LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs - [2020] AATA 3356

LJTZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3356 (27 July 2020)
Division:GENERAL DIVISION
File Number(s): 2020/2717
Re:LJTZ
APPLICANT

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

DECISION
Tribunal:Senior Member Dr N A Manetta
Date:27 July 2020
Date of written reasons: 31 August.2020
Place:Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review and substitutes a decision that the mandatory cancellation of the Applicant’s visa be revoked.
..........[sgnd]..............................................................
Senior Member Dr N A Manetta
Catchwords
Migration – failure of character test - primary considerations – protection of Australian community – best interests of minor children – expectations of Australian community – non refoulement obligations – Tribunal revokes mandatory cancellation of visa.
Legislation
Migration Act 1958
Cases
Ali v Minister for Home Affairs [2020] FCAFC 109
FYBR v. Minister for Home Affairs [2019] FCAFC 185
REASONS FOR DECISION
Senior Member N A Manetta
31 August 2020

After I delivered my decision and oral reasons, I received a request for written reasons, which I now publish.
This is an application by “LJTZ” seeking a review of the decision of the respondent’s delegate dated 4 May 2020 in which the delegate decided not to revoke the mandatory cancellation of the applicant’s visa. The visa had earlier been cancelled under section 501(3A) of the Migration Act 1958 (“the Act”). A delegate cancelled the visa mandatorily because the applicant had committed a serious offence for which he received a sentence of imprisonment of at least 12 months and because he was required to serve at least a part of that sentence full-time in jail.
The respondent’s delegate’s decision implied that the applicant should now be deported to Burundi, his country of birth. In reaching his or her decision, the delegate applied “Direction 79”, issued under section 499 of the Act. Hearing the matter afresh on the evidence before me, I must also apply the Direction. I must decide on the merits whether the applicant’s visa should remain cancelled or whether it should be reinstated. In reaching my decision, I need not find any error in the delegate’s approach before setting it aside; equally, despite an error by the delegate, I should affirm the decision under review if that result is the correct or preferable decision on the evidence before me. That is, my consideration of the application involves a de novo hearing on the merits.
I should state immediately that there is no evidence before me that the applicant could be deported to a country other than Burundi. Furthermore, contrary to the respondent’s submission, I do not accept that I should attach any weight in this case to the Minister’s power in section 195A of the Act to grant the applicant a visa in the public interest. This is a personal power: the Minister cannot be legally compelled by the applicant to consider exercising the power: see subsection (4). There is no evidence before me to suggest the Minister is actively considering the exercise of this power in the applicant’s favour.
STATEMENT OF CONCLUSION
I have decided to set aside the decision under review and to revoke the mandatory cancellation of the applicant’s visa. I shall explain my reasons for this conclusion. Before doing so, I set out the background facts.
BACKGROUND FACTS
The applicant gave evidence about his background that I accept for the most part. The applicant was born in Burundi, Africa, at the end of 1987, and at the time of the hearing before me, he was 32 years of age.
The applicant had many siblings. In the extreme violence that occurred in Burundi when he was a boy, the applicant lost his father and many of his siblings. The father and the applicant’s sisters were, in fact, murdered in the applicant’s presence. The applicant indicated that his mother, his two younger brothers, and he all became refugees in neighbouring Tanzania. The written material in evidence before me suggests another brother accompanied them to Tanzania, but he apparently disappeared in the refugee camp and is presumed to have died there.
The applicant came to Australia, he said, in 2005 at about the age of 17. He entered on a humanitarian visa with his mother and two younger brothers, “P” and “J”. They settled in Darwin in the Northern Territory. The applicant first went to school there to learn English, but, unfortunately, he failed to make any real progress in the language. At the hearing before me, the applicant indicated that he has some understanding of written English but only at an elementary level. His command of spoken English is rudimentary: his evidence was given through an interpreter.
