LRMM and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 3162

LRMM and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3162 (6 October 2023)
Division: GENERAL DIVISION
File Numbers: 2021/0321
Re:LRMM
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:6 October 2023
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision dated 12 January 2021 made by a delegate of the Respondent to not revoke the mandatory cancellation of the Applicant’s Class XB Subclass 200 – Refugee visa.
.........................[SGD]............................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION- matter before the Tribunal for a third time - non-revocation of a mandatory cancellation of Class XB Subclass 200 Refugee visa- where the Applicant does not pass the character test-whether there is another reason to revoke the mandatory cancellation decision-consideration of Ministerial Direction 99- where risk of reoffending found to be low subject to ongoing counselling requirements being met -where the best interests of minor children , links and ties to the Australian community weigh in favour of revocation- where legal consequences of the decision and extent of impediments if removed from Australia weigh strongly in favour of revocation- where claims about indefinite detention breaching Australia’s compliance with International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights raised- Tribunal finding protection and expectations of the Australian community outweigh primary and other considerations in favour of revocation– Tribunal finding there is no other reason to revoke the mandatory cancellation of the Applicant’s visa- decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
Ali v Minister for Home Affairs (2020) 278 FCR 627
BNGP v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 11
CRRN v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1050
M1/2021 v Minister for Home Affairs (2022) 400 ALR 417
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
SCDZ v Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 4442
VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921
Walker v Minister of Home Affairs [2020] FCA 909
Secondary Materials
Ministerial Direction No 99- Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)
TABLE OF CONTENTS
INTRODUCTION
LEGISLATIVE FRAMEWORK
Does the Applicant pass the character test?
Is there another reason to revoke the mandatory cancellation of the Applicant’s Visa?

PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
The nature and seriousness of the Applicant’s conduct to date
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The likelihood of the non-citizen engaging in further criminal or other serious conduct
Conclusion: Primary Consideration 1

PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
Paragraph 8.3(1): Consideration of the impact of this decision on the Applicant’s immediate family members
Paragraph 8.3(2): Consideration of the Applicant’s ties to Australia having regard to the Applicant’s child/ren who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely
Paragraph 8.3(3) Strength, nature, and duration of ties with any family or social links generally
Paragraph 8.3(4): Consideration of the nature of the Applicant’s ties to the Australian community having regard to the length of time he has resided here
Conclusion: Primary Consideration 3

PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Identification of the relevant minor child[ren]: full siblings & step-siblings (collectively referred to as ‘Category A minor children’)
Identification of the relevant minor child[ren]: further minor nephew
Application of factors at 8.4(4) of the Direction to the Category A children and to ADM Junior
Application of factors at 8.4(4) of the Direction to [Child Ty]
Conclusion: Primary Consideration 4

PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
OTHER CONSIDERATIONS
Other Consideration (a): Legal consequences of the decision
Other Consideration (b): Extent of Impediments if removed
Other Consideration (c): Impact on victims
Other Consideration (d): Impact on Australian business interests
Other Consideration (e): A further contention raised by the Applicant about Australia’s compliance with International Covenant on Civil and Political Rights(ICCPR) and the Universal Declaration of Human Rights (UDHR)
Findings: Other Considerations

CONCLUSION
DECISION
ANNEXURE A
REASONS FOR DECISION
Senior Member Theodore Tavoularis
6 October 2023
INTRODUCTION

LRMM (‘the Applicant’) is a 22 year old, born in Kenya in March 2001. He first arrived in Australia in November 2012 as an 11 year old.[1] He has never departed Australia since his arrival.
[1] G1, p 40.
On 10 August 2020, while the Applicant was serving a full-time custodial term of imprisonment, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’) notified the Applicant of the mandatory cancellation of the Applicant’s Class XB Subclass 200 – Refugee visa (‘the Visa’) pursuant to s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’).[2] On 16 August 2020, the Applicant made written representations to the Respondent requesting revocation of the cancellation of his Visa.
[2] G1, p 11.
On 12 January 2021 a delegate of the Respondent made a decision to not revoke the earlier mandatory cancellation of the Visa (‘Decision Under Review’).[3] This decision was notified to the Applicant on 13 January 2021. On 21 January 2021, the Applicant lodged the instant application in this Tribunal seeking review of the non-revocation decision. I am satisfied this Tribunal has jurisdiction to review the non-revocation decision pursuant to s 500(1)(ba) of the Act.
[3] G1, p 17.
On 23 December 2022, the Federal Court of Australia granted the appeal of the previous decision of this Tribunal (constituted differently) and directed it be reconsidered according to law. This is this matter’s third ventilation before this Tribunal. While evidence ventilated in those two earlier Tribunal proceedings may be taken into consideration for present purposes, this is nevertheless a hearing de novo. Revocation or affirmation of the decision under review by this Tribunal is, by definition, a stand-alone merits-based review of the evidence.
The hearing of this matter proceeded on 24, 25 and 10 August 2023. The hearing before me received oral evidence from the Applicant, Mr MM and Ms Anna Perry. The hearing also received written evidence. At the commencement of the hearing the parties agreed that the totality of the material had been consolidated into an agreed Exhibit List.[4] During the hearing the initially agreed list was expanded to include further documents tended by the parties. These further documents were tendered without controversy or contest. The final consolidated and agreed Exhibit List is attached to these Reasons and marked ‘Annexure A’.
[4] Transcript, p 2, lines 28-47.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 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 s 501CA(4)(a) 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 parties agree that the Applicant does not pass the character test[5] because this Applicant has a ‘substantial criminal record’ due to him being sentenced to respective terms of imprisonment of four years and three years on 29 July 2020 .[6] Accordingly, I find that he does not pass the character test and cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his Visa to be revoked.
[5] Transcript, p 70, lines 44-46 p 3, lines 33-38.
[6] R1, p 6, [20]; A1, p 6, [6].
Is there another reason to revoke the mandatory cancellation of the Applicant’s Visa?
In considering whether there is another reason to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) of the Act to comply with any directions made under the Act. In this case, Direction No. 99 – visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘Direction’ or ‘Direction 99’) has application.[7]
[7] Direction No 99 commenced on 3 March 2023. It replaces Direction No. 90 – 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:
1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
6
Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the

non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
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 four Other Considerations which must be taken into account. These considerations are:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)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 the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by

non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
Prior to tabulating the Applicant’s offending history for the purposes of these Reasons, it is necessary to first establish precisely which part of the totality of that history can be taken into account for present purposes. This requirement derives from the High Court’s judgment in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17 (‘Thornton’). The essential principle established by Thornton is that offending which the Applicant committed as a child (i.e before attaining the age of 18 years) and for which he was convicted but in respect of which no conviction was recorded, cannot be taken into account in any assessment of the totality of his conduct for present purposes.
Accordingly, the offences for which the Applicant was convicted as a child (and for which no conviction was recorded) are those matters dealt with at the sentencing hearings occurring in October 2014, January 2016, July 2016, June 2017 and February 2019. Those convictions are deemed by Thornton to be excluded from consideration. The Applicant turned 18 in March 2019. This Tribunal will therefore limit its reference to the Applicant’s offending to the criminal history deriving from sentencing hearings that occurred in May 2019, October 2019 and July 2020.
Having regard to the immediately preceding narrative around Thornton, the totality of the Applicant’s offending history can be stated in the following table. For clarity, the offences not affected by Thornton appear in bold:

Court Date Offence Sentence

Queensland District Court

July 2020

Robbery armed/in company/wounded/used personal violence

Conviction recorded

Imprisonment: 4 years

To be suspended for: 4 years

After serving 10 months

Robbery armed in company

Conviction recorded

Imprisonment: 3 years

To be suspended for: 4 years

After serving: 10 months

Served concurrently

Common Assault (three charges)

Assaults occasioning bodily harm whilst armed/in company

Stealing

Conviction recorded

Probation period: 2 years

Summary offences heard by the District Court

Stealing (2 charges)

Unlawful use of motor vehicle, aircraft or vessel – use

Conviction recorded

Probation period: 2 years

: indictment no. 1353/20)

Failure to Appear in accordance with undertaking

Conviction recorded

Not further punished

Queensland Magistrates Court

October 2019

Possess tainted property

Conviction recorded

Fined: $450

May 2019

Contravene direction or requirement

No conviction recorded

Fined: $350

Queensland Childrens Court

February 2019

Enter dwelling with intent by break at night

Receiving tainted property

No conviction recorded

Probation period: 3 months

June 2017

Assault or obstruct police officer

Possess utensils or pipes etc for use

Fraud – dishonest application of property of another (2 charges)

Attempted fraud – dishonest application of property of another

Possession of a knife in public place or school

Unlawful possession of suspected stolen property

Assaults occasioning bodily harm

Stealing from the person

No conviction recorded

Probation period: 6 months

Queensland Childrens Court

July 2016

Fraud – dishonestly obtains property from another

Attempted fraud – dishonestly gain benefit/advantage

Burglary and commit indictable offence

Fraud – dishonest application of property of another

No conviction recorded

Reprimanded

Summary of the Applicant’s offending – by date of sentencing hearing

Queensland Magistrates Court May 2019: The first offence committed by the Applicant culminated in a conviction for ‘Contravene Direction or Requirement’. In April 2019, the police approached the Applicant for the purposes of speaking to him and other persons whom the police noticed to be ‘loitering outside the shops at [Brisbane address redacted]’. The police approached the Applicant and, as the Queensland Police QP9 document notes ‘…started by just asking the Defendant [the Applicant] what his name was. The Defendant became very defensive stating that he had done nothing wrong and would not give police his name.’[8]
[8] G1, p 272.
The Applicant maintained his refusal to provide his personal particulars to the police. He was warned that he would be placed under arrest if he maintained the refusal. The police eventually placed the Applicant under arrest and ‘…he instantly became verbally aggressive toward police.’ The QP9 document further notes that the Applicant ‘…used several insults to try and antagonize them into a fight and called them racist on several occasions.’[9] He was transported to the local police station and as part of that process he was again asked to state his name. The QP9 document notes that ‘The defendant again refused, only telling the police to “shut the fuck up”.’[10] At the sentencing hearing about a month later, in May 2019, the Applicant was fined the sum of $350 and no conviction was recorded.
[9] Ibid.
[10] G1, p 272.
Queensland Magistrates Court October 2019: police in a district of Brisbane became aware that on a date in late August 2019 a set of registration plates were stolen from a vehicle in the local area. In early September 2019, police were called to a disturbance and, as part of their inquiries, noticed the aforementioned stolen registration plates on a particular vehicle parked at the right side of the dwelling where the disturbance had occurred. The Applicant was at the scene of the disturbance and, after identifying himself to the police, they spoke with him. There must have followed questions about the subject vehicle and the registration plates on it. The Applicant told police that he had, the day before, bought the subject vehicle and that the subject registration plates were on the vehicle at the time of purchase.

