LRMM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

LRMM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 923 (7 April 2021)
Division: GENERAL DIVISION
File Number: 2021/0321
Re:LRMM
APPLICANT

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

DECISION
Tribunal:Member Rebecca Bellamy

Date of decision: 7 April 2021
Date of written reasons: 16 April 2021
Place:Brisbane

The decision under review is affirmed.
.........................[SGD]...............................................
Member Rebecca Bellamy
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Refugee (Class XB)(Subclass 200) visa - where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – consideration of Australia’s international non-refoulement obligations – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Home Affairs v Omar [2019] FCAFC 188
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
SECONDARY MATERIAL
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member Rebecca Bellamy
16 April 2021
THE ISSUE BEFORE THE TRIBUNAL

The Applicant is a 20-year-old citizen of Ethiopia. In November 2012, when he was 11 years old, he moved to Australia. The most recent visa granted to him was a Refugee (Class XB) (Subclass 200) visa (“visa”).[1]
[1] Exhibit G1, Section 501 G Documents, G4, page 14.
On 10 August 2020, a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test and he was serving a full time custodial sentence.[2] On 16 August 2020, the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”).[3] On 12 January 2021, the Respondent decided not to revoke the cancellation.[4]
[2] Ibid, G10, pages 41 to 47.
[3] Ibid, G13 pages 51 to 52.
[4] Ibid, G3 page 13.
The Applicant subsequently lodged an application for review in this Tribunal on 21 January 2021.[5] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
[5] Ibid, G1 pages 1 to 6.
The hearing of this application proceeded on 22 and 23 March 2021. The Applicant gave evidence via videoconference. The Applicant’s mother, father and the carer of one of the Applicant’s siblings also gave evidence by videoconference. Professor James Freeman gave evidence by telephone. The Tribunal received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
4The 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. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[6]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[7]
[6] [2018] FCAFC 151.
[7] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[8]
[8] Ibid.
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 29 July 2020, the Applicant was sentenced a term of imprisonment of four years, to be suspended for four years after serving 10 months. What matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they have actually served.[9] Accordingly, there is no doubt that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. He cannot rely on

s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
[9] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416.
Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 79 – visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) has application.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 6.3 of the Direction contains several principles that must inform a decision maker’s application of the considerations in paragraphs 7 and 8.
Paragraph 7(1) of the Direction provides that:
Informed by the principles in paragraph 6.3 above, a decision-maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[10]
[10] The Direction, sub-paragraph 7(1)(b).
Paragraph 8(1) of the Direction provides that:
Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse or grant a visa to a visa Applicant, cancel the visa of the visa holder, or revoke the mandatory cancellation of the visa. These different considerations are articulated in Parts A, B and C...
Part C provides for the decision-maker to take into account “Primary Considerations”[11] and “Other considerations”.[12] The Primary Considerations are set out in paragraph 13.(2) of the Direction (contained in Part C) and they are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
[11] The Direction, paragraph 13.
[12] The Direction, paragraph 14.
The Other Considerations are set out in paragraph 14(1) of the Direction (contained in Part C) and they are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[13]
“…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[14]
[13] [2018] FCA 594.
[14] Ibid, [23].
BACKGROUND AND OFFENDING
The Applicant was born in 2001 in a refugee camp in Kenya where his parents met each other.[15] His father was born in Ethiopia and is of the Oromo tribe. His mother was born in Somalia. She already had a child and was pregnant with another. Her first husband had been killed. She and the Applicant’s father went on to have the Applicant and several other children in the camp. The Applicant has an older step-sister and a nephew (her son), an older step-brother, two sister and five brothers.[16]
[15] Exhibit G1, Section 501 G-documents, G14 page 55.
[16] Exhibit A5, Statement of the Applicant, paragraphs 28 to 29.
The Applicant and his family emigrated to Australia after they were granted Refugee (Class XB) (subclass 200) visas in August 2012.[17] They arrived in Brisbane in November 2012 when the Applicant was 11 years old.
[17] Exhibit G1, Section 501 G-documents, G9 page 41.
The Applicant started drinking alcohol after being introduced to it by some older children at his high school with whom he was friends.[18] He had started associating with a large group of older students, around 20 to 30 in total, and drinking with them regularly and would sometimes miss school to do this. He saw it as having a group of friends watching out for him.[19] He thought these people were “cool” because “they used to hang around with me drinking and smoking with them”.[20] The Applicant also smoked marijuana with these people, normally at parties.[21]
[18] Transcript, page 12.
[19] Exhibit A5, Statement of the Applicant, paragraphs 44 to 49.
[20] Transcript, page 13, lines 14 to 20.
[21] Exhibit A5, Statement of the Applicant, paragraph 52.
The Applicant left school after only attending for one or two years.[22] There followed several years when he was not studying or working.[23] According to him, his parents told him to go to school but he ignored them.[24]
[22] Transcript, page 41, lines 24 to 25.
[23] Transcript, page 43, lines 13 to 29.
[24] Transcript, page 43, lines 35 to 44.
When the Applicant was 14, his father moved out of the family home due to conflict with the Applicant’s step-brother who was using drugs. However, he lived within walking distance of the family home. The Applicant went to live with his father. One of his brothers, who is disabled, also lived with his father. His other siblings, including a sibling with Down Syndrome remained with his mother. According to the Applicant’s mother, he spent time during the day at her home and slept at his father’s home.[25]
[25] Transcript, page hundred and 10, lines 5 to 15.
The Applicant hid his drinking from his parents and would stay overnight at a friend’s house around once per week so he could drink without his parents finding out. He would phone his father and tell him he was safe.[26] His mother once thought she smelt alcohol on the Applicant but he told her it was from an energy drink.[27] The Applicant and his friends committed crimes so they could buy alcohol.[28]
[26] Transcript, page 13, line 34; page 14, line 39.
[27] Exhibit A3, Statement of the Applicant’s Mother; Transcript page 102, lines 41 to 45.
[28] Transcript, page 15, lines 17 to 29.
The Applicant commenced offending in 2014 while he was still a minor. He committed some 28 offences and numerous traffic infringements over the course of five years.
In August 2014, when he was 13 years old, the Applicant committed wilful damage and received a caution from police.[29] Between 25 and 26 December 2015, he committed six property offences (detailed below) and was cautioned. The Applicant committed 19 offences in a period of two years between 2016 and 2018 (some detailed below). The offences included fraud and attempted fraud, stealing, receiving tainted property, burglary, possess utensils or pipes etc for use, possess of a knife in a public place or school, assault or obstruct police, assault occasioning bodily harm, enter dwelling with intent by break at night and traffic offences. The Applicant was dealt with for all of these offences by the Children’s Court in three separate sentencing episodes - in July 2016, June 2017 and February 2019. He was sentenced variously to a reprimand, fines and two probation periods of six months and three months respectively. The court declined to record convictions.
[29] Exhibit R2, Respondent’s Supplementary Documents, pages 91 to 92.
On 11 April 2015, the Applicant was granted bail by the Children’s Court conditional upon him resided at his parents’ home and adhering to a curfew requiring him to be at home between 6pm and 6am unless accompanied by parent. At the hearing, the Applicant’s parents claimed to have had no knowledge of the curfew. At 8.30pm on 19 April 2016, police discovered the Applicant outside a Domino’s Pizza shop in the company of two other “well-known young property offenders”. At 8.15pm on 30 April 2016, police spoke with the Applicant regarding train fare evasion and their checks identified that he was breaching his curfew.[30]
[30] Exhibit R2, Respondent’s Supplementary Documents, page 84
As a result, he was detained at a youth detention centre to appear in court on 3 May 2016. The Applicant said that neither of his parents were aware of his detention. He told his step-brother where he was and asked him not to tell his parents, just to tell them that he was safe.[31] The Applicant was living with his father at the time and at the hearing his father said he was not aware that the Applicant had been detained. The Applicant was 14 years old at this time.
[31] Transcript, pages 93 to 94.
Between 25 and 26 December 2015, the Applicant committed six property offences including receiving tainted property, enter premises and commit indictable offence, enter premises and commit indictable offence by break (x 2), enter premises with intent to commit indictable offence and possess thing intended for use in connection with a break and enter offence. He and his friends were breaking into people’s homes on the evening and night of Christmas. He said they did it to “get some stuff to buy some drinks and stuff and clothes”.[32] He was cautioned for these offences and his father came to the police station to have the Applicant’s fingerprints taken.[33] The Applicant said that he concealed from his father the fact that he had been stealing and told him that “I got done with something that wasn’t mine”.[34] He said his father waited in the waiting room and he does not recall the police speaking to his father. The Applicant initially said that he and his friends targeted homes that were empty, but he also said that they were looking for wallets and bags. When it was put to him that people normally take their wallets with them when they leave their home and he was asked if there were people home in some of the houses that he burgled he admitted that he did not know whether people were home in the houses he burgled, saying it was dark because it was night-time.[35]
[32] Transcript page 37, lines 10 to 11.
[33] Transcript, page 38, line 25 to page 39, line 25.
[34] Transcript, page 39, lines 29 to 42.
[35] Transcript, pages 36 to 40.