Having left school, the applicant went to work on a farm picking fruit. The job was full-time but seasonal only. The applicant found it difficult to secure any other employment through “job network” companies because of his limited English. At the end of 2006 or in early 2007, so far as he remembers, the applicant came to Adelaide to visit a friend. He liked Adelaide and stayed. On this occasion he had come with his family, and they decided to set up home in Adelaide. The applicant first lived in Kilburn and then moved to Salisbury. Once again, the language barrier that he had earlier experienced in Darwin prevented him from finding good regular work in Adelaide. He did find work on a farm in Virginia full-time but the job did not last long.
The applicant decided to attend a TAFE college, but he found it a challenge. He left the college and struggled to find work. He was supported by Centrelink unemployment benefits. He has had no regular work since 2008.
So far as the applicant’s personal life is concerned, I note that he met his ex-partner in 2007. She had children from an earlier relationship. At the time they were first introduced, he was living in Adelaide; she, in Perth. They began to live together when she moved to Adelaide. They first settled in Arndale. They planned to start a family, and in January 2007 the applicant’s partner fell pregnant. The relationship gave the applicant two children of his own. The first child was born in 2007 and the second in 2012 according to the applicant’s evidence.
In 2013 the applicant separated from his partner. In his evidence to me, the applicant indicated that he had started to drink excessively. He had always drunk, he said, but in about 2011 or 2012, he said, his drinking escalated significantly. He said that at that time he did not have good, morally responsible friends, and they led him astray.
The applicant referred in his evidence to the ongoing stress he continued to suffer as a result of witnessing the murder of family members in Burundi. He said he was not able to talk to his family about it. He also said the experience had traumatised him, and indeed the applicant has been diagnosed with a post-traumatic stress disorder. He feels that this led him to drink and to behave inappropriately.
I accept the applicant’s evidence in part (in so far as it refers to an increasing problem with alcohol), but I am not persuaded on the evidence before me that the violence the applicant has displayed in Australia has been caused by the distressing circumstances of his life in Burundi.
CRIMINAL OFFENDING
I turn now to describe the applicant’s criminal offending. His offending is set out in the “G” documents, which were tendered as Exhibit R1.[1] I shall refer to some only of the offending, although I have considered it all.
[1] Ex R1, pp 52-53.
The applicant has a conviction in relation to domestic violence. He said he had been fighting with his partner and was drunk at the time. His partner had told him that she was unhappy about his drinking and he started to fight with her, he said. It would appear from the applicant’s criminal record that he did not receive custodial sentences in relation to this violence, but it occurred more than once in the relationship. The applicant was clear that he had had a difficult relationship with his former partner and that violence was a feature of that relationship.
I turn now to describe two very serious offences. The first occurred in 2012. In this first offence, the applicant and his partner lured a man to a house where he was set upon by the applicant and two other men who were living at the premises. The victim was threatened severely (including with a knife) and subjected to physical assaults that were particularly frightening. He gave up his bank card and associated PIN. These were then used to withdraw money unlawfully from his account. The more serious violence suffered by the victim was inflicted with the applicant’s encouragement according to the sentencing judge,[2] and I accept this view of the matter. The offending was described by the sentencing judge as having “traumatised”[3] the victim, and the judge referred specifically to violent “stand-over behaviour” being particularly serious because of its ongoing effect upon victims.[4] The attack was described as a pre-planned one upon “a vulnerable person of limited means designed to cause him embarrassment in his own community”.[5] The offence carried a maximum term of life imprisonment. The applicant was sentenced in 2014 to four years’ imprisonment with a non-parole period of 20 months.
[2] Ibid, at pp 54-61.
[3] Ibid, at p 56.
[4] Ibid, at p 57.
[5] Ibid.
The applicant was on bail awaiting trial in relation to this offence when he committed a further offence.[6] This offence involved the applicant and his two younger brothers. In September 2013, the applicant, his brothers (“P” and “J”), and P’s partner were all at premises where there had been a great deal of drinking. The applicant’s mother gave evidence, which I accept, that P’s partner was unable or unwilling to look after her child. The child was being supervised instead by the applicant’s mother. The applicant’s mother eventually brought the child back. The applicant gave evidence, which I accept, that an argument ensued concerning P’s partner’s apparent failure to look after her own child. The argument spilled out onto the street.
[6] The circumstances of the offence are set out in the sentencing remarks: see Ex R1, at pp 63ff.