Unable to provide particulars of the vehicle’s purchase, the police seized the subject registration plates and charged the Applicant with ‘Possess Tainted Property’.[11] About six weeks later in about mid-October 2019 the Applicant was convicted of this offence, fined $450, with no conviction being recorded.
[11] G1, p 276.
Queensland District Court July 2020: this is the offending that came before Her Honour Justice Dick SC. This offending is more extensive than what proceeded it. This offending proceeded by way of a seven count indictment that relevantly appears in the material.[12] In short compass the seven counts comprise:
Counts 1, 3, 4            Common assault [x3]
‘Count 2   Assault occasioning bodily harm, in company
Count 5  Stealing
Count 6  Armed robbery in company
Count 7  Armed robbery in company, with wounding’[13]
[12] G1, pp 312-314.
[13] G1, p 312.
The indictment deals with the Counts in three groups deriving from three separate incidents. In the first incident, the complainants were an adult male and female. The conduct perpetrated against these complainant victims involved the Applicant and his co-offenders gratuitously and without provocation proceeding to:
·push the male complainant on his chest (grounding the first unlawful assault charge);
·punching the female complainant to the left side of her face using a closed fist (grounding the second Count of assault occasion assault but including assault occasioning of bodily harm, in company);
·one of the Applicant’s co-offenders then threatened both complainants using the words ‘I’m 16 and I’ll fucking stab you cunt’ (grounding the third and fourth common assault charges);
·the offenders then picked up a bag belonging to the female complainant which contained items of personalty belonging to that complainant. The stolen bag was passed to the Applicant (grounding the fifth charge in the indictment, that of stealing).
The indictment then deals with the sixth Count which is charged as ‘armed robbery in company’. The Statement of Facts notes the Applicant was ‘armed with an offensive instrument’ and that he was in company. It is worth quoting the indictment in full in respect of this charge:
‘Second incident (Count 6)
7. The complainant is [name redacted].
8. On 9 November 2019 at 12:45am, the complainant was walking on [address redacted]. [Name of co-accused redacted] approached him and asked for a cigarette. The complainant said no. [Name of co-accused redacted] followed the complainant for a short while. The complainant turned around and suddenly saw [the Applicant] and two unknown male associates standing 20 meters away.
9. One of the males then approached the complainant and asked if he wanted "trouble”. The complainant continued to walk in an attempt to get away from them. The defendants and two unknown males surrounded the complainant. One of them demanded the complainant's back-pack. The complainant removed the backpack and showed it to them. [The Applicant] then held a knife at the complainant's stomach. The complainant said he did not need to use the knife.
10. [Name of co-accused redacted] then took the complainant's bag and searched it. One of the males took the complainant's mobile phone and demanded the pin code, as [the Applicant] continued to hold the knife against his stomach. [the Applicant] then moved it to the complainant's throat, such that the blade touched his skin. As he did this, he told the complainant nothing would happen to him as long as he gave them what they wanted. The complainant complied and gave them his pin number. The blade remained at his throat while another male unlocked the phone and completed a factory reset.
11. [Name of co-accused redacted] then wiped the handle of the complainant's backpack and said she needed to remove her fingerprints. [The Applicant] told the complainant not to go to police and released him. Both defendants and the two unknown male offenders walked away from the scene with his mobile phone.’[14]
[14] G1, pp 316-317, [7]-[11].
The indictment then deals with the seventh and final Count, that being armed robbery in company, with wounding. Once again, such is the severity of this offending that it is worth reproducing the relevant portions of the Statement of Facts in full:
‘Third incident (Count 7)
12. The complainant is [name of complainant redacted].
13. On 10 November 2019 at 3:30am, the complainant was walking along [address redacted]. [The Applicant]
and [name of co-accused redacted] were seated nearby. [name of co-accused redacted] approached the complainant and asked the location of the train station. [The Applicant] then asked the complainant if he had any money to which he said no and that he only had bank cards. The defendants continued to ask the complainant for money and followed him until they reached the driveway of [address redacted]
14. [The Applicant] then put his right arm around the complainants head and pulled his face towards him. He pressed an object against the complainants chest and said, "Don't move or I'll stab you'. The complainant asked [the Applicant] if he was going to stab him; [the Applicant] said he would not if he did not move. At this point, [name of co-accused redacted] searched the complainant's pockets, removing and stealing his bank cards and a mobile phone.
15. The complainant put his hand in his pocket and grabbed his keys. As he did this, [the Applicant] struck his head with a fist and told him not to move. The complainant called out to a nearby Uber driver to call police. [name of co-accused redacted] then struck the complainant on the back of his head a few times. She then attempted to pull the keys from the complainant's hand causing them to fall onto the ground. When the complainant bent down to pick them up the defendants began hitting his head again. They then walked up the driveway away from the complainant.
16. The complainant ran after them and got hold of [name of co-accused redacted]’s jumper. He demanded her to return his property. [The Applicant] ran up to the complainant and stabbed him twice in his right upper arm and punched him in the head with a closed fist. The complainant sustained lacerations to his left eye and nose and two lacerations to his left upper arm each approximately 1.5cm in length.
17. The complainant ran towards the Uber driver and asked for help. The defendants ran to a nearby driveway of a unit complex on [address redacted]. Shortly after, [name of co-accused redacted] ran out of the driveway and into another street and [the Applicant] continued up the driveway before both disappeared.
18. Police and Queensland Ambulance Services arrived shortly after. The complainant was transported to a Hospital where he was treated for his injuries. The wounds on his arm and his eye were sutured closed using stitches.’[15]
[15] G1, p 317, [12]-[18].
In terms of this seventh Count, the material contains appalling and sobering images of its victim. Those photographic depictions can only be viewed in one way. Also, the Statement of Facts goes on to contain a number of paragraphs summarising the detection and arrest of the Applicant and his co-offenders. It is notable that the three incidents giving rise to the seven Counts were reported to police. The first six Counts were entirely captured on CCTV footage. In relation to the seventh Count, the Applicant and his co-offender were captured on CCTV footage immediately prior to and after the offending transaction.
When these indicted matters came before Judge Dick SC for sentencing in July 2020 there were five additional charges before the court which were not part of the indictment. They comprised
·two counts of stealing;
·one count of unlawful use of a motor vehicle;
·one count of driving without a licence; and
·one count of failure to appear in accordance with undertaking;
The immediately preceding charges of stealing and that of unlawful use of a motor vehicle was dealt with as summary offences pursuant to s 651 if the Criminal Code Act 1899 (Qld) as part of the indictment before the court in relation to the seven indicted matters. For these three charges, respective convictions were recorded and the Applicant was placed on probation for two years.
The fourth additional charge was proffered pursuant of s 33(1) of the Bail Act 1980 (Qld). On this charge, the Applicant was convicted with a conviction recorded but he was not further punished. The fifth and final additional charge was proffered as a driving offence, specifically, ‘Driving Without a Licence.’ For this offence a conviction was recorded and the Applicant was sentenced to one months’ imprisonment. A further order was made that he be disqualified from holding or obtaining a drivers licence for three months from July 2020.
In her sentencing remarks, Judge Dick SC noted that ‘These [that is, the indicted matters] are serious offences, particularly the armed robbery – the wounding.’[16] Her Honour took into account the Applicant’s plea of guilty to the totality of the charges before the Court.[17] In terms of observations about the nature of the offending and the Applicant’s conduct in the circumstances of its commission, Her Honour said:
‘HER HONOUR: Stand up, please. I do not have to talk to you very much about
these events. They happened over four days, and I can see that at least the first two of them, you were with the same people. On the first occasion, you sensibly kept out of it, except for the fact that you were a bystander and aided by your presence.
Unfortunately, by the time of the second incident, you are starting to hold a knife up to the person, and you put it to the person's stomach. By the third incident, you were punching the complainant. You stabbed him twice in the right upper arm and
him again in the head with a closed fist. So there was a rapid escalation in
your behaviour.’[18]
[16] G1, p 36, lines 35-36.
[17] Ibid, line 40.
[18] G1, p 36.
In terms of formulating a global sentence for the seven indicted matters, Her Honour said:
‘Here are the sentences that I impose. On count 6 on the indictment, the armed robbery in company, you are sentenced to imprisonment for a period of three years. On count 7 on the indictment, armed robbery in company with wounding, you are sentenced to imprisonment with a period of four years. On the three common assaults, the assault occasioning bodily harm, the stealing as a summary offence and the unlawful use as a summary offence – on each of those, I will offer you probation for a period of two years on your release from prison.’[19]
[19] G1, p 37, lines 35-42.
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 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 frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has 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).
(h)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
Paragraphs 8.1.1 considerations
Sub-paragraph 8.1.1(1)(a): there is surely no cavilling with the proposition (and finding) that the Applicant’s conduct (specifically, the seven indicted matters) that came before Her Honour Judge Dick SC in July 2020 did constitute offences of significant violence. Much of the offending posed an existential threat to its victims. Some of the Applicant’s violent offending was also perpetrated against a woman. This conduct squarely engages the operative effect of 8.1.1(1)(a)(i) and (ii). The chapeau to this sub-paragraph stipulates that a non-citizen’s commission of crimes of violence simpliciter (and crimes of violence against woman) is viewed very seriously by the Australian Government and the Australian community. I have no hesitation in finding that this sub-paragraph very strongly militates in favour of a finding that the Applicant’s conduct has been of a very serious and, more likely, extremely serious nature.
Sub-paragraph 8.1.1(1)(b): none of the Applicant’s conduct engages the operative effect of sub-paragraphs (i) and (iv). He has not been involved in unlawful conduct that caused a person to become a party to a forced marriage. He does not have any conviction for ‘a crime committed while… in immigration detention.’ However, that is not the end of the inquiry for the purposes of this sub-paragraph 8.1.1(1)(b). This is because the Applicant’s abovementioned conviction in May 2019 for Contravene Direction or Requirement of a police officer. This conduct constituted a crime committed against a government official in the performance of their duties. The chapeau to this sub-paragraph 8.1.1(1)(b) stipulates that such conduct is regarded as serious by the Australian Government and the Australian community. I so find.
Sub-paragraph 8.1.1(1)(b)(iii) also facilitates the taking into account the conduct of a non-citizen that may form the basis of a finding that he/she does not pass an aspect of the character test contained in s 501(6) of the Act. I make particular reference to s 501(6)(c) and, having regard to the nature, extent and level of seriousness of the Applicant’s past offending I am of the view that this sub-paragraph facilitates a finding that his conduct has been at least ‘serious’ (as per the chapeau to paragraph 8.1.1(1)(b)) but more likely very and even extremely serious.
Sub-paragraph 8.1.1(1)(c): in applying this particular sub-paragraph, I am precluded from taking into account sentences imposed on this Applicant for:
(a)any violent offending he may have committed against women;[20]
(b)acts of family violence;[21] and
(c)any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.[22]
[20] Paragraph 8.1.1(1)(a)(ii) of the Direction.
[21] Paragraph 8.1.1(1)(a)(iii) of the Direction.
[22] Paragraph 8.1.1(1)(b)(i) of the Direction.
Caution needs to be exercised in the application of this particular sub-paragraph. Granted, the Applicant does not have convictions for family violence or for causing a person to become involved in a forced marriage. In accordance with the provisions of this sub-paragraph, I must exclude the sentence he received for his violent offending against a female victim. It will be recalled that this transaction of offending was charged within the first five Counts appearing in the indictment.
However, and importantly, Her Honour Judge Dick SC sentenced the Applicant to, respectively:
·a term of imprisonment of three years for Count six in the indictment which involved very/extremely serious offending against a male victim only;
·a term of imprisonment of four years for Count seven in the indictment which, again, involved very/extremely serious offending against a male victim only.
Therefore, the Applicant’s two most significant sentences can be taken into account for the purposes of assessing the nature and seriousness of his conduct. A cumulative period of seven years’ imprisonment imposed on a very young offender is surely an indication of the level of seriousness of that offending. Judge Dick SC clearly thought the matters charged pursuant to Counts six and seven in the indictment were ‘serious offences’. Her Honour’s observation is, with respect, in line with previously expressed views of this Tribunal to the effect that sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and must be viewed as a reflection of the objective seriousness of the offending.[23]
[23] PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22]; followed in Lafaele and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 2827.
I am of the view (and I find) that the sentences imposed on the Applicant in July 2020 most certainly speak to the reality that his offending has been at least very serious, more likely extremely serious.
Sub-paragraph 8.1.1(1)(d): the first inquiry required by this first sub-paragraph is whether the Applicant’s offending has been frequent. The second is whether it demonstrates any trend of increasing seriousness. The Applicant is a young man who has recently turned 22 years of age. Despite his youth, he has been offending for a relatively long time. In terms of his precluded Thornton offences, he commenced offending as a circa 13-14 year old in 2014 and kept offending up to when he was 16-17. I will not take those offences into account for the purposes of this sub-paragraph 8.1.1(1)(d).
His offending as an adult was committed in 2019 when he had just attained the age of majority. My point in referring to the Applicant’s age is that, as an adult, he barely had time to compile any sequence or record of offending that could now be construed as frequent or otherwise of increasing seriousness. But in fact, both frequency and increasing seriousness is evident from the relatively compacted period of his unlawful conduct as an adult. When his offending as an adult was committed between April 2019 and November 2019, he was convicted of 10 offences. This is offending at a rate of greater than one offence per month. This can clearly be found to be frequent offending.
The abovementioned period of offending evinces an undeniable trend of increasing seriousness even across its seven-eight month timeframe. In April 2019 and September 2019 he has respective convictions for the relatively benign offences of Contravene Direction or Requirement and Possess Tainted Property. There is a dramatic and seismic increase in the level of seriousness of his offending which culminated in the dreadful events giving rise to the abovementioned seven Count indictment that came before Judge Dick SC for sentencing. I have already described that offending and there is no requirement to repeat that description here.