On 1 December 2016, the Applicant was caught driving without a license.[36] He gave a false name to the police and was subsequently convicted of assault or obstruct police officer in addition to the infringement for driving unlicensed. His father, in a written statement, recalled going to court with the Applicant some years ago when he got into trouble,[37] and when he was asked about this, he said he thought it was for unlicensed driving.
[36] Exhibit R2, Respondent’s Supplementary Documents, page 212.
[37] Exhibit A4, Statement of the Applicant’s Father.
On 7 December 2016, the Applicant committed assaults occasioning bodily harm and stealing. He recalled that he was with a friend who, in the course of taking a phone from a person who owed him money, ripped that person’s pocket. The Applicant was “backing him up in case anything happened”.[38]
[38] Transcript, page 52, lines 13 to 39; page 98, lines 15 to 16.
On 16 December 2016, the Applicant was caught in possession of a pipe. He said it was not his but he took the blame. He had gone to a police station with an associate who was reporting for parole. The associate gave his bag to the Applicant and the Applicant waited outside. He did not know it contained a pipe. The Applicant was wanted in relation to fraud offences at the time (although he did not know that) and the police found the pipe.[39]
[39] Transcript, pages 47 to 48.
A conditional bail program proposal for the Applicant, dated 21 December 2016,[40] includes the following under the heading “Therapeutic Intervention”:
·[the Applicant] disclosed that he only smokes cigarettes and denies engaging in any form of substances. However, information provided from [the Applicant’s father] and [the Applicant’s older brother] suggest that [the Applicant] has had involvement with methamphetamines (ice), marijuana and alcohol via his engagement with his step siblings in the care of [the Applicant’s mother].
·[The Applicant] advised that he considers himself to be a person who is not easily angered however, has the tendency to become verbally and physically aggressive due to feeling victimised. [The Applicant’s father] indicates that [the Applicant] would often resort to aggressive behaviours as a means of dealing with his frustration when he is being bullied by others.
[40] Exhibit R2, Respondent’s Supplementary Documents, pages 120 to 125.
In the hearing, the Applicant admitted that when he had denied engaging in any form of substances he had been lying.[41]
[41] Transcript, page 76, lines 10 to 20.
The Applicant’s father gave evidence that when he gave that information, he was not reporting that the Applicant had become involved with drugs via his step-siblings, but that he was worried that the Applicant would be influenced by his older step-brother who he believed used drugs.[42]
[42] Transcript, pages 123 to 125.

In the hearing, the Applicant agreed with the statement that he has a tendency to become verbally and physically aggressive. When the Applicant’s father was asked about his report that the Applicant would often resort to aggressive behaviours, he said he did sometimes resort to fighting.[43] He later said the Applicant “might just get angry with himself” and he had never seen the Applicant hit anyone or fighting.[44] This does not make sense in light of his earlier evidence, and it struck me as an attempt to water down that evidence. I find that the Applicant’s father reported in 2016 that the Applicant engaged in aggressive behaviour and that he did so because that was true and that those aggressive behaviours involved fighting.
[43] Transcript, page 125, lines 37 to 48.
[44] Transcript, page 126, lines 1 to 6.
On 13 May 2017, the Applicant was caught in unlawful possession of stolen property, being two ladies’ rings. He initially told the Tribunal he was merely holding them for a friend, but he subsequently admitted that his friend had given them to him after he asked for them.[45] He was also caught in possession of a knife in a public place. He said it was a pocketknife that he was carrying in case “something happened” because he was by himself and that it was only to scare people away.[46]
[45] Transcript, page 51.
[46] Transcript, page 49, line 42 page 50, line 35.
In August and September 2018, the Applicant and some associates broke into the homes of residents in retirement villages. With respect to the first offence, “enter dwelling with intent by break at night” in August 2018, the Applicant entered a home through an unlocked door. The female resident woke up and upon seeing a male figure standing in the doorway of her bedroom she “screamed loudly” and shouted words to the effect of “get out”.[47] The police were called and located the Applicant and two other males walking down a nearby road. One of the co-offenders was found in possession of an iPad and a set of car keys from the property.
[47] Exhibit R2, Respondent’s Supplementary Documents, page 142.
In September 2018, the Applicant and some other co-offenders entered another home in a different retirement village. They stole a large amount of property including car keys. They then used the car keys to steal the victim’s vehicle. At the time of the offence the 84-year-old victim was home and asleep.[48] The police later retrieved CCTV footage of four males walking inside the retirement village at the time of the offence. The next day the Applicant was intercepted by police in the front passenger seat of the stolen vehicle. He ran from police but was tracked down and arrested and charged with receiving tainted property. He was later convicted and sentenced to three months’ probation for these offences.
[48] Ibid, page 143.
In the hearing the Applicant denied that he and his friends specifically targeted retirement villages, stating at the time he did not realise the homes they broke into were in retirement villages.[49] I find this quite implausible given the fact that they entered into two different retirement villages in different suburbs in a short period.
[49] Transcript, page 54, line 30 to page 58, line 21.
The Applicant has also committed some traffic offences in Australia. He was caught driving without a license on two occasions in 2016 and 2018. On the second occasion he was caught driving an unregistered and uninsured vehicle that had a stolen number plate. According the police facts,[50] the police observed a vehicle driving towards them on the wrong side of the road with one headlight. The vehicle then parked up on the side of the road facing the wrong direction. The Applicant subsequently identified himself as the driver and confirmed he did not hold (and had never held) a driver’s license. The Applicant stated he had bought the vehicle with the number plate earlier in the day. He denied knowing the vehicle was unregistered and that the number plate was stolen.
[50] Exhibit R2, Respondent’s Supplementary Documents, pages 143 to 144.
The Applicant had a girlfriend called Nikki for around a year, starting in 2018 and ending in November 2019. He described the relationship as serious. He said that Nikki did not get into trouble with the police or have any issues with alcohol or drugs. The Applicant said she was a good influence on him, she used to help him apply for jobs, and while he was with her he reduced his alcohol intake so that he was drinking weekly rather than every day. He found it difficult to reduce his drinking but she helped him. While he was with Nikki, he saw less of his friends. Nikki did not approve of these friends and he only saw them once or twice a week. She was normally with him when he saw them.[51] However, the Applicant continued to offend during the year he was dating Nikki.
[51] Transcript, page 16, line 29 to page 18, lines 1 to 4. A5, paragraphs 62 and 65.
On 11 April 2019, the Applicant contravened a police direction or requirement. The police had responded to a report of people throwing rubbish around outside shops. They asked the Applicant to provide his name and to move on. The Applicant refused and was warned that he would be arrested. Upon being placed under arrest he became verbally aggressive and called the police racist several times. He was taken to the police station and was again directed to state his name. He again refused, only telling police to “shut the fuck up”.[52] He engaged in this behaviour while on probation for the break and enter offences at the two retirement villages. At the hearing, the Applicant said he refused to obey the police because he was “getting a smoke” outside the shop and had done nothing wrong.[53] The Applicant said he was not affected by alcohol on this occasion.[54] On7 May 2019 he was fined for this offence.
[52] Exhibit R2, Respondent’s Supplementary Documents, page 13.
[53] Transcript, page 59, line 12 page 60, line 7.
[54] Transcript, page 90, lines 32 to 36.
On 3 September 2019, the Applicant was caught in possession of property reasonably suspected of being tainted property. The property was a set of registration plates that had been stolen a week previously. They were on a vehicle being driven by the Applicant. The Applicant told the police that he had just bought the vehicle the day before and the plates were on the vehicle when he bought it. However, he was unable to provide any evidence that he had purchased the vehicle.[55] By way of explanation, at the hearing, the Applicant said he had a car without any plates on it so he put plates on it in order to drive it around. When asked where he found the number plates, he said “Take it off other people’s cars”.[56] On 17 October 2019, he was fined for this offence.
[55] Exhibit R2, Respondent’s Supplementary Documents, page 17.
[56] Transcript, page 60, lines 24 to 30.
When it was put to the Applicant that he committed this stealing offence while he was in a relationship with Nikki, who he said had been a good influence on him, he said:
“I wasn’t doing crime, I was just getting plates, I wasn’t really doing anything wrong. Like it was wrong stealing people’s plates but yes, it wasn’t – yes.”[57]
[57] Transcript, page 61, lines 5 to 17.
On 24 October 2019, barely a week after being sentenced for the stolen registration plates, the Applicant was caught driving a stolen car. When police activated warning lights, the Applicant reversed towards the unmarked police vehicle, narrowly avoiding a collision. When the police intercepted the vehicle, the Applicant claimed not to know the vehicle was stolen.[58] In the hearing, he said he did not recall reversing towards an unmarked police car but he admitted that he knew at the time that the car he was driving was stolen.[59] The Applicant was also driving unlicensed.
[58] Exhibit R2, Respondent’s Supplementary Documents, page 27.
[59] Transcript, page 90, line 37 to page 91, line 36.
The Applicant said he was not affected by alcohol when he committed the offences between August and October 2019.[60]
[60] Transcript, page 90, lines 20 to 30.
The Applicant’s relationship with Nikki ended in November 2019. He said he found it very difficult and his friends encouraged him to go out and drink and forget about it. He and some friends went to a party in Fortitude Valley at the home of a man who was in his 40s or 50s, “Mr R”. A young female “Ms H”, who the Applicant vaguely knew, was staying with Mr R.[61] The Applicant ended up staying at Mr R’s house for a week or so after this party. He was on bail at this time.
