had died. He said that he was not aware of the Applicant being convicted of an offence arising from the sexual penetration of a child under 16 years of age:
[51] Transcript, p. 33, line 24.
‘SENIOR MEMBER: Would it shock you or amaze you to know that he has a conviction arising from the sexual penetration of a child under 16 years of age?
LEAD PASTOR KAP: I did not know about this in detail.
SENIOR MEMBER: All right. Now that you ?
LEAD PASTOR KAP: because I was not informed.
SENIOR MEMBER: All right. Now that you know about that, what do you say about his chances of redemption and reform?
LEAD PASTOR KAP: Yes. As a pastor, I will help him in the godly way to be aware of his life and for others and for the safety of everyone.
SENIOR MEMBER: Despite now knowing about the sexual offending against the underaged victim, you still would stand by him and receive him as a parishioner or member of your church?
LEAD PASTOR KAP: Yes, as long as he repent.
SENIOR MEMBER: Right. And?
LEAD PASTOR KAP: Jesus said - - -
SENIOR MEMBER: Yes?
LEAD PASTOR KAP: ---Jesus said, ‘Go and do no more.’ That is the freedom we have, as God towards people.’[52]
[52] Transcript, p. 33, lines 35 – 37; p. 34, lines 1 – 5.
The Applicant’s brother is the abovementioned Robin Mang Tong Lian. He provided both oral and written evidence to the instant hearing. His written statement appears in the material.[53] In this written statement, the following is said about the Applicant’s prospects for rehabilitation and his level of recidivist risk more generally:
‘We firmly believe that he still has a lot of times in his hand to make amendment for his past mistakes and repay the community with a changed behaviour. Lal [the Applicant] has shown that he has the willingness to make amendments to his past troubles and is regretful of his actions. He is also currently enrolled in a course “Drugs, Alcohol and Violence”. We hope that he is given a new chance at life in Australia. Should he be granted another opportunity, our family will fully take responsibility to help him assimilate and integrate to the community and to wider society.’[54]
[53] A4. Note to Reader: this statement appears to be a joint statement attributable to the Applicant’s mother, father, sister as well as this particular witness, being the Applicant’s brother.
[54] A4.
Mr Robin Mang Tong Lian also gave oral evidence to the instant hearing. In evidence in chief, he confirmed the content of his abovementioned statement together with certain other written material before the Tribunal attributable to him, as being true and correct.[55] He was not cross-examined and towards the end of his evidence, I invited him to make any further comments he wished to make in support of his brother/the Applicant. He said this:
‘Not that I want to add anything. I just wanted to reiterate the fact that, you know, my brother, Lal, he’s still cherished and loved by not just our family, our church and community, and we wholeheartedly believe that he’s been given enough time to, you know, to rehabilitate and, you know, given more thought to his actions, and I – you know, we truly believe that he should be given a second chance to be reunited with his family members, his church members and his community members, and then prove that he is worthy. And, you know, he still has a whole lot to give to the wider community as well, and we, you know, we wholeheartedly believe that and we’ll be here to support him throughout the ordeal, not just our family and our church, our church and our church members, and also Chin Community Victoria as well. We are (indistinct) organisation which we’ve been part of since we arrived to Australia, and we will also help Lal, my brother, you know, to rehabilitated and – you know, so that – so that we can help him integrate into the wider society as well and contribute to member of our community.’[56]
[55] See generally, Transcript, p. 29, lines 8 – 45; p. 30, lines 1 – 8.
[56] Transcript, p. 30, lines 39 – 47; p. 31, lines 1 – 7.
Analysis of the evidence around recidivist risk
I make the following comments and findings about the evidence around the Applicant’s recidivist risk:
·the Applicant’s evidence about recidivist risk: he propounds a position of representing a low or very low risk of re-offending for three principal reasons. That contention should be rejected on the basis of none of those reasons now being either credible or sustainable. First, simply because his driver license has been disqualified for 11 years does not remove the risk of him again catastrophically offending while in charge of a motor vehicle. On at least two occasions in the past, he has driven without a license. There is little or nothing to suggest he would not do so again. Second, he says ‘I will seek counselling’ for his issues with alcohol but this evidence is aspirational and points to proposed rehabilitation not actual rehabilitative and clinical treatment he has received and will continue to receive if returned to the community. Third, he talks about having ‘excellent family and community support’ to guide and monitor his behaviour. This now – asserted support did little or nothing to prevent his extremely serious and catastrophic offending in the past;