I am of the view (and I find) that this Applicant’s offending (as an adult) has been frequently committed (even across its short time span) and that it unquestionably betrays a trend of increasing seriousness. This sub-paragraph 8.1.1(1)(d) militates in favour of a finding that his offending has been very serious, more likely extremely serious.
Sub-paragraph 8.1.1(1)(e): once again, I will exclusively focus on the Applicant’s offending committed as an adult. The most immediately shocking cumulative effect of his offending can be seen in the photographic depictions of the physical harm and damage inflicted on the victim of the conduct grounding Count seven in the abovementioned indictment. Harm was most certainly occasioned upon that victim. It suffices to say that perhaps not to the same physical extent, the Applicant’s conduct otherwise served to traumatize both the male and female victim referred to in Counts one to five in the indictment and the victim referred to in Count six.
The Applicant’s offending – when viewed from the perspective of what he and his

co-offenders actually did – strikes at the heart of public order and the community’s’ right to go about its business unfettered by any existential threat to one’s safety and wellbeing. This is not offending of a private nature in the sense of the Applicant utilising physical violence to, for example, collect a debt from another participant in a criminal enterprise. Such offending is isolated and usually does not impact the public. Likewise, the Applicant’s conduct is not as benign as him stealing someone’s motor vehicle from a carpark. There, the victim is unlawfully deprived of property but not the subject of physical harm to any level, let alone an extreme level. In the sequence of the Applicant’s conduct described in the Statement of Facts, it is not at all a stretch of the evidence to suggest and find that one or more of the victims could have suffered a fatal outcome, particularly the victim in Count 7.
What the Applicant and his co-offenders have done is to unlawfully invade the private space of other community members. None of those members/victims threatened the Applicant or any of his gang. None of those members/victims provoked the offending. To my mind, the significant cumulative effect of the offending can be seen in what it represented at a broad level: community members were arbitrarily and wantonly deprived of their fundamental right to move through our community and to enjoy its amenities. Worse still, the Applicant’s unlawful conduct had profit and monetary objectives.
I am satisfied that the Applicant’s offending had palpable effects on its victims. I am also satisfied that his offending had the cumulative effect of striking at the very heart of our citizens’ right to freely move through our community. This sub-paragraph 8.1.1(1)(e) very strongly militates in favour a finding that the nature of this Applicant’s offending has been very serious, more likely extremely serious.
Sub-paragraphs 8.1.1(1)(f), (g) and (h): there is nothing before the Tribunal suggestive of this Applicant providing false or misleading information to the Respondent’s Department.[24] He has not received any written warning about the consequences of further offending in terms of his migration status to remain here.[25] Likewise, there is nothing before the Tribunal about the Applicant having committed offences in another country which could be relevant for any assessment of the nature of his unlawful conduct. [26]
[24] Sub-paragraphs 8.1.1(1)(f).
[25] Sub-paragraphs 8.1.1(1)(g).
[26] Sub-paragraphs 8.1.1(1)(h).
Conclusion about the nature and seriousness of the Applicant’s conduct
I have applied each of the relevant paragraphs contained in paragraph 8.1.1(1) of the Direction to the evidence before me surrounding the Applicant’s offending as an adult. I am satisfied that those relevant paragraphs give rise to a finding that the totality of the Applicant’s unlawful conduct in this country can be found to have been at least very serious, more likely extremely serious. I so find.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Sub-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.
Sub-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; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
I agree with how the Respondent has categorised the Applicant’s offending (as an adult) for the purposes of assessing the nature of harm that would befall victims were he to
[27] R1, pp 11 – 12, [49].
re-offend.[27] Were he to re-commit his stealing – type conduct, the community would suffer measurable material loss and damage. People who lawfully acquire their property are entitled to peaceful and quiet enjoyment of that property. Unlawful deprivation of a person’s right to own property constitutes a fundamental interference with how our community operates and how our citizens are entitled to reasonably expect our community should operate.
Were the Applicant to again commit driving and/or traffic offences, it could result in harm (or at least the exposure to harm) of other road users. Were he to again refuse to follow the lawful direction of a police officer or a lawful direction or obligation enshrined in a duly-issued undertaking, the community’s policing resources would again be unnecessarily consumed by having to regulate such conduct.
Most significantly, were the Applicant to again involve himself in the commission of offending enumerated at Counts 1 – 7 in the Indictment (and Statement of Facts) that went before Her Honour Judge Dick SC in July 2020, one need look no further than (1) the description of that conduct (in terms of its impact on victims) in the Statement of Facts; and (2) the appalling photographic depictions of what befell the victim of the offending constituting Count 7, to understand the extent of harm that could be suffered by the victims of such conduct.
Taken collectively, were the Applicant to re-offend in any of the realms he has done so far as an adult, I am satisfied that very serious physical, psychological, material and, quite conceivably, catastrophic harm would be suffered by its victims. I have no difficulty in concluding that offending of the type comprising the Applicant’s violent offending,[28] and the harm that would be caused in the event of its re-commission, is so serious that any risk of such re-commission would be unacceptable to the Australian community. I so find.
[28] As described in the subject Indictment and accompanying Statement of Facts (see G1, pp 312 – 318).
The likelihood of the non-citizen engaging in further criminal or other serious conduct
Such is the nature of the Applicant’s offending that the assessment of the level of recidivist risk he now represents is a task requiring a fulsome review of the evidence before the Tribunal. As a best as I understood the material, the following categories of evidence require review before any position can be taken about recidivist risk: (1) the oral and written evidence of the Applicant; (2) the oral and written evidence of Mr MM (social contact of the Applicant); (3) the written evidence of the clinical and forensic psychologist, Dr Emily Kwok; and (4) the oral evidence of Ms Anna Perry, the counsellor with QPASTT.[29] Following review of this evidence, I will then make specific findings about the extent to which this evidence speaks to the Applicant’s level of recidivist risk. I will then make an ultimate assessment of the likelihood of him engaging in further criminal or other serious conduct.
[29] Acronym for: Queensland Program of Assistance to Survivors of Torture and Trauma.
The Applicant’s evidence
As mentioned earlier, this matter has a storied history in this Tribunal. This has resulted in the Applicant’s provision of a plethora of written statements to which he was referred during his oral evidence. At the commencement of his oral evidence, the Applicant was taken to four specific statements and confirmed that he was content with what appears in them.[30] Those written statements comprise first, a handwritten letter attached to his Personal Circumstances Form (‘PCF’) which is dated 16 August 2020.[31] While the attached letter does not bear an actual date, it is reasonable to assume that this hand-written letter attached to the PCF also dates from mid-August 2020. In this statement, the Applicant acknowledges that ‘… I have committed offences of a serious nature… I take full responsibility for my offending and I am deeply saden [sic] by my actions’.[32]
[30] Transcript, p 15, lines 26 – 46.
[31] G1, pp 55 – 77.
[32] G1 p 74.
Further in this first statement, the Applicant says ‘I know I am responsible for my action, [sic] I was so desperate for money and I wasn’t thinking about my actions and with [sic] effect that will have on victims, my family and me’.[33] In terms of recidivist risk, he says ‘If you allowed me to stay in Australia, I will not re-offend and repeat the mistakes of my past. I am now in a better place to where I was before’.[34] This ‘better place’ is said to derive from his positive experiences in jail where he has apparently learnt new skills but ‘… most importantly discipline and commitment’.[35] Further support for his claimed epiphany in terms of recidivist risk (he says) is to be found in his ‘… very good behaviour in custody’.[36]
[33] G1 p 75.
[34] Ibid.
[35] G1, p 75.
[36] Ibid.
The second of the Applicant’s written statements in the material is dated 10 November 2020. [37] This letter was drafted and sent in response to a request from the Respondent’s Department to comment in the abovementioned sentencing remarks of Her Honour Judge Dick SC made in July 2020. After reading the sentencing remarks, the Applicant said ‘… they make me feel really, really low as a person. I am not proud of what it says about my actions… This is not the normal behaviour I display as an adult and it is not the way I want to live my life’. [38] There was also a ready acceptance ‘… that my behaviours is [sic] very wrong and that it is not acceptable and is very dangerous to people’. [39]
[37] G1, pp 78 – 79.
[38] G1, p 78.
[39] Ibid.
In terms of recidivist risk, the Applicant says:
‘I will not reoffend again, as I believe I have learnt my lesson. I can’t imagine going back to jail again. I am aware that I am on probation for 3+ years and I can not [sic] commit any other crime again otherwise I will be sent back the jail. That does scare me alot [sic]. I want to seek the right help and obey any instructions given to me by the parole and probations board’. [40]
[40] Ibid.
The third of the Applicant’s written statements also appears in the material and also seems to be undated but it most likely post-dates the first two statements he made because they were produced at the time of preparation and lodgement of his PCF.[41] He refers to his offending history on the basis that ‘I was very immature and selfish before I came to prison. I was doing dumb stuff’. [42] He refers to the ‘good influence’ of his then-girlfriend because ‘…she was helping me stay out of trouble’.[43]
[41] This third statement is at G1, pp 524 – 527. At paras [12] and [14] of this third statement, the Applicant confirms he has been shown the first two abovementioned statements.
[42] Ibid, p 527.
[43] Ibid.
The fourth written statement of the Applicant also appears in the material at Exhibit A2. It is the most recent of the Applicant’s written statements and was made in the form of a statutory declaration made on 28 June 2023. In this statement, he acknowledges the varied nature of his offending. It ranges from breaking into unit dwellings in retirement villages which he described as ‘… just easy targets’ [44] to the abovementioned extremely violent and extremely serious conduct that came before Judge Dick SC for sentencing in July 2020. He agrees that the totality of his conduct ‘should be taken seriously by the Australian community’.[45] He wants his visa returned to him on the basis that ‘… now that I’m an adult and have matured’.[46]
[44] A2, p 2, [14].
[45] A2, [15].
[46] Ibid.
He says ‘… I’m trying very hard to be clean and sober and deal with my mental health issues’.[47] He says he wants to continue injection therapy (suboxone and buvidal) for his difficulties with illicit drugs and that he ‘… would like to stay on them or some sort of opioid replacement therapy in the community’.[48]
[47] Ibid, [16].
[48] Ibid.
The Applicant also provided oral evidence at the hearing. There was a concerning tone in the Applicant’s evidence given in cross-examination about the extent to which it can now be found that he has overcome his past substance abuse difficulties. He confirmed that the only time he has used Ice was in or around 2019 at the time he committed the conduct that came before Judge Dick SC for sentencing in July 2020.[49] He otherwise confirmed that he had used alcohol and cannabis for ‘… a long time…’.[50] He then confirmed that he commenced using opioid-derived substances while in immigration detention and that he has used suboxone over a fairly lengthy period of time since he has been in immigration detention.[51] He confirmed this fairly lengthy period of time was ‘…about a year, or something’.[52] He further confirmed that he had used suboxone ‘one time’ while in prison.[53]
[49] Transcript, p 50, lines 41 – 43.
[50] Ibid, line 46.
[51] Transcript, p 51, lines 1 – 16.
[52] Ibid, line 19.
[53] Ibid, lines 31 – 36.
The Applicant described the impact of suboxone on him in these terms:
‘---For me it just - it numbs my whole problems. So it just numbs me and stuff, and like just - I don’t have to think a lot and stressing too much about stuff. It just - just relax me, and then I just - I can just do whatever I want to do, like sit down, (indistinct) and just relax, watch movie and stuff. So, of course before, like - whenever I didn’t use it, I was like - when I don’t use it I stress about it a lot. So, when I started using it, that’s when it started helping me, like, copying with my problems, the traumas, the depression and all that. That’s the reason I was using it to help me from all that, to try and forget it and to help it.’[54]
[54] Ibid, p 52, lines 15-23.
There followed a concerning development in the Applicant’s evidence about how the Applicant was sourcing suboxone in immigration detention and how he was paying for it. He agreed that he was using suboxone ‘every day’.[55] He was specifically asked whether he was sourcing this drug from fellow detainees and coyly replied with ‘I was getting it – I was getting it from someone’. [56] He was specifically asked whether he was sourcing suboxone from someone inside immigration detention and he responded with ‘I don’t want to say if someone in there our out there. It’s just – I was getting and I was using in the detention centre at the time’. [57]
[55] Ibid, line 28.
[56] Ibid, line 33.
[57] Ibid, lines 35 – 36.
The Applicant then re-confirmed he had been frequently using suboxone in immigration detention and that he had never used cannabis in detention.[58] This evidence about his cannabis use (or lack thereof) in detention was tested in cross-examination. Specifically, a record from the International Health and Medical Services (IHMS) bundle of documents was put to him. This record was made by the clinical psychiatrist, Dr Jillian Spencer and is dated 19 February 2023. In that record, Dr Spencer’s observation that the Applicant ‘Seems to be smirking a lot tonight, not sure why, ?smells of THC [Tetrahydrocannabinol]’.[59] Despite this observation by Dr Spencer, the Applicant maintained his position that he had never used cannabis while in immigration detention. [60]
[58] Ibid, line 45.
[59] A6 p 26.
[60] Transcript p 53, lines 10 -11.
There followed questions about how the Applicant paid for suboxone while in immigration detention. Again, there was both a coyness and reticence in his evidence. He was specifically asked how he could afford to pay for the drug while in immigration detention. He said ‘I could not say it, but I do – I use to get it but not anymore though’. [61] He was then asked where the funds came from to facilitate his purchase of this drug. Again, the answer was vague and evasive:
[61] Transcript, p 53, lines 34 – 35.
‘MR McLAREN: Yes, but you said you paid for it?
APPLICANT: ---Yes.
MR McLAREN: How would you pay for it? With money?
APPLICANT: ---With money. Yes, with money.
MR McLAREN: But where did your money come from? That’s what I’m asking?
APPLICANT: ---I cannot say that, where my money - where my money come from, because I don’t explain that where my money comes from - my money comes from, to be honest.
……
MR McLAREN: Where did your money come from to purchase it?
APPLICANT:---From outside. The money come from the outside.
MR McLAREN: Okay, and where from the outside? Who would - - -?
APPLICANT: ---A friend . A friend?---Yes.
MR McLAREN: A friend would give you money?
APPLICANT: ---Yes.
MR McLAREN: And how much money would the friend give you?
APPLICANT: ---I used to ask him for 50 to get credit - credit for my phone to use it (indistinct). But that’s how much I used to.
MR McLAREN: But how frequently?
APPLICANT: ---Once a month.
MR McLAREN: And how much - so you were saying you were doing Suboxone every day?
APPLICANT: ---Yes.
MR McLAREN: How much would it cost you each day to get - or how much would it cost to get the equivalent of one day’s use of Suboxone?
APPLICANT: ---- no, no, one day - a month’s worth is just $50. That’s what I get the $50 monthly. That’s what I get.
MR McLAREN: And can you say who your friend was that was giving you the money?
APPLICANT: ---I can’t say who it is, like, the name or anything. It is a friend from the past, but not anymore.’[62]
[62] Transcript p 53, lines 37-44; p 54, lines 3-28.
The Applicant was pressed about the identity of the friend and the following transpired between him and the Respondent’s representative:
‘MR McLAREN: Well, yes and no. Because I guess what I don’t understand is because you’re not saying who the person is, it’s difficult to understand who - what part - where they fit within your broader picture. And I think it’s relevant - potentially relevant - as to where those relationships lie into the future, potentially. So, I think I would be assisted by understanding who this person is?
APPLICANT: ---Yes.
MR McLAREN: And what relationship they had with you, and have had with you, while you’ve been in detention. That’s what I’m interested in understanding?
APPLICANT: ---It was my mum’s neighbour - like, the neighbour next to my mum’s and my father’s house. So, I never speak to him. Like I never use to hang around with him at all, because, like, I did find him approachable. I did - I spoke to him - asked me how life its going and stuff. Because he’s got kids. He’s got a wife and everything. So I would speak to him and see how everyone was going. So, he said he was going to send me money if I need money for credit, or if I needed money for something, for clothes. Because he find out I was in a detention centre - I told him that I was in detention - so he did - like, he did (indistinct) say, ‘If you need something, just let me know.’ If you need credit or clothes, I can try help you as much as I can. Like, because he’s got kids as well. So, I just - (indistinct) tell him it’s all right. Sometimes that’s (indistinct) phone credit for my phone. Because I’m on a plan, so - I do ask him money, and he sometimes does give me $50. That was before, but since I stopped using it, I - I do say hi to him and stuff, contact him, but I don’t ask him money (indistinct) because I stopped using it because of the program.
MR McLAREN: So, this man would give you money just because he - - -?
APPLICANT: ---As we were neighbours. Like, yes, my mum’s and my father’s neighbour. Like, he’s still a neighbour. Like, he moved out a while ago, and then he came back to the neighbour’s again. So after I spoke to him, and then I seen how he was doing and stuff, I spoke to him and all that, and then he then said, ‘I’m now back into near your family’s house’ - like same house - and, well, he’s here, and got a newborn son on the way as well. So, I did ask him money. He did give me money, because - like, $50, because he find out that I - I told him that I was in here, in the detention centre, so he would understand the detention and, like, well, it would be hard, like, it’s not an easy place, like.
MR McLAREN: Sorry, did you say he lives next door to your mother?
APPLICANT:---Yes.
MR McLAREN: Do you know whether your mother had spoken to him about you being in detention, or?
APPLICANT: ---No. No, I contacted him through Facebook.’[63]
[63] Transcript, p 54 lines 42-47; p 55, lines 1-35.