[61] Exhibit A5, Statement of the Applicant, paragraph 66.
At 2.55am on 6 November 2019, the Applicant, Ms H and Mr R approached a male and female who were standing on a street corner in Fortitude Valley, having a conversation. Ms H became verbally aggressive and they asked her to leave. She suddenly punched the male in his chest, then she punched the female to the left side of her face with a closed fist. The male jumped in front of the female to shield her. Ms H continued to push the male causing him to drop his bag. She then pulled him a couple of metres by his hair. The female attempted to intervene and Ms H punched her in the head. The female victim sustained painful swelling and bruising to her head and face. Ms H then picked up the male victim’s glass water bottle from the ground and threatened him and the female victim with it. She said: “I’m sixteen and I’ll fucking stab you, cunt”. Mr R yelled at the Applicant and Ms H to grab the male victim’s bag and Ms H picked up the bag. It contained bank and personal identification cards and a $200 voucher. The Applicant, Ms H and Mr R then fled and Ms H passed the bag to the Applicant. As the Applicant was standing close by Ms H, complicit in her offending against the victims, he was subsequently convicted of common assault (x 2), assault occasioning bodily harm in company, and stealing.[62]
[62]Exhibit R2, Respondent’s Supplementary Documents, page 57; Exhibit A5, Statement of the Applicant, paragraph 67.
According to the Applicant, after that incident he remained in the company of those people and he was offered “ice”, being methamphetamine. As he was drunk, he took it. After that, he wanted it all the time and he used it multiple times over the next few days. He said:
“We decided to try to rob people so we could buy more drugs and alcohol. I was a bit scared to do it but my head was not in the right place because of this ice. All that was going through my mind was to get money for the ice.”[63]
[63] Exhibit A5, Statement of the Applicant, paragraphs 69 to 73.
At 12.45am on 9 November 2019, Ms H approached a male in the street and asked for a cigarette. The male refused and Ms H followed him for a short period. When the victim turned around, he suddenly saw the Applicant and two other males standing 20 meters away. One of the males approach the victim and asked if he wanted “trouble”. The victim continued to walk in an attempt to get away from them. The Applicant and his co-offenders surrounded the victim and one of them demanded his backpack. The victim removed the backpack and showed it to them. The Applicant held a knife at the victim’s stomach. The victim told the Applicant he did not need to use the knife. Ms H then took the bag and searched it. A co-offender took the victim’s mobile phone and demanded the PIN code, as the Applicant continued to hold the knife against the victim’s stomach. The Applicant then moved the knife to the victim’s throat so that the blade touched his skin. As he did that, he told the victim nothing would happen to him as long as he gave them what they wanted. The victim gave them the PIN. The Applicant kept the blade at the victim’s throat while a co-offender unlocked the phone and completed a factory reset. The Applicant told the victim not to go to the police and released him. All the offenders then walked away.
The Applicant described the knife as a “little kitchen knife”[64]. When asked about holding the knife to the victim’s stomach and throat, the Applicant said: “we were just going to take his stuff, that’s all”.[65]
[64] Transcript, page 68, line 1.
[65] Transcript, page 68, lines 14 to 15.
At 3.30am on 10 November 2019, another victim was targeted by the Applicant and his associates in Fortitude Valley. Ms H approached the victim, and the Applicant asked if he had any money to which he said no. Ms H and the Applicant continued to ask the victim for money and they followed him. The Applicant put his right arm around the victim’s head and pulled his face towards him. He pressed an object against the victim’s chest and said: “Don’t move or I’ll stab you”. The victim asked the Applicant if he was going to stab him to which the Applicant replied that he would not if he did not move. Ms H searched the victim’s pockets and removed his bank cards and a mobile phone. The victim put his hands 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 victim called out to a nearby Uber driver to call the police. Ms H then struck him on the back of the head a few times. She attempted to pull the keys from his hands causing them to fall to the ground. When he bent over to pick them up Ms H and the Applicant began hitting his head again. They then walked away from the victim. The victim ran after them and grabbed Ms H’s jumper, demanding that she give him back his property. The Applicant ran to the victim and stabbed him twice in his right upper arm and punched him in the head with a closed fist. The victim sustained lacerations to his left eye and nose and to lacerations to his left upper arm. The victim ran towards the Uber driver asking for help. Ms H and the Applicant ran to a nearby unit complex. The victim required stitches for his injuries.
In his statement of March 2021, the Applicant said:
“I had no intention of using the knife on the people we robbed. I stabbed the victim on the 10 November because I thought he was choking [Ms H] and I was trying to defend her”.[66]
[66] Exhibit A5, Statement of the Applicant, paragraphs 76 to 77.
The Applicant was probed about this in the hearing. He said the victim had Ms H by her hoodie and that she had asthma and was struggling to breathe. He said he told the victim to let go of Ms H or he would stab him, the victim did not let go so he did stab him, and as the victim still did not let go, he punched him. This is not consistent with the Statement of Facts which makes no mention of Ms H struggling to breathe or of the Applicant giving any warning to the victim. In fact, the police record of this incident states:
“The victim was asking [redacted] for his property back when the [Applicant] has run at the victim from out of the darkness on the other side of the courtyard and without warning has stabbed the victim twice in the right upper arm and struck him in the head with a closed fist”.[67]
(Underlining added)
[67] Exhibit R2, Respondent’s Supplementary Documents, pages 35 to 36.
Upon further questioning about his account, the Applicant indicated that Ms H was trying to get away from the victim, and that the victim was not doing anything specifically to restrict her breathing. He agreed that this all occurred in the context of the victim trying to apprehend someone who was stealing his property.[68]
[68] Transcript, pages 70 to 71.
On 2 December 2019, the Applicant was arrested and charged in relation to the three offending episodes and remanded in custody. For ease of reference, I will refer to these offending episodes as the violent robberies.
On 29 July 2020, the Applicant was convicted and sentenced in the District Court for a number of offences. For armed robbery in company (the second violent robbery) and armed robbery in company with wounding (the third violent robbery), he received concurrent sentences of imprisonment of three and four years respectively that were to be suspended after serving 10 months. For assault x 3, assault occasioning bodily harm and the stealing (the first violent robbery), and for two other summary offences of stealing and unlawful use of a motor vehicle, he was sentenced to probation for a period of two years upon release from imprisonment. He was also convicted of driving a motor vehicle without a driver’s licence and sentenced for a period of one month to be served concurrently with the other sentences. He was disqualified from holding or obtaining a licence for a period of three months.
For the purpose of the sentencing proceedings, the Applicant’s parents had provided a letter to the court. It said:
“Our son [the Applicant] has always been a very good boy. He came to Australia in 2012 when he was eleven years old.
We ask the judge to please give him a chance. All of his family support him and we already see him changing every day. Every time he calls us he tells us that he wants to change to change his life. When he comes out he wants to study and get a job.
His biggest regret is mixing with bad friends and how he changed when he was with them.
We believe he wants to change and have a different life in the future.” [69]
[69] Exhibit R2, Respondent’s Supplementary Documents, page 65.
In passing sentence, the learned sentencing Judge made the following remarks:
“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 punched him again in the head with a closed fist. So there was a rapid escalation in your behaviour…By this stage, you are starting to look like a danger to the public. I have read your parents’ letter, and I am prepared to accept that going into custody has pulled you up and given you time to think…And I am also prepared to accept that you had got in with a bad crowd…[Indistinct] was with you on the three occasions, and she - was the main aggressor on the first occasion… You know, punching complete strangers. So it looks to me as if she was a ringleader. But then you started to try to catch up with her. That is what has got you in the big trouble… I have taken into account the following things. These are serious offences, particularly the armed robbery - the wounding… But I have taken into account your plea of guilty… Your age is a huge factor in this, because you were 18, and the Court recognise (sic) that young people have not much foresight. They take risks. But it also recognises good prospects for rehabilitation. I hope you can rehabilitate from here.
You are very lucky to have a supportive family and somewhere to go to. A lot of people do not. I take into account that the events happens over a short period of four days. You did not give an interview to the police, but you did plead guilty, so I recognise that. You have spent eight months in custody… I accept that, and I will reflect that, and I will declare that as part of the sentence. I have been thinking of releasing you after you have served 12 months, but I have been persuaded, because not only are you young, but you have had an extremely prejudicial childhood.”[70]
(Underlining added)
[70] Exhibit G1, Section 501 G Documents, G6, pages 32 to 33.
I have underlined certain passages in the sentencing remarks because they are relevant to the lenience shown by the learned sentencing Judge when she set the head sentence and period to serve. Her Honour accepted that, among other things, the Applicant was influenced by a “bad crowd”, that custody had brought about a positive change in the Applicant, and that he had a supportive family. It is apparent that Her Honour relied on a letter that was written by people (the Applicant’s parents) who could be presumed to have good knowledge of the Applicant’s character, offending and lifestyle at the relevant time but – as will become apparent – had limited knowledge of those matters.

Records from Corrective Services indicate that the Applicant was generally of good behaviour while in prison. However, a record dated 19 September 2020 states:
“Prisoner was giving the prisoner cellmate a hard time.