P’s partner was apparently drunk, and the applicant gave evidence, which I accept, that he and his brothers had also drunk a lot that day. The three brothers, including the applicant, assaulted her. It is of concern that the child was apparently still very young and was being carried on P’s partner’s back at the time of the assault. The brothers also assaulted a neighbour who had sought to intervene. All three attacked him, punching and kicking him, and twisting his testicles. This conduct amounted to an aggravated assault causing harm to the neighbour, and the offence was found to have been committed with intent to cause harm.
The police were called and two officers arrived. They knocked on the front door and were savagely set upon by the three brothers. The applicant was convicted in this regard of an aggravated assault causing harm to a probationary constable with intent to cause him harm. The maximum penalty for this offence is 13 years. I note that the constable was repeatedly punched in the face by the applicant, and had his arm bitten and his testicles twisted. In addition, the applicant attempted to wrest the constable’s revolver from him. As a result of the assault, the constable suffered much anxiety as did his wife, and the attacks affected both officers’ relationships with their partners.
There is a reference in the sentencing judge’s remarks to the applicant’s flashbacks to the violence he had witnessed in Burundi.[7] The judge also referred to the applicant’s post-traumatic stress disorder and noted that it had not been treated for some 20 years.[8] As a result of an early guilty plea and a credit of six months and 18 days, the applicant was sentenced to jail for three years, five months, and twelve days. This term was to be served cumulatively upon the sentence then being served by the applicant. The non-parole period was extended to five years.
[7] Ibid, at p 66.
[8] Ibid.
VISA CANCELLATION
On 18 April 2018, the applicant’s visa was cancelled mandatorily whilst he was in Port Augusta prison. The applicant applied for its reinstatement. The applicant did not dispute that he failed the so-called “character test” in the Act in that he had been sentenced to a term of imprisonment of at least twelve months’ duration and was serving part of that sentence full-time in a South Australian jail at the time of the visa cancellation.
The applicant maintained, however, that there was, to use the language of the Act, “another reason” for the cancellation to be revoked; that is “a reason” other than an error in applying the character test. In the event, the delegate rejected that submission.
DIRECTION 79
I now turn to apply Direction 79. The Direction consists of a preamble and Parts A, B, C. Of these parts, Part C is relevant and it identifies the considerations that I should take into account in determining whether to exercise the discretion to revoke the mandatory cancellation of the applicant’s visa. The Preamble makes it clear that where the discretion to consider revocation is enlivened, the decision-maker must consider the specific circumstances of the case.
The Preamble refers to the Government’s commitment to protecting the Australian community from harm as a result of criminal activity or other serious conduct by “non-citizens”. The principles listed in paragraph 6.3 are of critical importance in furthering the objective of protecting the community. They reflect community values and standards with respect to determining whether the risk “non-citizens” pose is unacceptable.
The principles in question record that Australia has a sovereign right to determine whether non-citizens who pose a character concern should remain in Australia. Remaining in Australia is a privilege Australia confers on non-citizens in the expectation that they will remain law-abiding and will respect important institutions such as Australia’s law-enforcement framework and will not cause or threaten harm to individuals or the Australian community. It is recorded that the Australian community expects that visas will be cancelled by the Government if non-citizens commit serious crimes in Australia. It is also recorded that non-citizens who have committed a serious crime should generally expect to forfeit the privilege of remaining in Australia. In some circumstances, criminal offending and the harm that would be caused if it were to be repeated may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances even other strong countervailing considerations may be insufficient to justify not cancelling the visa. In addition, Australia has a low tolerance of any criminal conduct by people who have been participating in the Australian community for only a short period of time.
In exercising the discretion, I must follow the rules and guidelines set out in Direction 79. Information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than other considerations.
I turn now to Part C which is the relevant part. There are three primary considerations mentioned in Part C that I must consider; first, protection of the Australian community from criminal or other serious conduct; secondly, the best interests of minor children in Australia; and, thirdly, the expectations of the Australian community.