The Applicant’s cross-examination then took a course along a scenario involving what kind of people he would associate with and what his domestic living arrangements would be if returned to the community. He confirmed: (1) that people such as the anonymous person who supplied him with funds to purchase suboxone was not part of his negative peer group from the past and that he would not be associating with such bad influences if returned to the community;[64] (2) that the witness (in this case) known as Mr MM was a mere recreational acquaintance of the Applicant and that he was not part of his past negative peer group[65];(3) that he would look for a job through his family because ‘… they have a lot of connections’;[66] and (4) that he would move in and live with his father and save enough money until he (the Applicant) could get a place of his own.[67]
[64] Transcript, p 56, lines 19 – 24.
[65] Transcript, p 56, lines 40 – 46; p 57, lines 1-6.
[66] Transcript p 57, lines 13 – 14.
[67] Transcript p 57, lines 8 – 11.
The Applicant confirmed that he has never actually had a job involving remunerative employment during his time in this country.[68] In terms of the here and now, the Applicant confirmed that he does not have any job offer and when this question was directly put to him, he replied with ‘No, not that I can think of’.[69] The Applicant was taken to the evidence of Mr MM which involves him suggesting he could organise a job for the Applicant as a furniture removalist. The Applicant confirmed he was aware of this possibility and that it came up in conversation:
‘… a while ago, like when I did come to the detention centre, we were just having a normal conversation, and he did tell me: “If you do get out I do have a job for you that will keep you like, better. Like, you can get through (indistinct) money for yourself, and work towards a better future for yourself, you know, instead of stealing money, getting money the wrong way’ [70]
[68] Transcript p 57, line 22.
[69] Transcript p 57, line 20.
[70] Transcript, p 57, lines 34-39.
The Applicant was pressed about the nature and extent of his relationship with Mr MM who, according to the Applicant, is aged 26 years.[71] The Applicant confirmed he did not go to school with Mr MM and that he recalls meeting him ‘…in Logan at the park… near my mum’s house’. [72] The extent of the Applicant’s activities with Mr MM has seen them ‘…play basketball at the park and stuff… we used to go to the Gold Coast to share stuff.[73] Otherwise, the Applicant confirmed that he has been in contact with Mr MM while he has been in immigration detention and that they ‘…used to hang around a lot’. [74]
[71] Transcript, p 58, line 1.
[72] Transcript p 58, line 5.
[73] Transcript, lines 19 – 21.
[74] Transcript, p 58, lines 25 – 28.
There followed some questions about the furniture removal job that Mr MM had proposed. The Applicant’s evidence around his understanding of what this job involved was, at best, vague and contrived.[75] The Applicant could not name the owner of the business and his evidence went no higher than Mr MM telling him ‘…it was one of his family member [sic]‘.[76] In terms of the location of the business, the Applicant’s evidence went no higher than: ‘[Mr MM] said it was Brisbane and furniture removal, yes, Brisbane furniture removal. So we based around the city, around this area’.[77]
[75] Transcript p 58, lines 30 – 35.
[76] Transcript, p 58, lines 37 – 38.
[77] Transcript, lines 42 – 44.
The Applicant was taken to whether he had completed any rehabilitation courses and he replied that he had started doing so ‘Around 2021’.[78] He recalled consultations with the psychologists Dr Kwok and Associate Professor Freeman and receiving treatment for his claimed trauma symptoms from QPASST. Despite undertaking these courses and consultations, the Applicant eventually conceded that none of it prevented him taking up use of a new drug while in immigration detention, namely, suboxone.[79]
[78] Transcript, p 59, line 24.
[79] Transcript, p 59, lines 41 – 45; p 60 lines 1 – 7.
Finally, the Applicant was asked what he had taken from this counselling and he responded with this:
‘MR McLAREN: Right. And what have you taken away from the counselling?
APPLICANT: ---So the counselling is you don’t have to hold it in things. Like, it’s good to talk about it, to reach for help and stuff. When you’re doing it, it helps. So, (indistinct) have been using drugs and stuff to try run away from the problem, it’s not the way. So you could always get help - always reach out for help when you need help, and there’s nothing wrong with that, to reach out for help.’[80]
[80] Transcript, p 60, lines 32-38.
The evidence of Mr MM
Mr MM’s written statement appears in the material. [81] He seems to be a recreational acquaintance of the Applicant. He says the Applicant ‘… deep down is a great person, he’s nice, loving and caring and would help anyone in need’.[82] He is aware of the Applicant’s offending but regards the Applicant as a changed person who is not a threat to society. Perhaps most significantly, Mr MM says: ‘he will have employment with my brothers who run a furniture removalist company (I have checked with them and they have agreed), a place to stay and can contribute back into society’.[83]
[81] A30.
[82] Ibid.
[83] Ibid.
Mr MM also gave oral evidence to the instant hearing. During his evidence-in-chief, Mr MM confirmed and endorsed the terms of his statement before the Tribunal.[84] He named the furniture removal business operated by his brothers as ‘Dawsons Furniture Removal’ [85]
[84] Transcript, p 69, lines 15 – 16.
[85] Ibid line 20.
Mr MM was also cross-examined. He confirmed (1) that he met the Applicant in ‘a park’;[86](2) that ‘It’s been about 5 years…’ since the last time he saw the Applicant;[87]and (3) that he has not visited the Applicant during his incarceration but that ‘I stay in contact with him though. He calls, he messages.[88]
[86] Ibid, line 38.
[87] Ibid, lines 42-43.
[88] Transcript, p 69 lines 45 – 47.
There followed some questions about details around Dawsons Furniture Removal. It transpired that the business is not actually owned by Mr MM’s brothers. It is owned by someone called ‘Colin’.[89] The connection of the business to Mr MM’s brothers is limited to one brother who is apparently ‘a manager there’.[90] Mr MM confirmed no terms of employment had been agreed with the Applicant and that there is no employment contract either proposed or in place. [91]
[89] Transcript, p 70, line 21.
[90] Ibid.
[91] Transcript, p 70, lines 36 – 38.
Mr MM eventually named his brother who is supposed to be a manager at Dawsons Furniture Removal as ‘Kabe Higgs’. Mr MM also mentioned the name of his other brother ‘…Chris, he’s a leading hand. He’s been there for 10 years’.[92] Mr MM described the work as ‘a very physical job; it’s a hard job. But, even there’s like big piano’s, fish tanks, a lot of heavy furniture. So I done it for I think 3 months, and then I had enough, so I left, and I got another job’. [93]
[92] Transcript p 70, lines 44 – 45.
[93] Transcript 71, lines 1 – 5.
There followed some questions from me. One of them involved the extent of the Applicant’s offending and he said the following:
‘SENIOR MEMBER: All right. And the Government’s lawyer, Mr McLaren, asked you some questions about what you might have known about the applicant’s offending history. Do you recall those questions?
MR MM: ---I do, correct.
SENIOR MEMNER: And you were quite right in your guess, or estimate, when you said his offending must have been pretty bad, because it is the case that, for example, he did stab someone with a knife. You were aware of that?
MR MM:---Yes, I was, yes.
SENIOR MEMBER: Okay. And you’re aware that he had pretty significant troubles with drugs, particularly ice or methylamphetamine. You’re aware of that?
MR MM: ---Yes. Yes, I was aware of that.
SENIOR MEMBER: Are you also aware that his criminal history contains a number of offences against the property of other people? In other words, stealing? You’re aware of that?
MR MM:---No, I didn’t know that.’[94]
[94] Ibid, p 73, lines 14-28.
Mr MM’s evidence became coy and uncertain about whether his brother would employ the Applicant if he knew of the nature and extent of the Applicant’s offending. He thought it likely that his manager-brother would probably employ the Applicant despite his offending history but that he could not give definitive evidence in this regard because he was not the owner or manager of the business and that the right person to ask in this regard is his brother- manager, the above name Kabe Higgs. [95]
[95] Transcript, p 73, lines 30 – 46; p 74, lines 1 – 15.
The written evidence of Dr Emily Kwok
Dr Emily Kwok is a duly qualified clinical and forensic psychologist. Her written report appears in the material and is dated 21 June, 2023.[96] She conducted a 75 minute video interview with the Applicant on 16 June 2023. Dr Kwok appears to have been fulsomely briefed for the purposes of her consultation and report.[97] In her usual thorough way, Dr Kwok took a detailed background history from the Applicant. This involved her summarising the Applicant’s (1) family and personal history; (2) educational history; (3) vocational history; (4) drug and alcohol history; (5) mental health history; (6) relationship history; (7) psychosocial history; (8) offending history; (9) his attitude towards his offending; and (10) long-term goals.
[96] A3.
[97] Ibid, p 2 – 3, [5].
Dr Kwok then conducted a psychological assessment and noted the Applicant’s reporting about the impact of being in immigration detention on his feeling of well-being. She noted that the Applicant appeared concerned about his activities being limited to sleeping, eating and attending his counselling sessions. She noted ‘… he would like to be more productive and have more activities’.[98]
[98] Ibid, p 9, [47].
Dr Kwok then conducted a specific psychometric testing methodology on the Applicant to form a view about whether he met the criteria for a diagnosis of Post-Traumatic Stress Disorder (‘PTSD’). This testing methodology is known as the ‘CAPS-5’ process[99] which is part of the Diagnostic and Statistical Manual of Mental Disorders Fifth Edition (‘DSM-V’). After application of this testing methodology, Dr Kwok opined thus about whether or not the Applicant met the criteria for PTSD:
‘Using the checklist regarding prior exposure to traumatic events, [the Applicant] reported experiences of stressful events in Kenya that could result in traumatic responses. In particular, he indicated that he was exposed to threats of harm and violence at the refugee camp. He did not speak in detail about the sexual assault at the current interview, but he indicated that he has intrusive memories of the incidents. With this background information, the rest of the assessment focused on [the Applicant]’s traumatic experiences in Kenya. It was found that [the Applicant] meets the criteria for PTSD.’[100]
[99] Also known as ‘Clinician-Administered PTSD Scale for DSM-5’.
[100] A3, p 10 [49].
In the briefing letter from the Applicant’s representatives, a series of questions were put to her. In her response to one of those questions, she identified (1) a number of risk factors that need to be addressed to reduce the Applicant’s future recidivist risk; and (2) a few protective factors that reduced his level of recidivist risk. It is worth quoting those factors as they appear In her report:
’68. At the time of [the Applicant’s] offending, there were a number of risk factors that needed to be addressed to reduce his future risk of offending. These include:
• Drug and alcohol abuse
• Unemployment
• Poor coping with a relationship breakdown
• Unstable living (i.e. multiple relocations during the time of juvenile offending)
• Association with antisocial peers
• Inadequate prosocial leisure and recreation activities
• Unaddressed mental health issues
69. There were also a few protective factors that reduced the likelihood of [the Applicant] reoffending, including:
• [the Applicant] does not present as an individual who is inherently antisocial in behavioural pattern or attitudes
• Availability of family support
• Availability of community-based support (although not accessed by the Applicant at the time)
• Availability of mental health and AOD[101] services (although not accessed by the Applicant at the time)’[102]
[101] Alcohol and Other Drug.
[102] A3, p 12 [68]-[69].
Dr Kwok also observed that since the time of the Applicant’s most recent offending in November 2019 ‘… he had engaged in trauma counselling and AOD[103] counselling’.[104] Dr Kwok also observed that the Applicant ‘… has demonstrated a consistent engagement in treatment, and is willing to continue treatment in the community. To my understanding, he is currently in remission of drug alcohol use in a protected environment.’[105]
[103] Alcohol and other drugs.
[104] A3, p 12, [70].
[105] Ibid.
In terms of an actual finding about recidivist risk, Dr Kwok formed this view: ‘[the Applicant] is assessed as having a low risk of re-offending, upon condition that he remains engaged with QPASTT and AOD services in the community and has stable family support’.[106] This conditionality was repeated and stressed by Dr Kwok in areas of her report. [107]Ultimately, Dr Kwok formed this view:
‘If [the Applicant] is permitted to return to the Australian Community, he is recommended to continue engaging with QPASTT for trauma counselling as well as community-based AOD counselling for two years post-release, or as determined by his counsellors on his responsiveness to treatment’.[108]
[My emphasis]
[106] Ibid, p 13, [77].
[107] See for example, the second and fourth bullet-points on p 15 of her report.
[108] A3, p 15, sixth bullet-point.
The evidence of Ms Anna Perry (QPASTT Counsellor)
Ms Perry is a counsellor with over 13 years of experience working with asylum seekers and refugees who report the occurrence of torture and trauma in their lives prior to their arrival in Australia. Ms Perry has furnished a written report dated 29 May 2023[109] and she also provided oral evidence at the instant hearing. In preparing her report, she said she relied on three sources of information: (1) information provided to her on a self-reporting basis by the Applicant; (2) a QPASTT referral document (dated August 2017) submitted by Access Community Services; and (3) a QPASTT referral document (dated June 2021) submitted by IHMS.
[109] A5. Note: Ms Perry has also provided an earlier report dated 7 January 2022.
Ms Perry noted the Applicant ‘… has engaged in 36 out of 43 offered QPASTT appointments, in addition to further engagement during the QPASTT BITA outreach service, and unplanned phone contact’.[110] Ms Perry noted the basis of how the Applicant became involved in illicit drug use and how he has recently sought treatment:
‘[The Applicant] reflected on turning to substance misuse as a method of trying to manage his trauma related symptoms and other contextual stress related to his life in Australia. He has reported that his trauma related memories, together with his increasing levels of stress regarding his legal process, have resulted in an increase in drug use overtime within the BITA in order to “block out” his trauma related memories and feelings of hopelessness and helplessness, preferring to feel “numb”. He has disclosed an interest in seeking professional support for his drug use, and since January 2023 has engaged in support offered through IHMS. This has been explored at length during his fortnightly counselling sessions, where [the Applicant] has described a sense of pride in being able to commit to the treatment, and the positive changes he has observed within himself since doing so; increased sense of control over his thoughts and behaviours including cravings’.[111]
[110] A5, p 2.
[111] Ibid, pp 5 -6.
Ms Perry was of the view that the Applicant should be placed in the ‘least restrictive environment in the community’ in order for him to achieve to the best rehabilitative result from his illicit substance abuse issues:
‘It is strongly recommended [the Applicant] be placed in the least restrictive environment in the community, where he will have access to support from his family, in addition to essential and diverse services to support his health and wellbeing, and specialised AOD support services, such as the LADDERS program, which [the Applicant] has already connected with. A less restrictive environment in the community, which reduces the frequency of his symptom triggers, and allows [the Applicant] to reconnect with his family, and other community based supports, would likely significantly enhance his mental health and recovery from refugee related trauma’.[112]
[112] Ibid, p 7.
This a most curious finding or recommendation which I am hard-pressed to understand. Whatever progress the Applicant may have made occurred in the closed confines and controlled environments of either prison or immigration detention. The last time he was ‘in the least restrictive environment in the community’ saw him almost hopelessly addicted to illicit drugs which in turn predisposed him to involvement in, and commission of, horrendous offending. If it is now suggested by Ms Perry that participation in ‘diverse services’ and ‘specialised AOD support services’ will somehow breach that divide, then any such suggestion (or finding) should, in my respectful view, be approached with great caution.
Perhaps encouragingly (and as a further means of breaching the abovementioned divide), Ms Perry says she will be able to facilitate further engagement with community-based services, should the Applicant tell her he thinks he needs it:
‘If [the Applicant] were released into the community, QPASTT would continue to offer torture and trauma focussed counselling, in addition to connections with the QPASTT youth team for further therapeutic support through youth focussed programs. Should [the Applicant] require the assistance, the author will be able to facilitate engagement with community-based services, including supporting him to his initial appointments and meetings.’ [113]
[113] A5.
As mentioned, Ms Perry also provided oral evidence to the instant hearing. In her evidence in chief, she confirmed as true and correct the content of her abovementioned report dated 29 May 2023.[114] She was cross-examined about her respective reports, the first dated