Prisoner was counselled by unit staff regarding the prisoner behaviour
The prisoner was denying and attempting to argue with staff. Due to the prisoner poor behaviour the prisoner was taken outside C3 airlock and counselled about the prisoner behaviours towards staff and other prisoners. The prisoner apologised to unit staff and stated that he will leave his cellmate alone.
Prisoner is very argumentative when there is a crowd of prisoners.
Prisoner likes to stand over older prisoners in the unit.
Prisoner needs to be monitored before behavioural issues become a concern for the good order of the facility.”[71]
[71] Transcript page 178.
A record dated 23 September 2020 states:
“Prisoner was seen to be attempting to divert his PRN medication this afternoon. First he stated that he couldn’t swallow the medication and when he was escorted to get more water he put the medication in his mouth and pushed it up between his government upper lip. The prisoner was challenged on this and he put his finger on the tablet and moved it around his gum line is by this stage the tablet had started to dissolve as a white residue was seen on his gums. The prisoner was directed to take his medication and on this direction he was compliant.[72]
[72] Exhibit R2, Respondent’s Supplementary Documents, page 178.
The Applicant has not incurred any breaches while in Immigration Detention.
PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
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 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors, including:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that 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, are serious;
(d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(i)Where the non-citizen is in Australia, that 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 is serious, as is an offence against section 197A of the Act.
The Applicant has been involved in four violent offences. In two of those, by his presence, he supported an associate who inflicted violence and stole from the victims. In relation to the assault and stealing in 2016, he admitted that he was backing up his associate. In relation to the first of the violent robberies in November 2019, the two victims were outnumbered by Ms H, the Applicant and Mr R, putting them at an obvious disadvantage. The significance of the Applicant’s presence cannot have escaped him, especially as he typically committed predatory offences in company. This first violent robbery involved a female victim.
In the other two violent robberies, the Applicant directly perpetrated violence by threatening one victim with a knife and by threatening and stabbing the other victim with a knife as well as punching him several times. I do not accept the reason he put forward for stabbing the victim of the third violent robbery. I find that the Applicant stabbed the victim to help Ms H escape with the victim’s belongings and not because he thought her life was in danger. These two robberies were planned, and the Applicant committed them (and the first) while he was on bail.
The Applicant’s violent offending, in its totality, is very serious.
The Applicant’s verbal abuse towards police when they asked him to state his name and move on is also serious. He was on probation at this time. I do not accept that his apparent belief that he had done nothing wrong on that occasion excuses or mitigates his behaviour.
Some of the victims of the Applicant’s property offences lived in retirement villages and could therefore be presumed to be vulnerable members of the community. Waking up at night to find an intruder in one’s bedroom must be a terrifying experience even for a fit, able bodied person, let alone an elderly person. I am satisfied that the Applicant knew these homes were in retirement villages and was unconcerned with whether or not the residents were at home. These burglaries are serious offences.
Nor was the Applicant concerned with whether individuals were home when he and his friends committed other burglaries together, for example the burglaries on the night of Christmas. This sort of offending involves a disregard for property rights and the sanctity of people’s homes.
Until the most recent sentencing episode, the Applicant enjoyed considerable leniency from sentencing courts, no doubt because of his age and possibly his disadvantaged childhood. However, even those (and other) matters could not justify a non-custodial sentence for the second and third violent robberies. A custodial sentence is a penalty of last resort in the hierarchy of sentencing options, and the learned sentencing Judge not only imposed custodial sentences, she imposed substantial head sentences and a substantial period to serve. These sentences reflect the objective seriousness of the offences.
The Applicant committed some 28 offences and several traffic infringements in a six year period. There is a trend in increasing seriousness in his offending given the escalation from property offences to violent offending and the escalation in his level of involvement in the three violent robberies.
The cumulative impact of the Applicant’s repeated offending is that many members of the community have had the sanctity of their homes and their property rights violated, multiple persons have been threatened with serious violence and/or injured, and the resources of the criminal justice system have largely been wasted on giving the Applicant opportunities and support to reform. Not only did he continue to offend, his offending became more serious.
I do not consider factors (g) to (i) of paragraph 13.1.1(1) of the Direction apply to the Applicant’s offending or circumstances. The rest of the relevant sub-paragraphs of paragraph 13.1.1(1) of the Direction, in their totality, weigh heavily against revocation of the cancellation of the Applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:
·paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
·paragraph 13.1.2(1)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
Should the Applicant engage in further threatening and violent behaviour, the nature of harm includes serious psychological and physical harm to members of the Australian community. The harm from further risky driving such as when the Applicant drove unlicensed on the wrong side of the road with only one headlight, or when he nearly caused a collision with a police car in his efforts to evade the police, include serious injury or death. The harm from further break-ins and dishonesty offences includes financial loss and the violation of people’s property rights and sense of security in their homes.
Likelihood of engaging in further criminal or other serious conduct
The Applicant is barely 20 years old, yet he has a lengthy criminal history that includes armed robbery in company with wounding. He spent his teenage years and early adulthood offending despite the efforts of the criminal justice system to help him reform.
The Applicant claims that he has not used drugs or alcohol since being incarcerated and I accept that. I also accept that he had employment while in prison. He claims to have matured a lot because of his time in prison and detention, and he has undertaken a drug and alcohol course and an anger management course.
The Applicant said that while he was in detention, one of his co-offenders contacted him through Facebook. He blocked that person, deleted his Facebook account and created a new account.[73] In a statement dated 12 March 2021, he said:
“I never want to go back to jail. It gave me a lot of time to think about everything. This is not the life I want to live, doing crime and drinking or using drugs and being with the wrong people. I want to get a job and live my own life and support my family.”[74]
[73] Exhibit A5, Personal Statement of the Applicant, paragraph 111.
[74] Ibid, paragraph 115.
He also said:
“I’ve been honest with them [his family] about what I was doing, including the drugs and alcohol. They were really disappointed in me going to jail. They told me I won’t be doing drugs or alcohol again, or going out or staying away from home for the night.”[75]
[75] Ibid, paragraph 117
The Applicant has not, in fact, been honest with his family about what he “was doing”. Both of his parents gave evidence and neither knew the nature of the offences that led to his incarceration. When his mother was asked what she knew, the Applicant interjected in Somali and told her to say he was stealing.[76] She was subsequently asked if she knew what offences he had committed before the day of the hearing and she said she did not know.[77] The only other offending the Applicant’s father displayed awareness of was an unlicensed driving offence.
[76] Transcript, page 104, line 15 to page 105, line 6.
[77] Transcript, page 105, lines 1 to 33.
If the Applicant is given his visa back, he plans to live with his father (which is a requirement of his parole conditions), engage with the Queensland Somali Youth Council (which has provided a letter of support[78]), and make use of an offer of help from one of his disabled brother’s carers (“Mr S”). Mr S is an Australian citizen from Ethiopia. He appears to be an upstanding member of the community. He has not met the Applicant but he is willing to assist him to secure employment in work that does not require any particular skill set and to drive him to and from work until he earns enough money to pay for Uber rides.[79] The Applicant has not had any previous engagement with the Queensland Somali Youth Council.[80] He expects they will help him stay out of trouble and go to the mosque and “start praying and stuff”.[81] The Applicant intends to avoid his former associates. He does not have any close friends[82] and he intends to spend time with his siblings. The Applicant will be on probation until October 2022.
[78] Exhibit A6 Statement of Queensland Somali Youth Council.
[79] Exhibit A8, Applicant’s Additional Evidence page 13; Transcript, pages 128 to 132.
[80] Transcript, page 44, lines 14 to 16.
[81] Transcript, page 29, lines 42 to 46.
[82] Exhibit A8, Applicant’s Additional Evidence, page 4.
I have concerns about whether the Applicant would follow through with his plans and, if he did, whether that would be enough to keep him from re-offending.
The Applicant broadly attributed his offending to alcohol addiction and associating with a negative peer group. In representations made to the Respondent, the Applicant described himself as an alcoholic. He was asked about this in the hearing and he said he was drinking “All the time”[83]. He said he suffered withdrawals in custody when he stopped drinking alcohol.[84]
[83] Transcript, page 15, lines 1 to 6;
[84] Exhibit A5, Statement of the Applicant.
In his revocation request the Applicant said:
“I acknowledge that I have committed offences of a serious nature. My most recent offence was last year happened at a time in my life when I was addicted to alcohol. My alcohol addiction developed following my separation from my girlfriend. I believe that I turned to alcohol to help me cope with our relationship problem and also the lose of my job, which meant I didn’t have any income. My family disappointed in me and frustrated by my increasing addiction to alcohol. It was at this time that I committed my armed robbery offence. I was drunk at the time. I know I am responsible for my offence. I was just desperate for money and I wasn’t thinking at the time about the consequences of my actions for the victims. I sincerely regret what I did”
(Errors in original)
and:
“If I’m allowed to stay in Australia, I will not repeat the mistakes of my past. I am now in a different position to where I was before and with the love of my family I can succeed. I say that all my offences took place because of my problem with alcohol. All my family have noticed a huge difference in me since coming to jail and getting help with my issues. I used to use alcohol to deal with my problems but now I know I don’t have to do this anymore. I also I understand I need to change my lifestyle and stay away from negative influences”[85].