·the Applicant’s evidence about plans and intentions if returned to the community: he spoke of going to live with his mother and father in Melbourne and of possibly finding remunerative employment at the same workplace that employs his father or, in the alternative, of finding employment ‘with my cousins and stuff who work in, like, constructions or in – somewhere in gardening and also, there’s a farm, farm work’. There is nothing in the material from the Applicant’s father or any of his cousins to corroborate this evidence and there is thus no reliable basis upon which to weigh this evidence with particular reference to the Applicant’s recidivist risk;
·the Applicant’s evidence about possible re-connection with negative peer influences: his evidence on this issue was both vague and unconvincing. He said that it is hard for him to explain or provide an answer in this regard. He said that he has been out of the community for a long time and, as best as I understood his evidence on this point, this span of time made it unlikely re-connect with such negative influences;
·the Applicant’s evidence about engaging with rehabilitation in the community: he spoke of a willingness ‘to do any of the courses…’ and ‘As soon as I get out, … try to look for, like, social worker or something to – and my church pastors, they will try to help me and show me the – guide my through it. This is hardly suggestive of a person with any firm rehabilitative program in which to participate upon a return to the community.
·the extent of rehabilitation: the Applicant conditionally acknowledged that ‘… I may have a drinking problem…’. This drinking issue commenced at an early age when he was 13 or 14 prior to his arrival in Australia. He came here at age 16 and re-commenced drinking on a regular basis from the age of 17 years onwards. While there is a realisation from the Applicant that ‘my whole life related to alcohol, it basically ruined my life’, there is little or nothing before the Tribunal indicative of his predisposition to abuse alcohol being the subject of any clinical diagnosis with a resulting remedial treatment plan to bring those symptoms under some type of acceptable level of management and control. True it may be that he completed an ‘Offender Plan’ in 2019 and that he may have also have engaged in a program for alcohol consumption in Melbourne under the Youth Justice system. I also accept that he has recently completed an online course and received a certificate for its completion bearing the name ‘Drug and Alcohol Abuse 101’. This course involved him ‘writing some essays and reading and multiple choices… stuff like that’. It is not clear, what if any, rehabilitative effect the Applicant may have experienced from these courses. I am unable to take virtually anything from the Applicant’s completion of these courses which now reliably speaks to his level of recidivist risk;
·the best evidence around recidivist risk: as best as I understood the totality of the material, both oral and written, the highest and best evidence around recidivist risk derives from two factors. First, the Applicant’s own evidence that this Applicant has been out of the community for over six years in either prison or immigration detention and that, according to him, he has never consumed alcohol at any time during that period. Second, he repeatedly spoke of an aspiration or intention to engage with rehabilitative treatment upon a return to the community. I will make the following observations about each of these elements:
othe evidence about not consuming alcohol for about six years is that of the Applicant alone. That evidence does not sit well with a relatively recent incident in immigration detention several months ago involving him being in possession of, or otherwise closely associated with, suboxone while in immigration detention. If he is involved in illicit substance abuse of the closed confines of immigration detention, what confidence can this Tribunal have that he would not return to again consuming alcohol in the community which is much more freely available to him in the general community than suboxone is in immigration detention?
ohis apparent intention to engage with rehabilitation in the community is principally aspirational and yet to be realised. My assessment of his recidivist risk is concerned with the here and now. The evidence tells me that (1) he has had a less fulsome engagement with rehabilitation thus far; and (2) his future engagement with rehabilitation is largely undefined and unknown.
·the evidence of other witnesses: the evidence of both Lead Pastor Tawk Kap and the Applicant’s brother should be received with measured caution. Lead Pastor Kap knew nothing of the Applicant’s extremely serious offending involving penetration of a child under 16 years. His evidence went no higher than him facilitating some type of divinely inspired redemption for the Applicant. The evidence of the brother was largely that of the supporting family member who, it must be remembered, was also a family member of the Applicant at the time he committed his extremely serious offending. The brother was helpless to prevent that previous dreadful conduct and the evidence has little or nothing to say about him being any more effect in preventing its future re-commission by this Applicant. Neither of these witnesses have anything of any moment to say about the Applicant’s current level of recidivist risk.
Assessment of recidivist risk