7 January 2022[115]and her above mentioned second report dated 29 May 2023. She confirmed that it is not within QPASTT’s scope of practice to provide any opinion about the recidivist risk of someone accessing this service.[116] The best that QPASTT can do in this regard is, according to Ms Perry, to ‘… comment on what we have observed about a person’s commitment to engaging in supports’ [117]
[114] Transcript, p 78, lines 36 – 42.
[115] G1, 931 – 938.
[116] Transcript, p 83, lines 32 – 39.
[117] Transcript, 83, lines 41-43.
There followed some questions from me towards Ms Perry. I wanted to understand precisely what kind of service is offered by QPASTT. Ms Perry explained that for someone to qualify as a QPASTT client, it was necessary for QPASTT to be satisfied that the proposed client suffered ‘refugee like torture and trauma experiences.[118] In terms of QPASTT reaching a state of satisfaction about the veracity of a person’s claims of having had such experiences, I wanted to understand from Ms Perry precisely how this occurs. There followed this exchange between me and her:
[118] Transcript, 93, line 15 -16.
‘SENIOR MEMBER: In establishing that background of torture and trauma, how is that established? Does your organisation, for example, conduct research? Do you plug into sources of information from the Department of Foreign Affairs and Trade, for example, or do you primarily rely on what the client - and I’ll call the person the client - on what the client tells you?
MS PERRY: ---So I guess in this case, there was a referral which came through from IHMS, which did note a disclosure of torture and trauma-related experiences and symptoms, so just by way of sharing background, that is how the connection was made with QPASTT.
SENIOR MEMBER: Okay. Your reliance on the claims made by, say, this applicant about experiencing torture and trauma in the past are entirely a construct of what he told IHMS, which in turn is referred to you by IHMS for management by your organisation?
MS PERRY: ---Yes.
SENIOR MEMBER: It all comes from him?
MS PERRY: ---That’s right, and then it’s through the assessment stage of the engagement in particular, which does take place over a number of sessions, where those experiences are further explored. In this case, it has taken quite a bit of time to get a detailed narrative because of how sensitive some of the - the - some of the experiences are very sensitive in nature and have been quite difficult to talk about, so that’s why it’s something that has taken quite some time to get a comprehensive narrative of experiences.
SENIOR MEMBER: But the narrative always comes from the client?
MS PERRY: ---That’s right.’[119]
[My emphasis]
[119] Transcript, p 93, lines 20 – 43.