Paragraph 13.1 repeats largely what I have already recited in respect of the importance the direction places upon the protection of the Australian community. I must have regard to the principle that the Government is actively committed to protecting the Australian community from harm. The mandatory cancellation of the applicant’s visa in this case is consistent with this principle because serious offenders should remain in detention while their immigration status is resolved. I am required by Direction 79 to have regard to the nature and seriousness of the non-citizen’s conduct to date. I must also have regard to the risks to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Paragraph 13.1.1 sets out a number of factors to which I must have regard in determining the nature and seriousness of the applicant’s criminal offending. I accept that according to that paragraph I must view the applicant’s violent offences very seriously. I take into account that the applicant actively participated in the violent extortion of a bankcard and PIN from the visitor to his partner’s house. I accept also that he was involved in very serious violence towards his brother’s partner whilst she was carrying a baby, in serious violence to an innocent neighbour who had sought to intervene on her behalf, and in violence against a police officer. He was also violent in his domestic life.
I bear in mind that in all these incidents the applicant demonstrated significant violence. The first offence was premeditated and was not the result of alcohol disinhibition. The second offence, it is true, was influenced by alcohol-induced disinhibition, but the assaults were of a particularly ferocious and prolonged nature. Alcohol-induced disinhibition was not the sole cause. The applicant’s offending on that day began when he joined in the attack upon P’s partner while she carried a young child. The attack was so serious that it aroused the concern of neighbours who put themselves at risk by seeking to intervene. The applicant then attacked one of the neighbours. Even when the police were summoned, the three brothers, including the applicant, chose to attack the two police officers who attended the premises. The applicant’s attack upon the probationary constable in question was extremely violent. I note that it not only included a strong degree of physical violence but also an attempt to wrest the officer’s weapon from him. Fortunately, that attempt was frustrated; otherwise, it seems clear enough that the applicant may well have proceeded to even more serious violence.
I must also have regard to the principle that crimes of a violent nature against women are viewed very seriously. In this regard, I have taken into account the violence that has featured in the applicant’s relationship with his partner and, although he was not charged in relation to it, the violence that undoubtedly occurred and was directed towards P’s partner while she was carrying a child. I note that the sentencing remarks of the judge who heard the extortion case refer to the applicant’s partner’s submissions about the domestic violence she had sustained in her relationship with the applicant.[9]
[9] Ibid, p 59.
Overall, the violence that the applicant has shown in his life is very disturbing. I note that it has included strong violence towards women and police officers, whom I would regard as government officials for the purposes of applying paragraph (c) of paragraph 13.1.1 (1). I am required to have regard to the sentences imposed, and I note they are lengthy sentences properly reflecting the gravity of the offending. I also think it can be said that there has been some frequency in the applicant’s offending, which has grown in seriousness. There was some minor offending in the past to which I have not referred. The offending increased in seriousness and culminated in the two most serious offences in 2012 and 2013, the latter occurring while the applicant was on bail. I think it is clear that by the stage of the offending in 2013, the applicant had demonstrated a strong disregard for common Australian values and laws in general. I accept that there is a cumulative effect of repeated offending in this case, and I take that into account.

I must consider also the risk to the Australian community should the applicant commit further offences. I must have regard to, “cumulatively”, the nature of the harm to individuals or the Australian community should he engage in further criminal or other serious conduct and the likelihood of a recurrence.
I think the nature of the harm to individuals or the Australian community if there is further criminal or serious conduct is of very real concern in this case. I am particularly concerned about the impact of violence upon members of the community who seek to protect others and upon police officers attempting to keep the peace when there are disturbances. I think the nature of the violence of which the applicant has shown he is capable is of very real concern. I would also mention again the violence towards women the applicant has demonstrated in his domestic life and towards his brother’s partner.
I must estimate the likelihood of the applicant’s engaging in further criminal or other serious conduct. In this regard, there are several things to be said in the applicant’s favour. First, although the serious extortion offence in which the applicant was involved was premeditated and not influenced by alcohol abuse, it is true to say that the second series of offences was influenced by alcohol abuse, although alcohol disinhibition was not the sole cause. It is also true to say that the applicant’s relationship with his ex-partner was afflicted by alcohol. Alcohol, therefore, has figured significantly in the applicant’s offending as a contributing factor. I bear in mind that the applicant was jailed some time ago and moved from jail to immigration detention immediately. It has been some seven years since the applicant has had any alcohol. I note that he has no drug dependence issues known to the Tribunal. Seven years is a considerable period of time and any physical dependence upon alcohol would have ceased some time ago.