The most critical difficulty with the evidence is the Applicant’s incomplete and less than fulsome engagement with rehabilitation thus far. A similar critical difficulty arises with future rehabilitation if he is returned to the community. I have very significant misgivings about either the Applicant or those around him having the necessary capacity or resolve to oversee, manage and control his engagement with a strictly defined clinical process aimed at urgently addressing his predisposition toward abusing alcohol. The recent incident report involving the Applicant with or near Suboxone is immigration detention is both sobering and concerning for reasons I have outlined.
The evidence convincingly leads me to a state of satisfaction that this Applicant now represents a medium risk of re-offending and that if he were to re-offend, the resulting harm to the Australian community is totally unacceptable. In making this recidivist risk assessment, I am particularly mindful of the provision in the new Direction which stipulates that protection of the Australian community is ‘…the highest priority of the Australian Government.’[57]
[57] Paragraph 8.1(1) of the Direction; See also paragraph 5.2(2) of the Direction.
Sub-paragraph 8.1.2(2)(c)
The Direction also contains a reference to sub-paragraph 8.1.2(2)(c). With reference to this specific sub-paragraph, this matter does not involve a ‘refusal to grant a visa to a
non-citizen’. It involves an application for the ‘revocation’ of a decision refusing to revoke the earlier mandatory cancellation of the Applicant’s Visa. This specific paragraph is not relevant to the determination of this application.
Conclusion for Primary Consideration 1:
With reference to the weight attributable to this Primary Consideration 1:
(a)I have found the nature and seriousness of the Applicant’s conduct to date has been of a ‘extremely serious’ nature;
(b)I have had regard to the totality of the Applicant’s offending history. I am satisfied that in the event of its recommission, the nature of the harm it would cumulatively represent to either an individual victim or the Australian community more generally would result in (1) extremely serious psychological harm; (2) extremely serious physical harm; and (3) catastrophic harm to one of its victims.
(c)I will also find, pursuant to paragraph 8.1.2(1) of the Direction, that the harm resulting from the Applicant’s recommission of offending is so serious that any risk of its recommission would be totally unacceptable to the Australian community. This is especially the case with regard to his offending convicted as ‘cause harm/death by dangerous driving – aggravated offence(s) and person sexually penetrate child under 16 years’.
(d)I have found that this Applicant now represents a medium level of recidivist risk of committing further criminal offences if returned to the Australian community whose safety is regarded by the Direction as ‘…the highest priority of the Australian Government’.[58]
[58] Paragraph 8.1(1) of the Direction.
My analysis of the material leads me to a finding that this Primary Consideration 1 is of a ‘very heavy’, level of weight towards this Tribunal affirming the Decision Under Review.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
The material does not contain any evidence about commission of an act of family violence by this Applicant. This Primary Consideration 2 should be put to one side and be rendered neutral for present purposes.
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
Paragraph 8.3(1) of the Direction states:
(1) Decision-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.
The subsequent paragraph 8.3(2) also stipulates that in the assessment of any other ties that a non-citizen may have in Australia, the decision-maker must have regard to:
(a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child , noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community during that time.
(b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
Paragraph 8.3(1): Consideration of the impact of this decision on the Applicant’s immediate family members
It is first necessary to identity the Applicant’s immediate family members in Australia who are citizens, permanent residents or people who have a right to remain in Australia indefinitely. His immediate family members in Australia comprise:
·his mother, Ms Ngun Lian Tlem;
·his father, Mr Biak Nawl;
·his abovementioned brother, Mr Robin Mang Thawm Lian; and
·his sister, Ms Ngun Sui Cin Mawi.
The Tribunal has before it the abovementioned joint statement of the Applicant’s family made on 11 July 2024.[59] There is little to displace a finding that the Applicant’s family are – in a personal, loving and devotional sense – ‘close’ to him and that they will receive him into their care if he returns to the community. The parents will accommodate him. The brother will try his best to oversee his rehabilitation and re-integration into the community. I note (and find), with respect, that the Applicant’s immediate family members lead responsible lives in the community and that the Applicant is, without question, the outlier of the family in terms of an offending history. Both of his parents are long-term factory workers, his brother works as a Health Information Manager and his sister works as a nurse. I have no reason to disbelieve or disregard the families statement made on 11 July 2024 now before me in the material.[60]
[59] A4.
[60] A4.