The Applicant has articulated certain claims to fear harm upon a return to Ethiopia. Those claims indicate to me a potential for Australia’s non-refoulement obligations to possibly be engaged for the purposes of the instant decision. Prior to delving into an identification and assessment of those claims, it is necessary to first review the current state of the law on the question of the extent to which this Tribunal is obligated to involve itself in such a process.
Plaintiff M1/2021
On 11 May 2022, the High Court of Australia – in its decision of M1/2021 v Minister for Home Affairs[219] (‘Plaintiff M1’) turned its mind to the question of whether a decision-maker can, ‘defer’ consideration of Australia’s non-refoulement obligations to a future date or event, such as if the Applicant were to apply for a Protection visa. Prevailing authority militated against any such deferral by a decision-maker even in circumstances where an Applicant were able to seek a Protection visa.[220]
[219] (2022) 400 ALR 417. Date of judgment: 11 May 2022.
[220] Ali v Minister for Home Affairs (2020) 278 FCR 627.
The approach formulated by the High Court in Plaintiff M1 was expressed thus:
‘Decision-makers' approach to non-refoulement
[28] Where the representations do not include, or the circumstances do not suggest, a non-refoulement claim, there is nothing in the text of s 501CA, or its subject matter, scope and purpose, that requires the Minister to take account of any non-refoulement obligations when deciding whether to revoke the cancellation of any visa that is not a protection visa.
[29] Where the representations do include, or the circumstances do suggest, a non-refoulement claim by reference to unenacted international non-refoulement obligations, that claim may be considered by the decisionmaker under s 501CA(4). But those obligations cannot be, and are not, mandatory relevant considerations under s 501CA(4) attracting judicial review for jurisdictional error – they are not part of Australia's domestic law.
[30] Where the representations do include, or the circumstances do suggest, a claim of non-refoulement under domestic law, again the claim may be considered by the decision-maker under s 501CA(4), but one available outcome for the decision-maker is to defer assessment of whether the former visa holder is owed those non-refoulement obligations on the basis that it is open to the former visa holder to apply for a protection visa.’
[Emphasis in original]
In Plaintiff M1, the plurality clarified that consideration of non-refoulement obligations can be deferred where a non-refoulement claim is made or arises on the facts and the person is able to make a valid application for a Protection visa. The decision settles the previously unsettled state of the law on this issue. It confirms that it is permissible for a merits-based decision-maker applying s 501CA(4) of the Act to determine whether the relevant discretion can be exercised to have regard to the fact that a person may make a Protection visa application.
That said, I interpret the plurality in Plaintiff M1 to nevertheless require a merits-based decision-maker’s reasons to demonstrate that non-refoulement claims have been read, identified, understood and evaluated, but does not require that decision-maker to undertake a Protection assessment before considering removal of a non-citizen from Australia. Thus, it may be necessary to take account of alleged or claimed facts underpinning such claims:
·where those alleged facts/claims are relied upon for establishing ‘another reason’ why the cancellation decision under s 501CA should be revoked; or
·where they are relied upon as any other matter relevant to the exercise of the discretion to cancel visas pursuant to s 501.
It may also be necessary to take account of claims that fall outside of the Protection visa framework such as, for example, claims of generalised violence, inadequate healthcare, homelessness, and harm that is not serious or significant.
For the avoidance of doubt, I have interpreted the Applicant’s position to be such that he is making representations that do include, and/or that the circumstances of this case do suggest, a claim of non-refoulement under Australia’s domestic law. I will therefore take account of the alleged facts or claims propounded by this Applicant as engaging non-refoulement obligations Australia may owe him.
I am satisfied that Plaintiff M1 makes it possible for this Tribunal to defer any consideration of whether this Applicant is a person to whom Australia may owe non-refoulement obligations. Be that as it may, I am of the view that this Tribunal should nevertheless engage with the substance of the Applicant’s representations if, for no other reason, than they may be relevant to the exercise of finding another reason why the mandatory cancellation of his Visa should be revoked.
If compelled to return to Ethiopia (if he is found to be an Ethiopian national) the Applicant makes certain claims for protection on the following grounds:
(i)     ‘as a young Oromo man of fighting age;
(ii)    as a young Somali man of fighting age;
(iii)   as a young man of mixed ethnic and national heritage (Oromo and Somali) and
(iv)   of fighting age;
(v)     as a returnee from a Western country, who is notable for a different accent and
(vi)   inability to speak Oromo or Amharic; and
(vii)     as a member of a particular social group of being a person with mental health issues and facing discrimination as a result.’[221]
[221] A1, p 21, [63(a)].
The Applicant has propounded a fair volume of material about the security situation in Ethiopia. This material contains references to a deterioration in the regions of Ethiopia in the last several years. In terms of assessing any risk presented to the Applicant upon a return to Ethiopia, it is, I think both logical and necessary, for this Tribunal to consider the question of precisely where the Applicant might be able to locate himself within Ethiopia if returned there. In this regard, a consideration of the security situation in the capital, Addis Ababa, becomes relevant. In Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 (‘Randhawa’), the Full Court said:
‘Although it is true that the Convention definition[222] of refugee does not refer to parts or regions of a country, that provides no warrant for construing the definition so that it would give refugee status to those who, although having a well-founded fear of persecution in their home region, could nevertheless avail themselves of the real protection of their country of nationality elsewhere within that country. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country. If it were otherwise, the anomalous situation would exist that the international community would be under an obligation to provide protection outside the borders of the country of nationality even though real protection could be found within those borders’. [223]
[My emphasis]
[222] The 1951 United Nations Convention Relating to the Status of Refugees.
[223] At pp 440 – 441.
It follows from the authority of Randhawa that this Applicant may not be a person to whom Australia may owe protection obligations if he is able to reside in an area of the country of origin where he can avail himself of ‘real protection’ due to there being no appreciable risk to him in that specific area. Applied to the present case, that specific area is Addis Ababa which is both the capital and largest city of Ethiopia. The Commonwealth Department of Foreign Affairs and Trade has produced a Country Information Report for Ethiopia (‘DFAT Report’) which is dated 12 August 2020. This report says while ‘The security situation has deteriorated in parts of the country since 2018’ and ‘ethnic militias have proliferated in the states… Addis Ababa has largely [sic] immune from this instability to date’. [224] [My emphasis]
[224] G1, p 489, [2.50].
On the specific issue of the security situation in Addis Ababa, the DFAT Report goes on to say that: ‘… outside of national and state border areas, the government controls the security situation, and Ethiopia tends to be safer than most of its neighbours. DFAT assesses Addis Ababa to be particularly stable, and it continues to attract migrants from other parts of the country in search economic opportunities’.[225] [My emphasis].The DFAT Report refers to a pluralist and inclusive situation in Ethiopia. It says:
‘[3.1] Article 25 of the constitution stipulates all persons are equal before the law and are entitled to equal protection regardless of race, nationality, colour, sex, language, religion, political or other opinion, property, birth or other status..’[226];
‘[3.2] Ethiopia is a multi-ethnic society, and ethnic groups enjoy extensive rights. Under the Ethiopian Constitution every “nation, nationality and people” (a reference to all ethnic groupings Ethiopia) has the right to speak their language and promote their culture. Every nation, nationality and people also has the constitutional right to self-determination, including the right to regional statehood within Ethiopia’s federal system.’ [227]; and
‘[3.3] All major ethnic groups are represented in the federal government and bureaucracy, and political parties represent the interests of Ethiopia’s various ethnic groups. DFAT assesses official discrimination – including systematic, state – sanctioned discrimination, denial of public services and higher detention rates – based on race and/or ethnicity is rare. This assessment is consistent with the constitutional prohibitions on discrimination and reflects the need for governments to maintain their legitimacy through inclusiveness, given Ethiopia’s ethnic diversity. Different ethnic groups have a history of co-existence in Addis Ababa, and discrimination on ethnic groups is not common there… violence based on ethnicity is not common in Addis Ababa…’ [228]
[My emphasis]
[225] Ibid, p 491, [2.59].
[226] Ibid, p 492.
[227] Ibid.
[228] G1, p 492.
With particular reference to the Applicant’s claim to fear harm ‘as a young Oromo man of fighting age’, the DFAT report records that ‘The Oromo people are the single largest ethnic group in Ethiopia, at nearly 35 per cent of the population’.[229] The DFAT report goes on to say that ‘Ethnic Oromos level of political and economic influence has traditionally been incommensurate to their size. Oromos argue they have long been subservient to smaller ethnic groups – a major source of historical frustration. [230] The DFAT Report further ‘… assesses, [that] overall, Oromos face a low risk of official discrimination based on their ethnicity, including with respect to employment in the public sector. DFAT assesses that, excluding in Addis Ababa, Oromos face a moderate risk of violence in areas or states where they constitute a minority. [231] [My emphasis]
[229] Ibid, p 493, [3.5].
[230] Ibid, [3.6].
[231] Ibid, pp 493 – 494, [3.8].
With particular reference to the Applicant’s claim to fear harm ‘as a young Somali man of fighting age’, the DFAT report notes that:
‘the security and human rights situations in ‘Somali State have improved significantly since August 2018, following the resignation and subsequent arrest by the federal government forces of the state president, Abdi Mohamoud Omar (known as Abdi Illey). Abdi was changed with orchestrating human rights violations and stoking ethnic violence leading to mass displacement (the case against him is ongoing). Abdi was replaced as state president by Mustafa Omer, a human rights activist and long-term former UN employee. One source told DFAT that Somali State had experienced “remarkable progress” under Omer, including from a human rights perspective. Prior to April 2018, Somalis with real or imputed links to the ONLF[232] faced a high risk of arbitrary detention and torture. DFAT now assesses this risk to be low. DFAT further assesses Ethiopian Somalis including government critics, face a low risk of official discrimination or violence of ethnic grounds. [233]
[My emphasis]
[232] Ogaden National Liberation Front – an armed insurgency that in 1984, sought secession from Ethiopia.
[233] G1, pp 495 – 496, [3.18] – [3.19].
As to his life more generally in Ethiopia if returned there, the Applicant will be able to practice his religion of choice. The DFAT Report notes
‘…the two largest religious groups, Orthodox Christians, and Muslims, generally respect each other’s right to practice their faith despite some low-level mutual mistrust. Local sources told DFAT that. inter-faith marriage in Addis Ababa is common. DFAT has observed people of different faiths openly attending their respective religious services without facing discrimination or harassment’. [234]
[My emphasis]
[234] Ibid, p 498, [3.30].
Likewise, he will be able to express his political opinion and align himself with a political perspective. The DFAT Report
‘… assesses tolerance for political dissent has increased considerably since April 2018. Opposition political parties are able to organise and operate significantly more freely, particularly in Addis Ababa, and their members face a low risk of harassment, arrest and detention by virtue of their political affiliations and views. DFAT assesses Ethiopians can openly criticise the ruling party’.[235]
[My emphasis]
[235] Ibid, p 500, [3.41].
With particular reference to the Applicant’s claim to fear harm ‘as a returnee from a Western country, who is notable for a different accent and inability to speak Omoro or Amharic’, the DFAT Report notes the following:
‘5.37 The authorities have typically welcomed voluntary returnees to Ethiopia, including, since April 2018, government critics and opponents. DFAT assesses that returnees, including failed asylum seekers and/or government critics and opponents, face a low risk of monitoring, harassment, detention and official discrimination. While the authorities have significant intelligence-gathering capabilities and are likely to be aware of major anti-government protest activity undertaken in other countries and online, DFAT assesses that people who openly criticise the ruling party while they are outside of Ethiopia face a low risk of official harm on their return to Ethiopia.
5.38 DFAT assesses that, under the current federal government, failed asylum seekers face a low risk of harm on their return to Ethiopia, including where they sought asylum on political grounds.’[236]
[My emphasis]
[236] Ibid, pp 518 – 519, [5.37], [5.38].
Having regard to the evidence before the Tribunal, it is difficult to reach any level of satisfaction or certainty that any of the Applicant’s articulated grounds upon which he fears harm can be found to be sustainable to the extent they could now be found to engage any non-refoulement obligations Australia may owe him. His respective ethnicities would not expose him to harm in Addis Ababa. He will have a capacity to practice his faith of choice and to express a political opinion. Even if the Applicant were a failed asylum seeker, the Ethiopian authorities would ‘welcome’ his return and he would face a low risk of harm upon a return to that country.[237]
(3)Statelessness
[237] Remembering, of course, that the Applicant is not actually a failed asylum seeker because he was granted the Visa in 2011.
The Applicant propounds a position of statelessness which he says derives from perceived difficulties he will have to overcome to establish an entitlement to Ethiopian citizenship. The material contains reference to a particular document bearing the title ‘Ethiopian Nationality Proclamation No 378/2023’ which, in essence provides that ‘… any … person shall be an Ethiopian National by descent where both or either of his parent [sic] is Ethiopian’.[238] The Applicant’s father is from Ethiopia and his mother is from Somalia. As conceded in the Applicant’s SFIC, the Applicant is, prima facie entitled to Ethiopian citizenship via his father.[239] The difficulty with readily reaching such a conclusion is that to establish Ethiopian citizenship, the Applicant is required to produce evidence of the identity of himself and his father. The Applicant’s SFIC tells us that ‘Neither the Applicant or his father has an Ethiopian birth certificate, passport or other national identification documents’.[240]
[238] See G1, p 140; see also A1, pp 19 – 20, [53].
[239] A1, p 19, [53].
[240] Ibid, p 20, [54].
On the material presently before the Tribunal, it can be found that it does not contain any formal record from the Ethiopian authorities confirming the Applicant’s Ethiopian citizenship. At the same time, it should also be noted (and it can be safely found) that efforts to establish the Applicant’s Ethiopian citizenship are incomplete. There is little to cavil with a possible scenario where further inquiries could quite realistically give rise to the Applicant’s capacity to establish Ethiopian citizenship which would more readily facilitate his removal to that country. As noted by the Respondent’s representative during argument, the Department would undertake necessary inquiries to establish the status of the Applicant’s Ethiopian citizenship commensurate with taking steps to facilitate his removal.
While the Applicant may make submissions about his likelihood of the Applicant establishing Ethiopian citizenship, the reality is that the Respondent’s Department is yet to engage with the Ethiopian authorities on this issue due to the prolonged nature of these proceedings which, in turn, has meant that any lawfully compelled requirement to remove the Applicant has not arisen to date. It would thus be premature for this Tribunal to make a finding about the Applicant’s capacity to establish Ethiopian citizenship and what, if anything, would flow from that as a consequence of this decision.
(4)Prolonged / Indefinite detention
A further consequence of my decision could involve the Applicant’s prolonged or indefinite detention. I examine this consequence as part of my determination of weight allocable to this Other Consideration (a).[241] As is the case with his Ethiopian citizenship, it is premature to make any definitive finding about the Applicant’s prospects of prolonged / indefinite detention at this stage. That said, I will, out of an abundance of caution, deal with this item because it may arise consequent upon three scenarios. First, it may arise if the Applicant cannot establish citizenship of Ethiopia or any other country; second, it may arise during the currency of any application by the Applicant for a Protection visa; and third, it may arise as a consequence of the Applicant’s failure to secure a Protection visa.
[241]VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921 at [16].
Section 189 of the Act provides that a non-revocation outcome (in relation to the Visa) would result in the Applicant’s continued detention until his removal. Therefore, it can be accepted that a non-revocation outcome in this application could very well extend the Applicant’s time in an immigration detention facility.
Were this Tribunal to affirm the Decision Under Review and the Applicant failed to secure a Protection visa,[242] the likely reality will be that he will remain in immigration detention until another event ends that detention.[243] In terms of such an ‘event’, there are three possible alternatives to either the Applicant’s refoulement or his ongoing detention. They are:
·removal to another country; or
·the Minister exercising their personal discretion under s 195A of the Act to grant the Applicant, ‘another visa’; or
·the Minister exercising their personal discretion under s 197AB of the Act to make a residence determination enabling the Applicant to reside at a specified place in the community, subject to appropriate conditions.
[242]Or he is otherwise found to be stateless.
[243] Of course, it is open to the Applicant to ask for voluntary removal to his country of origin.