[85] Exhibit G1, Section 501 G documents, G14, page 64.
In a letter attached to his revocation request,[86] the Applicant said most of his friends had drinking problems and they spent their time drinking and partying. He said peer pressure and alcohol addiction played a major part in the violent robbery offences. He added that he was not thinking about his actions or the impact on his victims, his family or himself. He said his regret is related not only to the impact on him but to the impact on his victims. He said he is now in a better place since coming to gaol as he has learnt a lot and started working in the prison industries learning new skills, discipline and commitment.
[86] Exhibit G1, Section 501 G documents, G15.
In another letter from the Applicant, dated 10 November 2020,[87] he said of the violent robbery offences:
“I was a bystander in the first incident, because it wasn’t comfortable for me to act in such a manner. I didn’t agree with what was going on however I didn’t want to look weak towards the group so I didn’t say anything. I am really ashamed of being a part of this crime and acting with such violence and poor actions.”
[87] Ibid, G16.
The Applicant has been consistent in his evidence that he had a problem with alcohol. His mother recalled thinking she smelt it on him on one occasion. I accept that he had a problem with alcohol and that this contributed to some, but not all, of his offending. It also seems clear that the Applicant offended in company, although it was not always the same company. While he claimed that peer pressure contributed to his offending, he gave no specific evidence of feeling pressured to offend. I note that when he was in a relationship with his former girlfriend Nikki, who influenced him to reduce his alcohol consumption and his contact with his friends, he still offended.
Shortly before the hearing, the Applicant changed his evidence in relation to the violent robberies. In his statement dated 12 March 2021,[88] he said he was using methamphetamine at the time, he needed more, all he could think about was getting more, and he committed the robberies to buy it. He said “I did not tell my criminal lawyer I had used ice that weekend. I was scared they would tell my parents and they would be upset with me.”[89]
[88] Exhibit A5, Statement of the Applicant.
[89] Ibid, paragraph 81.
Isolated, uncharacteristic methamphetamine use that commenced when the Applicant’s judgment was impaired by alcohol could be a convenient way to explain the violent robberies which are the most serious of the Applicant’s offending and ultimately resulted in the cancellation of his visa. However, the Applicant admitted that he did not use methamphetamine until after the first violent robbery.[90] In that incident, he witnessed Ms H punch the female victim twice and say, “I’m 16, I’ll fucking stab you, cunt”. He did not object or intervene. Nor did he stop associating with Ms H and Mr R following that episode. His behaviour at that time does suggest that he felt remorse or shame then. When it was put to him that perhaps he should not have been associating with those people given that very violent, threatening behaviour, he did not give a responsive answer. When he was then asked:
“This girl has been very violent and very threatening and aggressive to two strangers, and I’m wondering why it was that you chose to then continue to associate with this person?”
He said, “I have no idea”.[91]
[90] Transcript, page 67, lines 8 to 12.
[91] Transcript, page 92, lines 1 to 24.
When the Applicant was asked why he did not tell his criminal lawyer that he had used ice, the following exchange occurred:
APPLICANT: Because my family were in contact with my lawyers. I didn’t want my family to be disappointed in me.
MEMBER: [Applicant] did you not think they would be disappointed in you for the assaults that you’d committed?
APPLICANT: Yes, I don’t know. I don’t really tell them that much about it.[92]
[92] Transcript, page 22, lines 1 to 8.
…
MEMBER: Well I’m asking you this because it’s hard for me to believe that you were embarrassed or ashamed to tell – to let them know that you had used drugs at the same time that you’ve been arrested for violent assaults.
Do you see what I mean? It seems strange that you’re okay with them finding out about your crimes but not about your drug use.
APPLICANT: Yes, I know.
MEMBER: I’m giving you an opportunity to explain that to me. Can you explain that to me? If I’ve got something wrong I mean. If I’ve got something wrong, I don’t want to hold it against you if I’ve got it wrong so can you explain it to me. Why you wanted to conceal your drug use at the same time that you’d been arrested for those crimes.
APPLICANT: I didn’t think they were going to ask my lawyer about my charges to be honest.
MEMBER: Okay.
APPLICANT: Because I thought they were only going to ask if I’m going to get released or other stuff and help me try and get out. I never thought they would ask for my charges and stuff to the lawyer.
MEMBER: Did you think they weren’t interested? They wouldn’t be interested in your charges?
APPLICANT: Yes.
MEMBER: Why is that?
APPLICANT: Because my mum doesn’t know that I done crimes and stuff. I did the crime and I didn’t want to tell them that I did the crime and did that and the ice.
MEMBER: So did you think that you would be charged and dealt with in court without your parents really knowing what you’d done?
APPLICANT: Yes.[93]
…
MEMBER: …I’m still a little bit confused. Why did you think that your lawyer would tell your parents about the ice but not about the actual crimes?
APPLICANT: I didn’t think my mum was going to ask about my charges to my lawyer.
MEMBER: Did you think your mum was going to ask if you’d been using drugs?
APPLICANT: No, I don’t think she would ask. That’s why – like, yes, but I told her, like, I’d be all right and everything is all right so she shouldn’t want to ask them and my lawyer for any information about my stuff.
MEMBER: So it’s still not clear to me why you concealed your ice use from your lawyer at the same time that you didn’t think your parents would ask any questions about your crimes. Why conceal something when you don’t think your parents are interested in finding out in the first place?
APPLICANT: I have no idea.[94]
[93] Transcript, Page 22, line 45 to page 23, line 35.
[94] Transcript, page 24, lines 16 to 36.

I find it hard to believe that the Applicant thought his lawyer would communicate to his parents that he had used drugs while refraining from communicating to them the substance of the charges against him. Further, fear of parental disapproval does not explain why the Applicant did not mention methamphetamine use in his revocation request to which his parents were not privy (had they been they would have known the facts of some of his offending). The Respondent did not dispute the Applicant’s claim that he was affected by methamphetamine during the second and third violent robberies. Accordingly, I am prepared to accept that he was. What that means is that the Applicant deliberately omitted from his revocation request information - being his methamphetamine use - that was material to the second and third violent robberies. I do not accept that the Applicant’s initial failure to disclose his methamphetamine use was done in an effort to conceal it from his parents. I consider it much more likely that he sought to conceal it from law enforcement authorities and later from the Respondent (until shortly before the hearing).
I accept that methamphetamine use contributes to poor decision making and it is associated with violence, and that the Applicant’s methamphetamine use had an influence on his behaviour. However, it is not the case that all persons who use methamphetamine are violent. Nor was it the case that the Applicant’s violence resulted from failure to control emotions or impulses. Rather, the armed robberies were planned, he kept a cool head when he used the knife to threaten the victims, and he stabbed and punched the last victim to make him let go of his accomplice. I do not accept that the second and third violent robberies were markedly out of character for the Applicant. He had previously backed up an associate while he assaulted and robbed a person, carried a knife in public for the purpose of threatening people with it in self-defence, and he stood by while Ms H attacked and threatened two people. His indifference to the physical wellbeing of other members of the community and preparedness to brandish a weapon were already well-established.
That indifference is particularly concerning given the Applicant’s own experience in the refugee camp. In his March 2021 statement, he said life in the refugee camp was “very rough”. He said there was a lot of violence and he recalled several times when people broke into his family’s tent with machetes and guns to steal things from them. He said his family had no way of defending themselves and they used to hide under the bed.[95] I have no reason to doubt this. Yet in Australia, when the Applicant had a safe home to live in, he chose to go out with his friends breaking into other people’s homes, sometimes when the residents were at home, and steal their possessions. While the Applicant has expressed some empathy for the victims of the violent robberies, he did not show any at the time and he has not displayed empathy for his other victims.
[95] Exhibit A5,Statement of the Applicant, paragraphs 19 to 20.
Professor James Freeman, consultant psychologist, interviewed the Applicant and conducted a risk assessment in March 2021. He provided a written report[96] and he gave evidence in the hearing.[97] I note that he was not aware of the Applicant’s offending before 2016, and when he was informed of that by the Respondent’s lawyer, he remarked that it did not surprise him and it did not make a significant difference to his overall assessment.[98]
[96] Exhibit A8, Applicant’s Additional Evidence, pages 2 to 13.
[97] Transcript, pages 140 to 160.
[98] Transcript, page 149.
Professor Freeman diagnosed the Applicant with alcohol dependency disorder that is in partial remission in a controlled environment. He administered the Hare Psychopathy Check List - Revised (PCL-R), the Historical, Clinical and Risk Management - 20 Violence Assessment Scheme (HCR-20) and the Violence Risk Appraisal Guide (VRAG). He opined that, while the PCL-R is the “gold standard”, it had a major flaw in that it gives a lot of weight to historical behaviour that cannot be changed. There is therefore a need for the person administering it to use their clinical judgment, which he did. In his evidence, Professor Freeman did not deviate from his initial assessment except to state that he would increase the Applicant’s PCL-R score by one point to account for the evidence put to him that the Applicant was prone to boredom as this is a risk factor.[99]
[99] Transcript, pages 150 to 151.