I am satisfied that the Applicant has ties to his abovementioned four family members in in Australia. While the extent of those ties in the past may have not prevented his extremely serious offending, his family have remained, and want to in future remain, in his life despite his record of extremely serious offending in this country. Having regard to the state of the evidence around this sub-paragraph 8.3(1) with regard to the Applicant’s ties with his immediate family members in Australia, I am satisfied that these four people I have identified as referrable to this sub-paragraph 8.3(1) would be adversely impacted in the event of the Applicant’s removal to Myanmar.
This finding is subject to the caveat that for their interests to be taken into account, each of these four people must be Australian citizens, Australian permanent residents or persons who have a right to remain in Australia indefinitely. I will make the assumption that these four people fall into at least one of the qualifying categories contained in paragraph 8.3(1) of the Direction. I am of the view that the Applicant’s ties with these four immediate members are genuine and that these ties facilitate the allocation of a strong level of weight in favour of the Applicant pursuant to this Primary Consideration 3.
Paragraph 8.3(2)(b): Strength, nature and duration of ties with family or social links
This paragraph looks at the strength, nature and duration of the extent of any ties the Applicant may have with (1) other family members; or (2) social contacts/links in Australia. The limiting proviso on this inquiry is that these two categories of people with whom the Applicant may have ties must be Australian citizens, Australian permanent residents and/or people who have a right to remain here indefinitely. As best as I understood the material, there is only two such people falling within either of the two categories referrable to this paragraph 8.3(2)(b) of the Direction. They are:
·Piang Lilian: is the President of the Chin Community Victoria Inc. Piang Lilian’s written statement appears in the material.[61] This person did not give oral evidence to the instant hearing. In this written statement, the Applicant is identified as ‘… a member of our community’.[62] This statement also records that the Applicant’s family ‘… are active members of Chin Community Victoria Inc’.[63] As mentioned, Piang Lilian did not give oral evidence and this evidence was not subjected to any testing in cross examination;
·Lead Pastor Tawk Kap: I have already referred to the evidence of Lead Pastor Kap earlier in these reasons. He identifies the Applicant as a member of his church since the Applicant’s arrival in Australia. His written statement[64] is cast more in terms of being on behalf of his congregation than in terms of any personal or directly social connection Lead Pastor Kap may have with the Applicant.
[61] A2.
[62] A2.
[63] A2.
[64] A3.
I have had regard to the state of the evidence around this sub-paragraph 8.3(2)(b) with regard to the Applicant’s ties with Piang Lilian and Lead Pastor Kap. I will find that both of these people are persons referable to this sub-paragraph 8.3(2)(b), and that they be adversely impacted in the event of the Applicant’s removal to Myanmar. This finding is conditional upon both of these people being either Australian citizens, Australian permanent residents or persons who have a right to remain in Australia indefinitely.
I am of the view that the Applicant’s ties with these two people are genuine and that his ties to these people facilitate the allocation of a moderately strong level of weight in favour of the Applicant pursuant to this Primary Consideration 3.
Paragraph 8.3(2)(a): Additional factors to take into account
This component of Primary Consideration 3 requires me to look at how long the Applicant has resided in Australia taking into account the following factors:
(i)whether the Applicant arrived here as a young child?[65] The Applicant was born in Myanmar on 5 October 1999. He arrived here in June 2015 as a 15-year-old. This component of paragraph 8.3(2) does not assist the Applicant because he did not arrive here as a young child;
(ii)whether the Applicant began offending soon after arriving here?[66] The Applicant arrived here in June 2015. He first involvement with the legal process[67] occurred in November 2018. A period of more than three years after his arrival is not ‘soon after arriving’ here. Thus, the weight allocable to the Applicant for this Primary Consideration 3 cannot be impugned on the basis of him offending soon after arriving here;
(iii)the time the Applicant has spent contributing positively to the Australian community during his time here.[68] The Applicant has an albeit limited work history with remunerative employment with Australia primarily in manual-type work involving gardening, farm work and factory work. He has had a cultural involvement with his own ethnic, cultural and religious community. He has had a connection with the broader community via his membership of his local soccer club. This component of paragraph 8.3(2) affords a strong level of weight towards a favourable finding about the strength of the Applicant’s ties to Australia.
[65] Paragraph 8.3(2)(a) of the Direction.
[66] Paragraph 8.3(2)(a)(i) of the Direction.
[67] That is, that I can take into account for present purposes.
[68] Paragraph 8.3(2)(a)(ii) of the Direction.
Accordingly, I am of the view (and I find) that based on my analysis of the evidence around subparagraphs 8.3(2)(a)(i)-(iii) of the Direction, the combined effect of my findings about these sub-paragraphs facilitates a strong level of weight in favour the Applicant for this Primary Consideration 3.
Overall, the weightings I have allocated to each component of this paragraph 8.3 are as follows:
·paragraph 8.3(1) (immediate family members) – I have allocated a strong level of weight in favour of the Applicant pursuant to his ties with his four immediate family members in Australia;
·paragraph 8.3(2)(b) (social ties) – I have allocated a moderately strong level of weight in favour of the Applicant pursuant to the ties he has with Piang Lilian and Lead Pastor Kap.
·paragraph 8.3(2)(a)(i) does not assist the Applicant and is neutral;
·paragraph 8.3(2)(a)(ii) does not impugn the overall weight allocable weight to the Applicant for this Primary Consideration 3 due to him not having offended soon after arriving here; and
·paragraph 8.3(2)(iii) – I have allocated strong weight in favour of the Applicant pursuant to his modest involvement in remunerative employment in this country and his community contributions.
Conclusion: Primary Consideration 3
I have referred to the three relevant components[69] of this Primary Consideration 3. I am of the view, after having analysed the evidence relevant to each of those three components to which the evidence applies, that the totality of that evidence points to a strong level of weight being allocable to this Primary Consideration 3 in favour of a finding that this Tribunal should restore the Applicant’s Visa status to remain here.
[69] That is, the first component pursuant to paragraph 8.3(1)(ties to immediate family members); the second component pursuant to paragraph 8.3(2)(b)(ties to extended family and social links) and the third component being the tempering or conditionalizing elements appearing at paragraph 8.3(2)(a)(i)–-(iii).
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
This Primary Consideration requires a decision-maker to consider what impact a decision to refuse or not revoke cancellation of a visa will have on children who are and will continue to be under the age of 18 years of age at the time of the decision.[70] The Direction further requires that the best interests of each child must be considered individually if there are more than one minor child/ren identified.
[70] Paragraphs 8.4(1) and 8.4(2) of the Direction.
As best as I understood the totality of the material before me, there is no evidence about the best interests of any minor children being affected by the removal of the Applicant to Myanmar. This Primary Consideration 4 should be put to one side and rendered neutral for present purposes.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[71] The Direction further explains:
‘This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated [in paragraph 8.5(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case.’[72]
[71] Paragraph 8.5(3) of the Direction.
[72] Paragraph 8.5(4) of the Direction. Paragraph 8.5(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.
With reference to the propositions in paragraph 8.5(1) of the Direction, this sub-paragraph is expressed thus:
1The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
This Applicant has breached the Australian community’s expectations by his record of criminal offending in this country which is evidenced by a number of extremely serious breaches of the Australian criminal law. Therefore, the Australian community, ‘as a norm’ expects the Australian Government not to allow him to remain in Australia.
The Direction also states that visa cancellation or refusal, or non-revocation of a mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:[73]
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
[73] Paragraph 8.5(2) of the Direction.
The Applicant’s criminal history contains a conviction that clearly falls within the auspices of the abovementioned sub-paragraph 8.5(2)(c)[74]. The commission of this offence (falling within the auspices of sub-paragraph 8.5(2)(c)) means the Australian community expects the Australian Government can and should refuse to set aside the mandatory cancellation of his Visa.
[74] Commission of serious crimes against a child of a violent or sexual nature.
The remaining question is whether there are any factors which modify the Australian community’s expectations. This question is informed by the principles in paragraphs 5.2(5), (6) and (7) of the Direction. In summary these are:
(a)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa (paragraph 5.2(5));
(b)the Australian community has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time (paragraph 5.2(5));
(c)Australia may afford a higher level of tolerance towards 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 (paragraph 5.2(6));
(d)the nature of a non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify a visa outcome that is not adverse to the non-citizen (paragraph 5.2(7)); and
(e)the inherent nature of the non-citizen’s conduct is so serious that it displaces even strong countervailing factors militating in favour of a positive visa outcome for a non-citizen even in circumstances where the non-citizen does not pose a measurable risk of harm to the Australian community (paragraph 5.2(8)).
In relation to sub-paragraph (a) of the immediately preceding paragraph [98], the term, ‘limited stay visa’ is not defined in the Act. Here, the Applicant in this case held a Class XB Subclass 202 Global Special Humanitarian visa until it was cancelled on 20 February 2019. This Visa allows the visa holder to ‘travel’ and ‘enter’ Australia within five years of it being granted.[75]As the Visa does not specify a limited amount of time after which the Applicant was required to depart from Australia, it cannot be classified as a limited stay visa.[76] Consequently, this sub-paragraph (a) is not applicable to the Applicant.
[75] Regulation 202.511 of the Migration Regulations 1994 (Cth).
[76]Walker v Minister for Home Affairs (2020) 171 ALD 37 [28]-[29].