While it may be found that (1) a possible outcome for the Applicant from this application is that he will be detained for a period with no chronologically fixed end point and (2) this prospect of prolonged or indefinite detention may weigh in favour of revocation, it is important to properly conduct the weighing exercise referrable to this particular element. Mindful of my above discussion of CRRN, in terms of weight allocable to the element of indefinite detention, it would not be safe to utilise the Applicant’s mere right to apply for a Protection visa as a means of tempering weight allocable to indefinite detention. Unknown and speculative though his prospects of securing a Protection visa may be, I am satisfied (and find) that this element of indefinite detention is of a strong level of weight in favour of this Tribunal setting aside the Decision Under Review and restoring the Applicant’s visa status to remain here.
Conclusion of Other Consideration (a) : Legal consequences of the decision
I have found (1) the Applicant can apply for a protection visa but the mere right to do so does not temper the weight allocable to his prospects of prolonged or indefinite detention; (2) the evidence is inconclusive about the extent to which the Applicant’s claims to fear harm upon a return to Ethiopia may engage any non-refoulement obligations Australia may owe him; (3) the question of his claimed statelessness is yet to be resolved to any satisfactory level of finality; and (4) the element of indefinite detention represents a strong level of weight in the Applicant’s favour. Overall, and with regard to these four components, I allocate a strong level of weight to this Other Consideration (a) in favour of setting aside the Decision Under Review.
Other Consideration (b): Extent of Impediments if removed
This other consideration requires a decision-maker to consider the impediments a non-citizen is likely to face in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country) if they are removed from Australia to their home country. In doing so, a decision-maker is required to take into account:
·the non-citizen’s age and health;
·whether there are substantial language or cultural barriers; and
·any social, medical and/or economic support available to them in that country.
Paragraph 9.2(1)(a): the Applicant is of 22 years of age. There is little or nothing in the material suggestive of him suffering any medical maladies in relation to his physical health. The position can be accepted as being different with regard to his mental health. The material discloses the following:
·in his report dated 16 March 2021,[244] the forensic psychologist Professor James Freeman clinically assessed the Applicant with:
oAlcohol Dependency Disorder (provisional diagnosis) (partial remission in a controlled environment);
oAdjustment Disorder (with anxious distress);
oBelow Average Intelligence (provisional diagnosis);
·in her report dated 7 January 2022[245], Ms Anna Perry from QPASTT noted IHMS’s referral of the Applicant to her contained a reference to ‘… adjustment disorder with anxious mood (date of diagnosis not noted) … prescribed anti-depressant for low mood and anxiety… he is prescribed Olanzapine (dose unknown).
·in her report of 21 June 2023[246], the forensic psychologist, Dr Emily Kwok, opined that the Applicant’s ‘… symptoms meet criteria for Post-Traumatic Stress Disorder (PTSD) with co-morbid depression and anxiety as defined by the Diagnostic and Statistical Manual of Mental Disorders (DSM-5)’.
[244] G1, p 562, [10.2].
[245] G1, p 932.
[246] A3. P 14, [88].
The abovementioned DFAT Report estimates that some 25 million Ethiopians were suffering from some form of mental disorder in 2018. [247] The report further notes that ‘… mental illness carries significant social stigma. Those suffering from mental illness face discrimination in employment, education and housing. [248] Further, ‘…According to the Ethiopian Psychiatric Association, of the 25 million people it estimated were suffering from some form of mental disorder in 2018, less than 10% had received any form of treatment and less than 1 per cent had received specialist care.[249] As against that, the DFAT report says ‘Psychiatric services are offered in most public hospitals, and non-governmental organisations (NGOs) are also active in this field’. [250]
[247] G1, p 485, [2.25].
[248] G1, [2.27].
[249] Ibid, [2.28].
[250] Ibid, [[2.26].
I am therefore satisfied that the Applicant will (1) be able to seek some measure of treatment in Ethiopia for his mental health symptoms but that (2) those support services may not be to the same level and standard as would be available to him in Australia.
Paragraph 9.2(1)(b): It should be acknowledged that the Applicant has not previously resided in Ethiopia and that a level of credence should be allocated to his contention that he does not know of any family connections or ties in that country. To the extent he has spent time with his parents in this country, it would not be unsafe to suggest (and find) that they will have probably instilled some measure of Ethiopian cultural norms in him. But this is not the same as the Applicant having, for example, spent the first half of his life in Ethiopia. Linguistically, the Applicant speaks Somali, English, and a small amount of Amharic. Fortuitously for the Applicant, the DFAT report notes that ‘English is widely taught and spoken’. [251]
[251] G1, p 481, [2.7].
It is more likely than not that the Applicant would face language and cultural barriers upon removal to Ethiopia but that such barriers would not be, for a person of the Applicant’s aged and disposition, insurmountable.
Paragraph 9.2(1)(c): this sub-paragraph looks for any social, medical and/or economic support available to the Applicant in Ethiopia. There is little to cavil with the proposition that the DFAT report does speak to specific developmental gains made by Ethiopia over the last 5 -10 years. It is, in my respectful view, a country with more than just a cursory pretence towards inclusive, pluralistic and diverse governance. True it may be that these elements are not at the level or stage the Applicant has come to know in this country, but nor can it be said that they are entirely absent from the demographic landscape of Ethiopia. The Applicant will experience an absence of social support in the form of assistance from friends and relatives who could, for example, facilitate short-term accommodation for him. Similarly, the extent of his access to publicly available healthcare support and government ‘safety net’ benefits will not be to the same extent or level to that which he has come to know in Australia.
Conclusion of Other Consideration (b): Extent of impediments if removed
I am of the view that the state of the evidence referrable to sub-paragraphs 9.2(1)(a), (b) and (c) of the Direction, a strong level of weight is allocable to a finding that this Tribunal should set aside the Decision Under Review.
Other Consideration (c): Impact on victims
In their respective written submissions,[252] the parties are ad idem that this Other Consideration is not relevant to the instant determination and that it should otherwise carry neutral weight. Their respective positions did not change during oral argument. I agree with the respective positions of the parties in relation to Other Consideration (c).
[252] A1, p 25 [69]; Exhibit R1, p 16 [77].
Other Consideration (d): Impact on Australian business interests
In their respective written submissions,[253] the parties are ad idem that this Other Consideration is not relevant to the instant determination and that it should otherwise carry neutral weight. Their respective positions did not change during oral argument. I agree with the respective positions of the parties in relation to Other Consideration (d).
Other Consideration (e): A further contention raised by the Applicant about Australia’s compliance with International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration of Human Rights (UDHR)
[253] A1, p 25 [70]; Exhibit R1, p 16 [77].
The Applicant further contends[254] that his prospects of prolonged or indefinite detention should be found to violate two particular instruments. They are (1) the ICCPR and (2) the UDHR. Violation of these instruments would, says the Applicant, cause ‘the Australian Government [to risk] reputational damage and is going against the principals [sic] of good governance if the Reviewable Decision is affirmed…’[255]
[254] A1, p 26, [71]-[77].
[255] Ibid, [77].
The Applicant refers to an Opinion[256] suggesting ‘de-facto indefinite detention…is contrary to the obligations that Australia has undertaken under International law and to Article 9 of the ICCPR in particular’.[257] The Applicant goes on to say that this Opinion ‘….also found that mandatory immigration detention is arbitrary and violates Article 2,3,7-9 and 14 of the UDHR.’[258] No substantial argument was developed by the Applicant by reference to these instruments as to why the Applicant’s indefinite or lengthy detention as a result of an adverse outcome for him in the instant application would place Australia in breach of either of the two aforementioned instruments.[259] The high point of any argument was to suggest ‘the Applicant’s circumstances are not distinguishable from those which the Opinions[sic] were issued’.[260]
[256] Opinion No. 74/2018 concerning Ahmad Shalikan (UN DOC A/HRC/WGAD/2018/74).
[257] See A1, p 25, [74].
[258] Ibid.
[259] BNGP v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 111 at [90].
[260] A1, p 25, [76].
I have earlier found that a consequence of my decision could involve the Applicant’s prolonged or indefinite detention. Be that as it may, in the context of this Applicant’s migration status, no circumstance has yet crystallised such as to give rise to or mandate his placement in detention for a prolonged or indefinite period. All that is presently known is that if such a circumstance did arise, the Applicant would be detained for such a period. I am not satisfied that prolonged or indefinite detention would automatically breach Australia’s international obligations in such a circumstance. While such a breach may be reasonably arguable, it is by no means certain that prolonged or indefinite detention would result in any such breach. To the extent any such breach was found by a court of competent jurisdiction, such detention would not continue. There is no authoritative final ruling before this Tribunal about whether or not such detention would result in any such breach.[261] Until such an outcome is known, this contention should be put to one side and rendered neutral for present purposes.
[261] SCDZ v Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 4442 at [179] and [182].
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
·Other Consideration (a): legal consequences of the decision: is of strong weight in favour of setting aside the Decision Under Review;
·Other Consideration (b): extent of impediments if removed: is of strong weight in favour of setting aside the Decision Under Review;;
·Other Consideration (c): impact on victims: is of neutral weight;
·Other Consideration (d): impact on Australian business interests: is of neutral weight;
·Other Consideration (e): A further contention raised by the Applicant about Australia’s compliance with ICCPR and the UDHR is of neutral weight.
CONCLUSION
Under s 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 that there is another reason, pursuant to the Direction, to revoke the mandatory cancellation of the Applicant’s Visa. As noted 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 s 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: carries very heavy weight in favour of affirming the Decision Under Review;;
·Primary Consideration 2: is of neutral weight;
·Primary Consideration 3: carries moderate weight in favour of setting aside the Decision Under Review ;
·Primary Consideration 4: carries moderate weight in favour of setting aside the Decision Under Review ;
·Primary Consideration 5: carries very heavy 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 weights I have allocated to Primary Considerations 1 and 5 are sufficient to outweigh the combined weights I have allocated to Primary Considerations 3 and 4 and Other Considerations (a) and (b).
A holistic application of the considerations in the Direction therefore militates in favour of this Tribunal finding that 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), the Tribunal affirms the decision dated 12 January 2021 made by a delegate of the Respondent to not revoke the mandatory cancellation of the Applicant’s Class XB Subclass 200 – Refugee visa.