Professor Freeman opined that a foundational element the Applicant’s offending history was his association with a negative peer network that condoned or supported substance abuse and offending, and that “reduced parental supervision” exacerbated the problem. He thought the more recent offences could be considered uncharacteristic as his offending history had predominantly been non-violent in nature. I accept this with the qualification that, as observed above, the Applicant had previously stood by as back-up while an associate assaulted and robbed a person. Professor Freeman noted that the Applicant’s uncharacteristic use of methamphetamine combined with sleep deprivation and being put in a high risk situation were all important factors in the violent robberies. He added that methamphetamine use impairs a person’s ability to respond appropriately to risk.
Professor Freeman thought the Applicant’s risk of recidivism related primarily to substance abuse and contact with negative peer support groups that promote such behaviour. He thought the Applicant had sufficient insight into the extent of his substance abuse and recognised the link between it and his offending. Professor Freeman said the Applicant had not sought to minimise or rationalise his behaviour (however he was not privy to the evidence the Applicant had earlier given in the hearing in which he did do that - discussed further below). He noted that the Applicant accepted responsibility, had maintained abstinence, had been generally of good behaviour and held employment in custody, and was doing rehabilitation programs.
Professor Freeman placed some significance on the maturation process whereby, as the Applicant gets further into his twenties, he would be expected to engage less in non-consequential thinking, and a great deal of emphasis on the personal deterrence that comes about when an offender experiences their first custodial episode and they do not like it. He said actually experiencing it, rather than being aware of a theoretic risk of it happening, are two very different things. Incarceration as a consequence of offending is now real to the Applicant. He applied the same reasoning to the cancellation of the Applicant’s visa.
Based on the psychometric tools he administered and his clinical judgment, Professor Freeman considered that the Applicant presented a medium to high risk of recidivism, but thought that if he could avoid the identified risk factors, his prospects for the future could be considered much more optimistic.[100]
[100] Exhibit A8, Applicant’s Additional Evidence, pages 8 to 9.
Professor Freeman diagnosed the Applicant with an adjustment disorder which is temporary and due to his current circumstances. He opined that if he is deported, it could become permanent so that it would be a major depressive disorder. He said depression lowers resilience and makes people more likely to make poor decisions.
While I largely accept Professor Freeman’s assessment, he did not have the benefit of hearing the Applicant’s evidence and observing his demeanour in the hearing. In my opinion, the Applicant showed little remorse for his victims and he showed an alarming lack of insight into the offending against the police and the stabbing in the third violent robbery, seeming to put forward what he considered to be justifications for each. I do not accept that the Applicant truly accepts that what he did on those occasions was wrong. Further he described stealing registration plates (while dating Nikki) as not “doing crime” and not “really doing anything wrong”[101]. This is despite the rehabilitative courses he has embarked upon recently. Nor was the Applicant honest in his initial dealings with the Respondent about his drug abuse in relation to the second and third violent robberies.
[101] Transcript, page 61, lines 5 to 17.
The Applicant put forward his parents as protective factors, however Professor Freeman thought that whether they could serve as protective factors depended on the Applicant’s willingness to let them. I accept that, and I would add that it depends on them taking an interest in the Applicant’s behaviour and enforcing boundaries. To date, they have not.
The Applicant maintained that before his incarceration, his parents were unaware of his offending and he did not recall them ever going to court[102] although I note that his father recalled going to court in relation to unlicensed driving. His father accepted him staying away overnight without ever having met any of the friends who he apparently stayed with.[103] Nor was his father aware of the curfew or the Applicant spending two nights in a youth detention centre.
[102] Transcript, page 15, lines 30 to 38.
[103] Transcript, page 125, lines 19 to 24.
In relation to the period in which he committed the violent robberies, the Applicant said he had not stayed away from home for as long as a week before, and that he did not answer calls from his parents even though his siblings had told him that his parents were worried.[104] There is no evidence that either of his parents made further efforts to locate the Applicant during that time. The Applicant gave evidence that he did not think his parents would enquire about the crimes he was charged with (the violent robberies), only try to get him out of gaol. Indeed, when they wrote to the District Court seeking leniency for him they did not know the facts of those offences and they still do not know.
[104] Transcript, page 20.
The Applicant’s step-brother is currently in immigration detention, having had his visa cancelled due to criminal offending.[105] The Applicant’s father said he had believed that he was using drugs at one time. When the Applicant’s mother was asked if she knew why the step-brother was in immigration detention, she said:
“Yes, he was involved in an incident that he was with other mates of him. I think it may be there was a brawl or a fight with someone else, and I think he did was a situation where that young boy - or young gentleman was stabbed with a bottle. So it was about fighting.”[106]
[105] Transcript page 78 lines 1 to 11.
[106] Transcript, page 108, lines 31 to 35.
She confirmed that he was living with her at the time of that offence.[107] Evidently, the Applicant’s mother did not serve as a sufficiently protective factor for this older child.
[107] Transcript, page 109, lines 15 to 18.
The Applicant’s mother said that there were no rules or restrictions about who the Applicant could see and when he could go out at night.[108] When asked what rules or restrictions she and her husband might impose upon the Applicant to help him avoid re-offending, she said:
“he could not go by himself outside; if he is going outside of home that we should be with him at all times to make sure that those situation (sic) don’t happen again”[109]
[108] Transcript, page 101, lines 20 to 24
[109] Transcript, page 103, lines 33 to 40.
This strikes me as unrealistic, particularly given the Applicant’s mother’s responsibilities to the Applicant’s younger siblings including one with Down Syndrome.
While the Applicant’s mother referred to “bad friends” in her statement, she has never met any of the Applicant’s friends and she knew nothing about them except what the Applicant told her since entering immigration detention which is that alcohol and bad friends led him to offend.[110]
[110] Transcript, page 110, lines 25 to 46.
The Applicant indicated that there was a period when he tried to stop drinking and committing crimes, although it is not clear when this was. He lived with his mother and helped her look after his younger brothers. His mother helped him to change by telling him to stay at home and that she needed his help with his siblings.[111] This evidently did not last.
[111] Transcript, page 15, line 42 page 16, line 27.
In a written statement, the Applicant’s father said there were no rules placed on the Applicant. When asked about this he said:
“I may give him advice not to do, you know, bad things, but in terms of preventing him stopping him from going out with those people, you know, he’s got a freedom. It’s a freedom issue and I can’t stop him from doing that.”[112]
[112] Transcript, page 117, line 22 page 118, line 5.
He had previously given evidence that Australia “is a country of freedom” in the context of explaining his failure to set boundaries.[113] He later said because Australia is a “freedom country” he could not cane or beat the Applicant when he was a child.[114]
[113] Transcript, page 116.
[114] Transcript, page 136, lines 7 to 14.
The Applicant’s father said that if the Applicant’s visa is returned to him, the Applicant would live with him and there would be rules – he would tell the Applicant to respect the laws of Australia and the Applicant would listen to him not “do anything bad again”. He said the Applicant would be banned from being out at night after 9pm and banned from alcohol. He, his wife and his children would also help the Applicant to “stay away from those, you know, things he had done in the past” and the Applicant would “listen to us and respect the laws of this country Australia”.[115]
[115] Transcript, page 118, lines 21 to 45.
It is not apparent why the Applicant’s father thought that imposing a 9pm curfew would stop the Applicant from offending. His offending did not all occur after 9pm. Nor was it all alcohol related. Nor is it apparent how the Applicant’s family would help him stay away from things he has done in the past when they do not know what he has done. i.e. what offences he has committed.
Despite their apparent good intentions, I have no confidence in the Applicant’s parents to influence him to abstain from drug or alcohol abuse and to avoid re-offending.
While I accept that the Applicant does not wish to be incarcerated again or to be deported, and these things are protective factors, I am not satisfied that they are enough to prevent him from reoffending and that the Applicant is committed to being law-abiding. In addition to my concerns that he has not accepted the full extent of his wrongdoing, there was a short period six months ago when he was recorded standing over other inmates, being argumentative and attempting to divert his mediation.
My task is to assess the risk of re-offending in the present. Professor Freeman considered there to a moderate to high risk, however the Applicant’s prospects are better if he addresses his risk factors, and I accept this. The Applicant is at the very early stages of the rehabilitation process and he faces a lot of challenges. The maturation process that Professor Freeman discussed occurs throughout the twenties in males. The Applicant has only just turned 20. He does not have any pro-social friends, and he will be living in the same area as he was when he was associating with other offenders. Employment is normally a stabilising factor and it would seem to be particularly helpful for a person who is prone to boredom such as the Applicant. I accept that Mr S will assist the Applicant to obtain employment. However, the Applicant has never held gainful employment outside the structured environment of prison where there is little else to fill in one’s time, and on the evidence before me I cannot be confident that he has developed the maturity and discipline to maintain gainful employment in the wider community on a long term basis. His family cannot be relied on to curb any inappropriate behaviour. His intoxication following the breakup of a significant relationship led him to use methamphetamine which was a factor in him to commit serious violent offences. He has not undergone specific counselling to help him to manage emotional trauma, and his ability to remain sober in the wider community without the structure, supervision and predictability of prison and detention is untested. He has been on probation before and he continued to offend.
I consider there to be a moderate to high risk that the Applicant will commit further offences of the kind that he has committed.
Conclusion: Primary Consideration A
Primary Consideration A weighs heavily against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made.