In relation to sub-paragraph (b) of the abovementioned paragraph [98], the Applicant has spent approximately nine years in this country with six of them having been spent either in prison or immigration detention. He came here as a 15-year-old and is currently 24 years of age. He has spent about 37% of his life in this country. The Applicant has an albeit limited work history in Australia. He has made contributions to his local ethnic and broader communities. He has not fathered any biological children in Australia and is not involved in the care of any stepchild/ren in Australia. His spending six of his nine years here in prison and immigration detention means his participation in, and contribution to, the Australian community during his time here can be safely found to have been ‘short’. Therefore, the Australian community’s tolerance is further lowered by this part of the principles in 5.2(5) of the Direction.
In relation to sub-paragraph(c) of the abovementioned paragraph [98], I repeat that the Applicant has, since his arrival in 2015, spent about 37% of his life in Australia and that he has not been in Australia from a very young age. This means the Australian community may not afford a higher level of tolerance of criminal or other serious conduct by this Applicant.
In relation to sub-paragraph (d) of the abovementioned paragraph [98], I am not of the view that the balancing exercise between (on the one hand) the harm that would be caused by the Applicant re-committing his criminal offending of the same type and magnitude already committed and (on the other hand), whatever countervailing considerations may work in his favour, is necessarily a principle referable to the community’s expectations for present purposes. This is because I am of the view that the extremely serious nature of his offending and its resulting catastrophic and other harm thus far has been of such an extremely serious magnitude as to dispel any applicable countervailing considerations.
In relation to sub-paragraph (e) of the abovementioned paragraph [98], I am of the view that the Applicant’s conduct convicted on 30 November 2018[77] and 10 September 2021[78] is so extremely serious such as to displace any strong countervailing considerations militating in favour of a positive visa outcome. I have found that the Applicant represents a medium risk of re-offending and that if he were to re-offend, the resulting harm to the Australian community is totally unacceptable. This means that the balance of the abovementioned sub-paragraph (e)[79] does not need ventilation here.
[77] For ‘Cause harm by dangerous driving – aggravated offence; and Cause death by dangerous driving – aggravated offence’.
[78] For ‘Person sexually penetrate child under 16’.
[79] That is, about whether the Applicant does not pose a measurable risk of causing physical harm to the Australian community.
Having regard to the above discussion around sub-paragraphs (a)–(e) (inclusive) referenced in paragraph [98] of these Reasons, I am of the view that the Australian community’s expectations are not modified such that the community does not have a higher than usual tolerance of criminal conduct by the Applicant. Because of the extremely serious nature of the totality of his offending, this Primary Consideration 5 compels a finding that the community expects the Australian Government can and should refuse to set aside the mandatory cancellation of the Applicant’s Visa. I so find.
Conclusion: Primary Consideration 5
Primary Consideration 5 confers a very heavy level of weight in favour of this Tribunal affirming the Decision Under Review.
OTHER CONSIDERATIONS
Other Consideration (a): Legal consequences of the decision
An adverse outcome for the Applicant in the instant application results in the specific consequence of him being irreversibly excluded from re-entering Australia. There are, for present purposes, two further resulting consequences arising from this irreversible exclusion. First, this irreversible exclusion from re-entering Australia is an issue that does not activate the terms of paragraph 9.1 of the Direction.
If unsuccessful in the instant proceeding, section 501E of the Act prohibits the Applicant from making an application for another other visa, except for a protection visa.[80] To whatever extent the Applicant may claim that his removal to Myanmar would infringe Australia’s refoulement obligations, he will have an opportunity to ventilate those claims in the process of his application for a protection visa. For present purposes, I am thus not required to assess whether the Applicant’s removal engages Australia’s non-refoulement obligations.[81]
[80] See section 501E(2)(a) of the Act which allows the Applicant to apply for a protection visa.
[81] M1/2021 v Minister for Home Affairs (2022) 400 ALR 417 [28]-[30].
Second, I note that the irreversible exclusion will likely give rise to additional personal consequences for the Applicant. Those consequences include (1) him experiencing emotional and psychological harm which is a factor that I will consider in the section of these Reasons relating to impediments the Applicant may face upon a forced return to Myanmar; and (2) his separation from immediate family and social ties he has to this country which is a factor I have already considered pursuant to paragraph 8.3 of the Direction.
I am therefore of the view that it would be unsafe to allocate any weight to any legal consequence of an adverse decision for the Applicant in the instant Hearing on the present state of evidence. Only neutral weight can be allocated to this Other Consideration (a).
Other Consideration (b): Extent of impediments if removed
What does the evidence say?
In his PCF, the Applicant spoke of his concerns about a return to Myanmar. He says: ‘my return will pose a significant danger to my life. I would likely be emprisoned [sic] and receive harsh treatment by Government authorities. My major fears are: *loss of relationship with my family & uncertainty of future life; * safety of myself; * treatment by authorities on my return; * being emprisoned [sic] on my return and harshly treated’.[82]
[82] R1, p. 52.
Further in his PCF, he spoke of other problems he would face if he had to return to Myanmar. He itemised those problems in these terms: ‘Financial concerns of how to support myself; Housing. Where I would live; no one to support or relate to’.[83] In the ‘Reasons for the application’ section of the written application spawning the instant hearing, the Applicant said ‘… all my families [sic] are in Australia, Melbourne’.[84]
[83] R1, p. 52.
[84] R1, p.146.
During cross-examination, the Applicant was taken to scenario involving being return to Myanmar. As best as I understood his oral evidence, he does speak the local language, Burmese, and he may have some family members or a relative in Myanmar that he could contact for at least some initial support in terms of re-settling there:
‘MR ELLISON: If you were instead sent back to Myanmar – do you speak Burmese?
APPLICANT: Yes, sir.
MR ELLISON: If you were sent to Myanmar, where would you live?
APPLICANT: I’m not sure where I live, because the old village, there’s not really anyone left. Because of the civil war happening right now, everyone left, most people, and most of my relative already in different countries, and I’m not really sure. I think there’s probably some family or relative in my country that can – that I can contact with, but as of this moment, I’m not – I’m not sure.