Alcohol misuse has multiple causes and the elimination of physical dependence does not, of course, guarantee that a person will not revert to alcohol. But the significant period of time that has now elapsed from the commencement of the applicant’s incarceration gives me reason to believe that the applicant will be able to lead his life without alcohol if he so chooses.
I was impressed also by the applicant’s ability to answer questions concerning what he had learned in jail and immigration detention in respect of appropriate conduct. The courses he has undertaken have had some positive effect despite his very limited English. I accept his evidence that his more recent discussions, opening up about his adverse experiences in Burundi, have been of benefit to him.
The applicant did seek, however, to minimise before me the level of his offending in respect of the first offence involving the extortion of the bankcard. In his closing submissions the applicant revised his version of events and said that he had effectively distorted the truth because he was genuinely scared of losing his appeal before the Tribunal. I found his evidence in relation to the second offence more in line with the truth as recorded in the sentencing remarks.
Fear when facing deportation to a country like Burundi is understandable; but I am unable to say that I am fully persuaded that the applicant at this point of his life understands completely how wrong and harmful his conduct has been. In particular, I believe the applicant requires further training, counselling, and therapy in relation to his propensity to violence towards women. I remain particularly concerned about the incident involving his brother’s partner who was set upon by all three brothers and even though she was carrying a child at the time. The violence demonstrated on that occasion not only towards the brother’s partner but also to neighbours and the police showed a very disturbing tendency.
That said, I do take into account that the applicant is well aware, as he himself indicated in his evidence, that any further violent offending by him will almost certainly see him deported to Burundi irrespective of any concerns he may have about his safety and welfare. He appreciated, in another words, that this was a final chance. Deportation is a strong deterrent factor in this case in my opinion.
I also take into account the positive reviews of the applicant’s jail behaviour. For example, I note that in a report from the Port Augusta Prison dated 1 April 2019 it is recorded that the applicant
“continues to demonstrate excellent and polite behaviours towards both staff and other prisoners…. He mixes well with others and his room and personal hygiene are both of an exceptional standard. He has no warning or incident case notes recorded in this review period.”[10]
[10] Ibid, at p 73.
So far as his core programs are concerned there is “positive feedback” noted in relation to his participation in a “Living without Violence Program”.[11] His employment within the jail compound as the gym cleaner led him to be assessed as a “conscientious worker who completes all tasks required… to a high standard”. He also had excellent work reports from staff arising from his time in the laundry.[12]
[11] Ibid, at p 74.
[12] Ibid.
These reports suggest that the applicant has endeavoured over a significant period of incarceration to “turn himself around”, so to speak. I think he should be given credit for this, and these reports support his evidence to the Tribunal that he has reflected carefully upon his past offending and wishes not to repeat it in the future.
Of course, I cannot say at this stage that the applicant poses no risk to the Australian community. But I do believe that there is a legitimate reason to suppose that the applicant may not revert to alcohol use or seek to use violence in his life. I believe there is a particularly strong deterrent held out to this applicant: he faces jail sentences that will only increase in severity if he chooses to reoffend as well as the near certainty that he will be deported if he chooses to be violent again. I believe that prison and immigration detention for the last seven years in aggregate have had a very impressive effect upon the applicant. In particular, jail appears to have assisted in his rehabilitation.
All in all, I believe, therefore, that there is some cause for cautious optimism that the applicant will not revert to crime; but I am also conscious of the fact that a real risk of reoffending is still present, that the applicant requires further training in respect of his relationship with women in particular, and that he also requires therapy for his post-traumatic stress disorder. I am also aware that the harm he has inflicted so far has been severe, and others will suffer grievously if his behaviour is repeated.
I must consider also the expectations of the Australian community which is the third primary factor. The Federal Court in FYBR v. Minister for Home Affairs [2019] FCAFC 185 has made it clear that the community expectations in this regard are given in the direction itself and are not for me to assess for myself. I think it is clear that the community expectations in this regard favour the deportation of the applicant given the degree of violence he has demonstrated and his criminal record. I take those expectations into account as a primary factor.