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
·     the nature and duration of the relationship between the child and the person, noting that less weight should generally be given where there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
·     the extent to which the person is likely to play a positive parental role in the future, taking into account the time until the child turns 18, and including any Court order relating to parental access and care arrangements;
·     the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
·     the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizens ability to maintain contact in other ways;
·     evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect;
·     whether there are other persons who already fulfil a parental role in relation to the child; and
·     any known views of the child.
The Applicant’s immediate family in Australia comprises his parents, an older stepsister and her son (aged five, “Child E”), an older step-brother in immigration detention, two more older brothers, three younger brothers and two younger sisters. Two of his younger brothers have special needs. “Child A” has Down Syndrome. He is on the National Disability Insurance Scheme, the Applicant’s mother receives a Carer’s Allowance to look after him and they receive support from a carer service.[116] The other child with special needs, “Child T” lives with the Applicant’s father who is unemployed and is Child T’s principal carer.[117] The Applicant does not claim to have any children. He said he speaks with his family every day. He indicated that he speaks with his siblings when they are at his mother’s home.[118]
[116] Exhibit A3, Statutory Declaration of the Applicant’s mother, paragraphs 6 to 11; Exhibit G1, Section 501 G-documents, G14, page 61.
[117] Transcript, page 137, lines 40 to 43.
[118] Transcript, page 87, lines 27 to 33.
In the Applicant’s revocation request he nominated Child E and the following four of his siblings as minor children whose best interests will be affected by the decision:
·“Child L”, a brother aged 11;
·Child A, a brother aged 12;
·“Child U”, a sister aged 13; and
·Child T, a brother aged 15.

The Applicant did not give evidence about where in Ethiopia he would live or indicate any areas he would avoid if he were to be deported. The Department of Foreign Affairs and Trade (“DFAT”) Country Information Report on Ethiopia, dated 12 August 2020, indicates that the situation in the capital, Addis Ababa, differs from that in regional areas.
In relation to ethnic discrimination in Ethiopia in general, it states:
·     official discrimination, including systematic state-sanctioned discrimination, denial of public services and higher detention rates, based on race and/or ethnicity is rare;
·     ethnic Somalis, including critics of the government face a low risk of official discrimination or violence on ethnic grounds;
·     societal discrimination based on ethnicity can occur, but is predominantly in the form of positive discrimination in favour of a particular ethnic group rather than active discrimination against people of a different race or ethnicity; and
·     outside Addis Ababa, Oromos face a moderate risk of violence in areas or states where they constitute a minority.
In relation to Addis Ababa, it states:
·     Addis Ababa is Ethiopia’s largest city, with a population of around 4.5 million. As Ethiopia’s administrative and commercial capital, it attracts migrants from across the country in search of economic opportunities and has a multi-ethnic character. Inter-ethnic marriage is common in Addis Ababa and urban centres. It is less common in rural areas;
·     while the security situation has deteriorated in parts of Ethiopia since 2018, including due to inter-ethnic clashes, Addis Ababa has largely been immune and is particularly stable;
·     different ethnic groups have a history of co-existence in Addis Ababa, and discrimination on ethnic grounds is not common there. One source described ethnicity as a non-factor in Addis Ababa, and most people consider themselves from Addis Ababa as opposed to a particular ethnic group; and
·     violence based on ethnicity is not common in Addis Ababa, but it is a growing concern in regional states.
There is no contradictory country information before me. Further, the DFAT report is very recent and contains the following preface:
“This report is informed by DFAT’s on-the-ground knowledge and discussions with a range of sources in Ethiopia. It takes into account relevant and credible open source reports, including those produced by: the United Nations and its agencies; the US Department of State; the UK Home Office; the World Bank; the International Monetary Fund; leading human rights organisations such as Amnesty International, Human Rights Watch and Freedom House; and reputable news sources. Where DFAT does not refer to a specific source of a report or allegation, this may be to protect the source.”[136]
[136] Exhibit R2, Respondent’s Supplementary Documents, page 220, Paragraph 1.4.
I find the DFAT report to be a reliable source and I do not accept that there is a general risk of harm on the basis of ethnicity or mixed ethnicity in Addis Ababa.
In July 2020, it was reported that after the murder in Addis Ababa of a singer who was an activist for the rights of the Oromo people, there had been ethnic violence in the capital and regional Oromo state. The violence was not described as widespread. The report did not state whether the violence was confined to those who wished to participate in it or whether innocent civilians were targeted.[137] The Applicant has not expressed any intention or desire to participate in ethnic activism or ethnic violence. The murder of a popular activist in Ethiopia appears to be an unusual, isolated event. I accept that occasionally an event may occur that leads to some ethnic violence in Addis Ababa. However, I am not satisfied that there is more than a remote risk that the Applicant would be caught up in it due to his Oromo/Somali ethnicity. No reason was put forward as to why the Applicant could not live in Addis Ababa. On the basis that the Applicant could live in Addis Ababa, I am not satisfied that there is a real chance of serious harm on the basis of his ethnicity or for any other convention reasons, or that there is a real risk of significant harm of the kind that is covered under complimentary protection in domestic law. The Applicant is not owed non-refoulement obligations.
[137] Exhibit A8, Applicant’s Additional Evidence, page 49.
Should I decide not to revoke the cancellation of the Applicant’s visa, he may apply for a Protection visa.
In terms of harm or hardship that does not attract non-refoulment obligations, it was contended that the Applicant could be ostracised on the basis of his mixed ethnicity, however the country information indicates that this would not be the case in Addis Ababa. Nor is there any evidence that any perception that he has western characteristics would lead to any form of adverse treatment. I do accept, however that as a person who knows no-one, has no known family in Ethiopia, and speaks and acts differently to the locals, the Applicant will be without social support and could find it hard to make social connections. This likely hardship is more relevant to Other Consideration (e) so I will consider it below.
If the Applicant is not granted a Protection visa, he is liable to be held in immigration detention until it is reasonably practicable to remove him from Australia. The Applicant contends that it is unlikely that he can establish his Ethiopian nationality, meaning he will not be accepted by Ethiopia. Accordingly, the practical effect of non-revocation is that the Applicant will face a prolonged period in immigration detention or indefinite detention.
I am satisfied that if the Applicant does not get his visa back, and Ethiopia initially refused to accept him, it would not be reasonably practicable to remove him to Ethiopia and he would therefore remain in immigration detention while efforts were made to facilitate his removal to Ethiopia or a third country unless the Minister exercises an alternative option such as granting a visa under s 195A of the Act, however any such option is speculative.
The Applicant has put forward evidence of recent communications between his legal representative and the Ethiopian embassy with respect to establishing the Applicant’s Ethiopian citizenship or obtaining a passport or laissez passport.[138] The evidence shows that the embassy indicated that the immigration agency in Ethiopia would search for relevant documents there and enquiries would be made as to whether any living relatives could provide relevant documentation. If sufficient documentation could not be obtained, there is a very remote possibility that a laissez passport would be issued.
[138] Exhibit A8, Applicant’s Additional Evidence, pages16 to 22.
The DFAT report contains information relevant to the Applicant’s situation. Ethiopian citizenship can be obtained through descent (where at least one parent must be an Ethiopian citizen), marriage or a lengthy and complicated naturalisation process. The Applicant’s father did not expressly claim to be an Ethiopian citizen but he claimed he was born in Ethiopia and lived there until he left as an adult, and he claimed to be of the Oromo tribe - identifiable through language and tribal traditions.[139] It was not contended by either party that the Applicant’s father might not be an Ethiopian citizen. I take it that he is an Ethiopian citizen. The Applicant’s claim to citizenship is therefore through his father. Logically, this means his father would have to establish his own Ethiopian citizenship and provide evidence that the Applicant is his biological child.
[139] Exhibit A4, Statutory Declaration of the Applicant’s Father, paragraphs 17 to 30.
The Applicant’s father claims that he had never been issued with any identity documents by the Ethiopian government except for a driver’s license issued by the Addis Ababa transport office in approximately 1982. Ethiopian law requires the registration of all children within 90 days of birth. In practice, only a small percentage of births are registered and children issued birth certificates. Accordingly, the Applicant’s father’s lack of identify documents does not appear to be unusual.
170.According to the DFAT report, Ethiopian civil documents such as birth and death certificates are issued on the basis of statements made by the person applying and supporting witnesses - limited supporting documentation is required. One of the documents required to obtain a passport is a birth certificate. It therefore appears that the information the Ethiopian embassy provided to the Applicant’s lawyer in relation to issuing a passport was incomplete.
171.DFAT reports that Ethiopia has previously accepted large numbers of returnees. In 2013, Saudi Arabia expelled over 100,000 Ethiopian citizens as part of a crackdown on migrant workers. In 2017, 300,000 Ethiopians who were in Saudi Arabia undocumented were returned to Ethiopia, most of whom were deported (less than 30,000 returns were voluntary). Given the low rate of birth registrations, it must be the case that some of those returnees did not have birth certificates or registered births but were able to establish citizenship. To date the Australian government has not made any efforts to work with the Ethiopian government to assist the Applicant to establish his Ethiopian citizenship.