MR ELLISON: Ok. But you said there are some relatives you could contact there?
APPLICANT: I think there would be, because it’s a big community, and I think
MR ELLISON: Okay. All right…’[85]
[85] Transcript p. 27, lines 13-26.
Factors to be taken into account
Paragraph 9.2 of the Direction directs a decision-maker to take into account 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 any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
Paragraph 9.2(1)(a): the Applicant is 24 years of age and does not seem to be suffering from any physical health or mental health issue. His PCF is silent about any such issue. I am satisfied that while the Applicant’s age and his state of physical and mental health will not impede his return and resettlement in Myanmar.
Paragraph 9.2(1)(b): the Applicant lived the first 15 years of his life in Myanmar and would have completed some of his schooling and early adulthood there. He was forthright enough to tell the instant hearing that he did speak Burmese. The evidence contains at least several references to his participation in the cultural life of his local ethnic community in Melbourne. I am satisfied there are no substantive language or cultural barriers impeding the Applicant’s return and resettlement in Myanmar.
Paragraph 9.2(1)(c): this sub-paragraph looks for any social, medical and/or economic support available to the Applicant in Myanmar. First, with reference to any medical support the Applicant may need to source in Myanmar for any healthcare issue, he will have available to him the same level of healthcare as would be available to other citizens of that country. To the extent he may confront an impediment arising from any difference in the nature and quality of publicly available healthcare between Myanmar and Australia, such an impediment would not be insurmountable. I will find that this relative difference in available healthcare is a moderate impediment to his return and re-settlement in Myanmar.
Second, in terms of economic support available to the Applicant in Myanmar, it should be noted that he has compiled an albeit limited history of manual – type work in Australia and there seems little or no impediment to him finding a similar sort of work in Myanmar. To the extent he may require the Australian equivalent of social security or Centrelink assistance in Myanmar while initially settling there, he will have available to him such government benefits as are available to other citizens of Myanmar. It can be assumed that (1) the Applicant may experience some difficulty in initially sourcing remunerative employment in Myanmar; and (2) there may be a difference in the levels of government benefits available to in Myanmar compared to what he would receive in Australia. On the basis of these two assumptions, I will therefore find that he will experience a moderate economic impediment upon a return to Myanmar but that such impediment is not insurmountable.
Third, I will now look at whether a lack of social support in Myanmar now presents as an impediment to his return and re-settlement there. The Applicant spent the first 15 years of his life in Myanmar. It is more likely than not that during those 15 years, he will surely have established a friendship or other relationship with a person or persons in that country. His oral evidence indicated that he would have some relatives in Myanmar and, if so, it is more likely than not that he would be able to make contact with someone in that country for support and guidance while resettling there. Be that as it may, I accept that a relative lack of social support in Myanmar will be a moderate impediment for the Applicant but not an insurmountable one.
Findings about impediments
My findings about impediments are as follows:
·the Applicant’s age and state of physical health and mental health are not impediments to his return and resettlement in Myanmar;
·there are no substantial language or cultural barriers impeding the Applicant’s return and resettlement in Myanmar;
·the Applicant is likely to experience a moderate impediment in the form of the comparative difference between publicly available healthcare between Myanmar and Australia but that such impediment is not insurmountable;
·in terms of economic support in Myanmar, the Applicant may experience a moderate initial impediment upon a return to Myanmar but that such impediment is not insurmountable impediment in terms of his return and re-settlement in that country; and
·in terms of social support in Myanmar, the Applicant may experience an initial moderate impediment upon a return to Myanmar but that such impediment is not insurmountable in terms of his return and re-settlement in that country.
Given my findings about each of the three sub-paragraphs to this paragraph 9.2 of the Direction, I am of the view that this Other Consideration (b) confers, a moderate level of weight in favour of this Tribunal exercising the power to revoke the mandatory cancellation of the Applicant’s Visa.
Other Consideration (c): Impact on Australian business interests
As best as I understood the material, there is no evidence before me that this Other Consideration (c) has any application to the instant facts. I will put this Other Consideration (c) to one side and allocate neutral weight to it for present purposes.
Findings: Other Considerations
The allocation of weight to the Other Considerations in the present matter can be summarised as follows:
·legal consequences of the decision: is of neutral weight;
·extent of impediments if removed: is of moderate weight in favour of revocation; and
·impact on Australian business interests: is of neutral weight.
CONCLUSION
Under section 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the power to revoke the mandatory cancellation of the Applicant’s Visa: either the Applicant must be found to pass the character test; and if not, I must be satisfied there is another reason, pursuant to the Direction, to revoke the cancellation decision. As noted (and found) previously in these Reasons, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the power afforded by section 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the Applicant’s Visa, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1: is of a very heavy, level of weight in favour of affirming the Decision Under Review;
·Primary Consideration 2: is of neutral weight;
·Primary Consideration 3: is of a strong level of weight in favour of setting aside the Decision Under Review;
·Primary Consideration 4: is of neutral weight;
·Primary Consideration 5: is of a very heavy level of weight in favour of affirming the Decision Under Review.
I have outlined the weight attributable to each of the Other Considerations. I am of the view (and I find) that the combined respective weights I have allocated to Primary Consideration 3 plus Other Consideration (b) are outweighed by the combined respective very heavy weights I have allocated to Primary Considerations 1 and 5.
A holistic application of the considerations in the Direction therefore militates in favour of this Tribunal finding there is not another reason to revoke the mandatory cancellation of the Applicant’s Visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), this Tribunal affirms the decision made by a delegate of the Respondent on 16 May 2022 to not revoke the mandatory cancellation of the Applicant’s Global Special Humanitarian (Class XB) (Subclass 202) visa.