The final primary consideration I must take into account is the interests of minor children. The applicant has two children from his former partner who are now thirteen and eight. I note that the delegate’s conclusion in this regard is that the applicant had been closely involved in the early lives of the children and remains important in their development as minors. I am prepared to accept that view of the matter, and it is consistent with the submissions made on behalf of both the applicant and the respondent at the hearing before me. This view was also supported by the evidence given to the Tribunal by the applicant’s former partner and mother of the two children in question. She is now married happily and in fact has a child with her new partner. She had no apparent reason to speak on his behalf, especially given the violence she has suffered in their relationship.
The applicant did not seek to suggest that the new partner is anything other than a decent and appropriate foster father to his two children. I take into account, therefore, that there is another male parental figure from whom the children will receive guidance. But I accept that the two children are still attached to their biological father: this was put explicitly to me by the applicant’s former partner in her evidence.
A statement from the applicant’s former partner was in evidence before me that suggested that she has had serious health issues (involving a brain tumour).[13] On the face of matters, the applicant’s former partner is justifiably concerned that her two children will “lose” both biological parents if she were to die (or become incapacitated) and if the applicant were returned to Burundi. I accept that this is a genuine, and not fanciful, concern. The interests of the two children favour revocation of the deportation order in my opinion.
[13] Exhibit A5. This evidence was not challenged by the respondent in cross-examination.
There are other considerations that must be taken into account under the Direction. A non-exhaustive list of five factors appear in the Direction. These appear in paragraph 14. I deal first with the extent of impediments the applicant would face on removal. I believe they would be very significant. I believe that the applicant’s post-traumatic stress disorder would be exacerbated by a return to the very country in which he suffered so grievously. The mental health services that would be available to assist the applicant in Burundi are likely to be very limited, indeed. I take into account that Burundi is one of the poorest countries in the world and that its society has been convulsed in the past by violent upheavals and conflict.
Burundi’s society is also unlikely to be one in which the applicant will achieve, in my opinion, basic living standards. I bear in mind that he has no family or other connections in Burundi since he left so many years ago for Tanzania. He cannot read or write Kirundi, the language of Burundi. The impediments the applicant faces will make it extremely difficult for him to maintain even an elementary life there. I accept that for these purposes, I should not apply Australian standards of welfare and economic well-being. I do apply, however, the fundamental concept of basic minimum standards. I think the applicant will be severely challenged in maintaining basic minimum standards; and, as I say, I am concerned by the poor prospects he would have of receiving appropriate treatment in respect of what was acknowledged before me to be an existing mental condition, namely his post-traumatic stress disorder.
I must also have regard to the strength, nature, and duration of his ties. I do accept that the applicant has very strong ties with his mother. In this regard, it is important, in my opinion, to bear in mind the impact that the applicant’s deportation to Burundi would have upon her. The applicant’s mother is now in poor health and requires assistance. I bear in mind, in particular, that she has lost so much in her life. Her husband and many of her children were murdered in Burundi. That in itself is an enormous burden for any person to bear. It would appear that another child was lost (presumed dead) in the refugee camp in Tanzania.
As I understand matters, her remaining sons are all now in immigration detention following the mandatory cancellation of their visas in respect of the incident that I have described earlier in these reasons. If the applicant were deported to Burundi, I believe the mother would effectively lose contact with him. I do not accept that she would have any realistic chance of seeing him again, and I regard as most unlikely the chances that she would be able to maintain regular contact him with him by phone or through the internet. Even if I assume that the other two brothers will be released from immigration detention, the burden to the mother of “losing”, so to speak, a further child is a matter I believe I should take into account.
The exercise of the power to revoke cancellation of a visa is properly informed by considerations of common humanity. I think it would be an enormous burden to cast upon this mother the deportation of her oldest son when she has lost so much already. I think it would also be a hardship to the applicant to find himself in Burundi and unable to support his mother as she faces her declining years.
I do not have any information before me with respect to the impact on victims and I leave this factor out of account. Similarly, I have no information before me concerning the impact on Australian business interests of a decision to deport the applicant, and so I leave that consideration to one side.