I certify that the preceding 239 (two hundred and thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

...............[SGD]............
Associate
Dated: 6 October 2023

Date(s) of hearing: 24 and 25 July 2023; 10 August 2023

Solicitors for the Applicant: Ms Alison Battisson(Director and Principal)

Human Rights for All Pty Ltd

Solicitor for the Respondent: Mr David McLaren(Senior Associate)

Minter Ellison Lawyers
ANNEXURE A

EXHIBIT

DESCRIPTION OF EVIDENCE

DATE OF DOCUMENT

DATE RECEIVED

G1

Remittal Bundle (Volumes 1-3, paged 1-1487)

·     Volume 1 – paged 1-253;

·     Volume 2 – paged 254-904;

·     Volume 3 – paged 905-1487.

Various

15 May 2023

R1

Respondent’s Statement of Facts, Issues and Contentions (paged 1-23)

·     Attachment 1 – Direction 99; and

·     Attachment 2 – Ethopia Travel Advisory (6 pages)

13 Jul 2023

13 Jul 2023

A1

Applicant’s Statement of Facts, Issues and Contentions (paged 1-28)

Undated

28 Jun 2023

A2

Statutory Declaration of the Applicant (paged 1-6)

28 Jun 2023

3 Jul 2023

A3

Psychologist Report of Dr Emily Kwok (paged 1-15)

21 Jun 2023

28 Jun 2023

A4

International Health and Medical Services Health (‘IHMS’) Summary Report for Commonwealth Ombudsman (9 pages)

8 Feb 2023

28 Jun 2023

A5

QPSATT Confidential Report (8 pages)

29 May 2023

28 Jun 2023

A6

Combined Clinical Records (paged 1-433)

Various

28 Jun 2023

A7

Applicant’s List of Absences (paged 1-6)

23 May 2023

28 Jun 2023

A8

Student Report from Woodridge State High School – End of Semester 2 (4 pages)

8 Dec 2014

28 Jun 2023

A9

Statutory Declaration of Ms SM (paged 1-6)

Undated

3 Jul 2023

A10

Statutory Declaration for Mr JM (paged 1-6)

Undated

3 Jul 2023

A11

Medical Report from Kuraby Wellness Centre – signed by Dr Syed Alam (paged 1-2)

3 Mar 2023

28 Jun 2023

A12

Video testimony of Child I (28 seconds in length)

Undated

28 June 2023

A13

Video testimony of Child L (25 seconds in length)

Undated

28 Jun 2023

A14

Video testimony of Child T (25 seconds in length)

Undated

28 Jun 2023

A15

Photo of Child Ty

Undated

28 Jun 2023

A16

UNHCR Humanitarian Response Plan Ethiopia (paged 1-105)

Jul 2023

28 Jun 2023

A17

UNHCR Citizenship and Statelessness in the Horn of Africa (paged 1-88)

Dec 2021

28 Jun 2023

A18

US Department of State Report – Ethiopia 2022 Human Rights Report (paged 1-56)

Undated

28 Jun 2023

A19

Amnesty International, Ethiopia 2022 Report (paged 1-5)

Undated

28 Jun 2023

A20

Human Rights Watch World Report Ethiopia 2022 (paged 1-8)

Undated

28 Jun 2023

A21

Smart Traveller Ethiopia (paged 1-19)

18 Apr 2023

28 Jun 2023

A22

Ethiopian Citizenship Law (11 pages)

20 Oct 2004

28 Jun 2023

A23

Map of the regions and zones of Ethiopia (paged 1)

9 Jul 2017

28 Jun 2023

A24

Journal Article ‘Availability, Price and Affordability of Psychotropic Medicines in Addis Ababa, Ethiopia’ (paged 1-12)

22 May 2023

28 Jun 2023

A25

Journal Article ‘Mental health stigma and discrimination in Ethiopia: evidence synthesis to inform stigma reduction interventions’ (paged 1-2)

23 Jun 2023

28 Jun 2023

A26

Human Rights Council – Working Group on Arbitrary Detention: Opinions adopted by the Working Group on Arbitrary Detention at its ninety-sixth session (paged 1-15)

11 May 2023

28 Jun 2023

A27

‘Inside Australia’s “powder keg” private prison’(8 pages)

20 Jun 2018

28 Jun 2023

A28

Office of the Chief Inspector - Taskforce Flaxton – Arthur Gorrie Correctional Centre Snapshot Inspection Report 2017 (paged 1-55)

10, 11 and 13 Jul 2023

28 Jun 2023

A29

Letter of support by Mr AM (1 page)

Undated

3 Jul 2023

A30

Letter of Support from Mr MM (1 page)

19 Jul 2023

19 Jul 2023

A31

Ministerial Intervention Guidelines (paged 1-8)

25 Mar 2023

19 Jul 2023

A32

Correspondence between Fisher Dore Lawyers and Human Rights For All (paged 1-4)

26 Jun 2023

19 Jun 2023

A33

Working Group on Arbitrary Detention (paged 1-77)

10 Feb 2023

19 Jul 2023

A34

Column: How ‘social air bags’ for rich kids exacerbate unequal opportunity (paged 1-5)

17 Mar 2015

19 Jul 2023

R2

Letter of Instruction for Expert Forensic Report by Dr Emily Kwok (paged1-7)

9 June 2023

25 Jul 2023

R3

Statutory Declaration dated 6 August 2023

10 Aug 2023

10 Aug 2023

R4

Statutory Declaration dated 7 August 2023

10 Aug 2023

10 Aug 2023

Court	Date	Offence	Sentence
Queensland District Court	July 2020	Robbery armed/in company/wounded/used personal violence	Conviction recorded Imprisonment: 4 years To be suspended for: 4 years After serving 10 months
		Robbery armed in company	Conviction recorded Imprisonment: 3 years To be suspended for: 4 years After serving: 10 months Served concurrently
		Common Assault (three charges) Assaults occasioning bodily harm whilst armed/in company Stealing	Conviction recorded Probation period: 2 years
		Summary offences heard by the District Court Stealing (2 charges) Unlawful use of motor vehicle, aircraft or vessel – use	Conviction recorded Probation period: 2 years : indictment no. 1353/20)
		Failure to Appear in accordance with undertaking	Conviction recorded Not further punished
Queensland Magistrates Court	October 2019	Possess tainted property	Conviction recorded Fined: $450
Queensland Magistrates Court	May 2019	Contravene direction or requirement	No conviction recorded Fined: $350
Queensland Childrens Court	February 2019	Enter dwelling with intent by break at night Receiving tainted property	No conviction recorded Probation period: 3 months
Queensland Childrens Court	June 2017	Assault or obstruct police officer Possess utensils or pipes etc for use Fraud – dishonest application of property of another (2 charges) Attempted fraud – dishonest application of property of another Possession of a knife in public place or school Unlawful possession of suspected stolen property Assaults occasioning bodily harm Stealing from the person	No conviction recorded Probation period: 6 months
Queensland Childrens Court	July 2016	Fraud – dishonestly obtains property from another Attempted fraud – dishonestly gain benefit/advantage Burglary and commit indictable offence Fraud – dishonest application of property of another	No conviction recorded Reprimanded

Date(s) of hearing:	24 and 25 July 2023; 10 August 2023
Solicitors for the Applicant:	Ms Alison Battisson(Director and Principal)
Human Rights for All Pty Ltd
Solicitor for the Respondent:	Mr David McLaren(Senior Associate)
Minter Ellison Lawyers

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
G1	Remittal Bundle (Volumes 1-3, paged 1-1487) · Volume 1 – paged 1-253; · Volume 2 – paged 254-904; · Volume 3 – paged 905-1487.	Various	15 May 2023
R1	Respondent’s Statement of Facts, Issues and Contentions (paged 1-23) · Attachment 1 – Direction 99; and · Attachment 2 – Ethopia Travel Advisory (6 pages)	13 Jul 2023	13 Jul 2023
A1	Applicant’s Statement of Facts, Issues and Contentions (paged 1-28)	Undated	28 Jun 2023
A2	Statutory Declaration of the Applicant (paged 1-6)	28 Jun 2023	3 Jul 2023
A3	Psychologist Report of Dr Emily Kwok (paged 1-15)	21 Jun 2023	28 Jun 2023
A4	International Health and Medical Services Health (‘IHMS’) Summary Report for Commonwealth Ombudsman (9 pages)	8 Feb 2023	28 Jun 2023
A5	QPSATT Confidential Report (8 pages)	29 May 2023	28 Jun 2023
A6	Combined Clinical Records (paged 1-433)	Various	28 Jun 2023
A7	Applicant’s List of Absences (paged 1-6)	23 May 2023	28 Jun 2023
A8	Student Report from Woodridge State High School – End of Semester 2 (4 pages)	8 Dec 2014	28 Jun 2023
A9	Statutory Declaration of Ms SM (paged 1-6)	Undated	3 Jul 2023
A10	Statutory Declaration for Mr JM (paged 1-6)	Undated	3 Jul 2023
A11	Medical Report from Kuraby Wellness Centre – signed by Dr Syed Alam (paged 1-2)	3 Mar 2023	28 Jun 2023
A12	Video testimony of Child I (28 seconds in length)	Undated	28 June 2023
A13	Video testimony of Child L (25 seconds in length)	Undated	28 Jun 2023
A14	Video testimony of Child T (25 seconds in length)	Undated	28 Jun 2023
A15	Photo of Child Ty	Undated	28 Jun 2023
A16	UNHCR Humanitarian Response Plan Ethiopia (paged 1-105)	Jul 2023	28 Jun 2023
A17	UNHCR Citizenship and Statelessness in the Horn of Africa (paged 1-88)	Dec 2021	28 Jun 2023
A18	US Department of State Report – Ethiopia 2022 Human Rights Report (paged 1-56)	Undated	28 Jun 2023
A19	Amnesty International, Ethiopia 2022 Report (paged 1-5)	Undated	28 Jun 2023
A20	Human Rights Watch World Report Ethiopia 2022 (paged 1-8)	Undated	28 Jun 2023
A21	Smart Traveller Ethiopia (paged 1-19)	18 Apr 2023	28 Jun 2023
A22	Ethiopian Citizenship Law (11 pages)	20 Oct 2004	28 Jun 2023
A23	Map of the regions and zones of Ethiopia (paged 1)	9 Jul 2017	28 Jun 2023
A24	Journal Article ‘Availability, Price and Affordability of Psychotropic Medicines in Addis Ababa, Ethiopia’ (paged 1-12)	22 May 2023	28 Jun 2023
A25	Journal Article ‘Mental health stigma and discrimination in Ethiopia: evidence synthesis to inform stigma reduction interventions’ (paged 1-2)	23 Jun 2023	28 Jun 2023
A26	Human Rights Council – Working Group on Arbitrary Detention: Opinions adopted by the Working Group on Arbitrary Detention at its ninety-sixth session (paged 1-15)	11 May 2023	28 Jun 2023
A27	‘Inside Australia’s “powder keg” private prison’(8 pages)	20 Jun 2018	28 Jun 2023
A28	Office of the Chief Inspector - Taskforce Flaxton – Arthur Gorrie Correctional Centre Snapshot Inspection Report 2017 (paged 1-55)	10, 11 and 13 Jul 2023	28 Jun 2023
A29	Letter of support by Mr AM (1 page)	Undated	3 Jul 2023
A30	Letter of Support from Mr MM (1 page)	19 Jul 2023	19 Jul 2023
A31	Ministerial Intervention Guidelines (paged 1-8)	25 Mar 2023	19 Jul 2023
A32	Correspondence between Fisher Dore Lawyers and Human Rights For All (paged 1-4)	26 Jun 2023	19 Jun 2023
A33	Working Group on Arbitrary Detention (paged 1-77)	10 Feb 2023	19 Jul 2023
A34	Column: How ‘social air bags’ for rich kids exacerbate unequal opportunity (paged 1-5)	17 Mar 2015	19 Jul 2023
R2	Letter of Instruction for Expert Forensic Report by Dr Emily Kwok (paged1-7)	9 June 2023	25 Jul 2023
R3	Statutory Declaration dated 6 August 2023	10 Aug 2023	10 Aug 2023
R4	Statutory Declaration dated 7 August 2023	10 Aug 2023	10 Aug 2023