I certify that the preceding 127 (one hundred and twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member T Tavoularis

..............[SGD]................
Associate
Dated: 2 October 2024

Date of hearing: 27 August 2024

Representation for the Applicant: Self-represented

Solicitor for the Respondent: Mr Tom Ellison (Senior Lawyer)

Australian Government Solicitor
ANNEXURE A

EXHIBIT

DESCRIPTION OF EVIDENCE

DATE OF DOCUMENT

DATE RECEIVED

RESPONDENT SUBMISSIONS

R1

Remittal bundle

Various

24 June 2024

R2

Statement of Facts, Issues and Contentions (‘SFIC’)

2 August 2024

2 August 2024

R3

Tender bundle

Various

2 August 2024

R4

Incident report from immigration detention centre

Various

26 August 2024

APPLICANT SUBMISSIONS

A1

Drug and Alcohol course completion certificate

21 July 2024

23 July 2024

A2

Letter of support from Piang Lilian (President. Chin Community Victoria Inc)

14 July 2024

23 July 2024

A3

Letter of support from Tawk Kap (Pastor- Grace Community Church, Melbourne)

11 July 2024

23 July 2024

A4

Combined letter of support from family members

11 July 2024

23 July 2024

[2024] AATA 3504

2 October 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Natural Justice

Date of hearing:	27 August 2024
Representation for the Applicant:	Self-represented
Solicitor for the Respondent:	Mr Tom Ellison (Senior Lawyer)
Australian Government Solicitor

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
RESPONDENT SUBMISSIONS
R1	Remittal bundle	Various	24 June 2024
R2	Statement of Facts, Issues and Contentions (‘SFIC’)	2 August 2024	2 August 2024
R3	Tender bundle	Various	2 August 2024
R4	Incident report from immigration detention centre	Various	26 August 2024
APPLICANT SUBMISSIONS
A1	Drug and Alcohol course completion certificate	21 July 2024	23 July 2024
A2	Letter of support from Piang Lilian (President. Chin Community Victoria Inc)	14 July 2024	23 July 2024
A3	Letter of support from Tawk Kap (Pastor- Grace Community Church, Melbourne)	11 July 2024	23 July 2024
A4	Combined letter of support from family members	11 July 2024	23 July 2024