Of the five factors specifically nominated in paragraph 14 of the Direction, there remains only international non-refoulement obligations. I should say at this point that I have been able to reach my decision in this case without regard to any such obligations.
It is not strictly necessary, therefore, for me to deal with this factor. I am aware that the applicant has had an application for a protection visa rejected by this Tribunal in its Migration Division, where a conclusion was reached that the applicant would not face a risk of harm if he were deported to Burundi.
Ms Butler, for the respondent, referred me to the recent full Federal Court decision in Ali v Minister for Home Affairs [2020] FCAFC 109. She submitted that as a result of this decision, it is my responsibility to consider the question of non-refoulement obligations de novo, and that I am not bound to follow the earlier tribunal decision in this regard, although I may have regard to it.
The difficulty in the present matter is that the respondent has not put before me any country information that would allow me to infer that the applicant does not face a serious risk of harm in Burundi so as to eliminate non-refoulement obligations. In addition, the respondent accepted the reliability of the material that had been placed before me on behalf of the applicant (or at least did not actively challenge it). Some of this extensive material clearly supports the applicant’s evidence to me that he remains legitimately concerned in particular that the youth wing of Burundi’s ruling party, the so-called “Imbonerakure”, is indiscriminately violent. It attacks randomly those whom it suspects of being opposed to the regime without investigation and with apparent impunity.[14] On the basis of the information presently before me, which has not been contradicted by the respondent, I would find that non-refoulement obligations are most probably owed to the applicant. As I have said, the respondent invited me to consider the matter for myself notwithstanding the earlier Tribunal decision and the respondent did not actively challenge the material put before me on behalf of the applicant.
[14] See, for example, ex A2 at pp326ff.
I reiterate, however, that this consideration is merely an additional reason for supporting my conclusion; I would have reached the same conclusion even if this consideration were not present.
Weighing up the relevant considerations in this case has caused me difficulty. As I have said, I have left to one side any non-refoulement obligations. On the one hand, there is no doubt in my mind that the violence in which the applicant has engaged is extremely serious. The applicant’s violence has been directed towards women, a member of the community seeking to protect a woman, and a police officer acting lawfully and reasonably in the execution of his peacekeeping functions. A tendency to significant violence is unacceptable in the Australian community; all the more so when it is directed against women, those defending them, and the police. In normal circumstances, the applicant might well face deportation given his criminal record.
On the other hand, the direction makes clear that the individual circumstances of each case must be considered. In this particular case, I do believe that the interests of minor children, a primary consideration, and the other, secondary considerations I have considered above (namely, the impact upon the applicant’s mother, the obstacles the applicant would face in achieving a basic living standard in Burundi, and the obstacles he would also face in securing appropriate mental health treatment) are very significant indeed. In the circumstances of this particular applicant, I have concluded that these considerations are so significant that they do outweigh the two primary considerations that favour deportation; namely, the protection of the Australian community from criminal conduct and the expectations of the Australian community.
In my consideration of this case, I should say that I have left to one side any consideration of what influence the applicant’s witnessing of the execution of his father and siblings might have had upon his violent offending in Australia. I do not have a psychological report or other expert evidence before me that suggests the applicant’s violence in Australia has been caused by his childhood experiences. I have not concluded, therefore, that the applicant’s violent offending is, indeed, linked to these earlier experiences. I do not doubt on the evidence before me that they have led to a post-traumatic stress disorder; but I have not gone further in linking the behaviour that the applicant has exhibited in Australia to past events. I think it would be wrong to do so in the absence of appropriate expert evidence.
DECISION
In all the circumstances of this case, therefore, I have decided to set aside the decision under review and to substitute a decision that the mandatory cancellation of the applicant’s visa be revoked.

I certify that the preceding 65 (sixty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Manetta.

………[sgnd]………………………….
Administrative Assistant Legal
Dated: 31.08.2020
Date of hearing: 9.07.2020, 10.07.2020, 20.07.2020, 23.07.2020
Applicant:Self-represented
Respondent’s representative: Ms Laura Butler, Australian Government Solicitor