Given that, and the country information, I accept the Respondent’s contention that it would be premature for the Tribunal to make a finding about the likelihood that the Applicant would not be able to prove his citizenship, and what may flow from that, as the Australian government has not yet attempted to facilitate his removal to Ethiopia. However, I also accept the Applicant’s contention that prolonged detention would be likely while those efforts were made. The Applicant does not like being in immigration detention. Professor Freeman has diagnosed an adjustment disorder which he thinks is a result of the Applicant’s unhappiness with being in detention and stress at the prospect of being deported. I accept that this is likely to continue, and possibly become worse, while the Applicant remains in detention. On the other hand, being in a structured environment that does not permit alcohol consumption has benefitted the Applicant: he achieved sobriety in prison, he has maintained it in detention and he has generally stayed out of trouble. The evidence does not indicate that he is at risk of harm or hardship in detention apart from the prospect of his adjustment disorder worsening. He has not sought treatment for his mental health but help is available in detention.
This Other Considerations (a) weighs in favour of revocation to a limited extent.
I now turn to consider Other Consideration (e) which requires me to take into account the extent of any impediments that the Applicant may face if removed from Australia to Ethiopia, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of Ethiopia), taking into account:
·the Applicant’s age and health;
·whether there are any substantial language or cultural barriers; and
·any social, medical and/or economic support available to the Applicant in that country.
The Applicant is a 20 year old man who is able bodied and does not claim to have any medical or psychological conditions, although Professor Freeman diagnosed adjustment disorder caused by the Applicant’s current situation and speculated that it could solidify into major depressive disorder if he is deported.
Ethiopia is one of the world’s poorest countries, and with a very large dependence on agriculture the population is vulnerable to famines. The United Nations Development Programme (UNDP) ranks Ethiopia 173rd out of 189 countries in the 2019 Human Development Index, situating it in the low human development category. More than half the population does not have electricity. Internet penetration, at 15%, is low. Poverty is more pronounced in rural areas.
While in prison, the Applicant worked as welder, fixing fences among other things, for nine months.[140] He therefore has some manual labour skills. He also has oral and written English skills, which could provide an employment opportunity given English is the most widely spoken foreign language and it is taught in schools. As both his parents rely on government income support, I am satisfied that they are not in a position to send him financial assistance. According to the DFAT report, the International Organisation for Migration provides food, temporary shelter, onward transportation, cash assistance and other forms of support such as clothing and bedding to deportees considered particularly vulnerable (being those who were detained before deportation and returned without any belongings, assets or savings). The Ethiopian Government also provides some reintegration assistance, including temporary shelter, food, medical assistance and skills training. I am satisfied that the Applicant’s basic needs would be met upon arrival in Ethiopia and he would be assisted to establish himself.
[140] Transcript, page 26, lines 10 to 15.
Ethiopia has a young population, with a median age of 18 and around 70 per cent of the population under the age of 30. It is ethnically and linguistically diverse, comprising more than 80 different ethnic groups and 100 languages. Amharic is the national language and the second most widely spoken language in Ethiopia, spoken by 29.3% of the population. In Addis Ababa, 71% of the population speak Amharic. English is the most widely spoken foreign language and it is taught in schools.[141]
[141] Exhibit A8, Applicant’s Additional Evidence, page 73.
The Applicant has never lived in Ethiopia. I accept that he is not familiar with the culture, although his father is Ethiopian and therefore able to educate him somewhat in that regard. I accept that his lack of familiarity with the country and local cultures will present some initial difficulties.
The Applicant speaks some Amharic.[142] He sometimes speaks it with his father.[143] He also speaks English and he can read and write a little bit in English.[144] I am satisfied that the Applicant will be able to communicate in Ethiopia, especially in Addis Ababa, using his Amharic and English skills although his communication will be limited until he improves his proficiency in Amharic.
[142] Transcript, page 9, lines 35 to 45.
[143] Transcript, page 10, lines 1 to 2.
[144] Transcript, page 10, lines 4 to 11.
Should he be deported to Ethiopia, the Applicant will be in a completely foreign place where he knows no-one, has no social support and he may find it difficult to make connections. In addition, he will be less able to communicate with his family. Professor Freeman thought he might be at risk of his adjustment disorder becoming major depression, and the Applicant himself said that being made to leave Australia would impact on his depression. He said without his family he does did not know how motivated he would be to keep going.[145] According to the DFAT report, mental health services are available in Ethiopia, particularly in Addis Ababa and other major urban areas, but local sources told DFAT that the average person is often unaware of their existence. The report distinguished these from private mental health services which can be prohibitive due to the cost. I accept that the Applicant may develop depression and that he may have some difficulty finding, and therefore accessing, publicly available mental health services.
[145] Exhibit G1, Section 501 G documents, G14, page 67.
It is likely that the Applicant will face some difficulty in re-establishing himself in Ethiopia as he does not have an existing support network there and he is unfamiliar with local customs, culture and support services, he will have to secure accommodation, and he will have to find a way to use the skills he has to eke out a living.
This Other Consideration (e) weighs heavily in favour of revoking the cancellation of the Applicant’s visa.
(b) Strength, nature and duration of ties
The Applicant came to Australia at the age of 11 and has lived in Australia for eight years. He commenced offending two years after arriving in Australia, while still a minor, and therefore is entitled to very limited weight under paragraph 14.2(1)(a) of the Direction. His voluntary work affords him very limited weight under paragraph 14.2(1)(a)(ii) of the Direction.
In terms of paragraph 14.2(1)(b) of the Direction, the Applicant claims to have ties to his immediate family and nephew, and he does not claim to have any significant social ties. I have addressed the Applicant’s relationships with his minor siblings and nephew under Primary Consideration B. That leaves his parents and older siblings to consider.
The Applicant claimed to be particularly close to his mother. She said the Applicant was a good son to her and always helped her look after his siblings or do chores when she asked.[146] I accept that the Applicant helped his mother when he was present at her home. The Applicant said his mother was unwell and very distressed at the thought of him having to leave Australia, and that if he were allowed to remain in Australia, he could help support her through difficult times. The Applicant’s mother provided a four-page statutory declaration. Nowhere in that document did she claim to have any medical problems. Nor did she give oral evidence of any medical problems. I do not accept that the Applicant’s mother is unwell or that his predicament is affecting her health.
[146] Exhibit A3, Statutory Declaration of the Applicant’s Mother, paragraph 32.
The Applicant also claimed that:
“Currently my family are devastating and shocked about my visa cancellation. This will have a big impact on my parents who spend years in refugee camps and tried their best to give me a great life and a safe home in Australia. The thought of me being removed from Australia and send back to Somalia a war-torn country will have a very serious effect on family especially my mother and my father mental health.”[147]
(Errors in original)
[147] Exhibit G1, Section 501 G-documents, G14, page 63.
The Applicant and Respondent are in agreement that the receiving country for the Applicant is Ethiopia, not Somalia, and the evidence before me does not support Ethiopia being classed as war-torn so I will disregard the reference to the impact on the Applicant’s parents of him being sent to a war-torn country.
The Applicant said he had a very special bond with his family, and that separating him from them would cause all of them great pain and anxiety. He said he speaks with them every day.[148] I accept that the Applicant is in frequent contact with his family as a whole. However, I do not accept that he has always been close with his family or that he is close with the adult members of his family now. First, during the Applicant’s teenage and adult years, his parents had very little knowledge of how he spent his time outside their homes, and they were unaware of very significant matters such as his alcoholism and offending. This indicates a lack of closeness. Second, none of his adult siblings provided letters of support, and neither of his parents referred to any adverse impact of the Applicant’s absence on his adult siblings. Lastly, the Applicant gave evidence that he did not spend much time with his brothers prior to his incarceration. In the context of his evidence that from now on he would spend time with his brothers who would help him to do the right thing, he was asked why he did not socialise with his family rather than his friends, before. He said:
“My brothers most of the time, they’re busy…Yes, they are doing their thing sometimes. So that’s why I started hanging around with other people but now they said they’re going to hang around with me and stuff to help me.”[149]
[148] Transcript, page 11, line 45 to page 12, line 1.
[149] Transcript, page 31, lines 29 to 31.

Mr S has been one of Child T’s carers since April 2020. I found him to be a sincere witness although his admitted desire to help the Applicant get his visa back may have put a tilt on some of his evidence. He said he had witnessed the Applicant’s family having a very difficult time dealing with his visa cancellation and the thought of his deportation. He opined that it would “break them” if the Applicant were to be deported. He thought the Applicant’s father was reaching breaking point, adding that he is very emotional and easily distressed. There is a medical certificate before me, dated in July 2020, that states that the Applicant’s father suffers from severe depression and anxiety.[150] During the Applicant’s father’s evidence he appeared to become overwhelmed and referred to needing his medication. I accept that he suffers from severe depression and anxiety. Mr S thought the Applicant’s mother was coping better as she is stronger but the situation was putting stress on her. He said both parents are worried about the Applicant being in danger.
[150] Exhibit A8, Applicant’s Additional Evidence, page 23.
I find it strange that Mr S did not mention the fact that the Applicant’s step-brother is also in immigration detention, having had his visa cancelled on character grounds. Presumably the prospect of the Applicant’s step-brother being deported would be a source of stress and heartache for the Applicant’s mother and siblings if the prospect of the Applicant’s deportation is. In fact, no submission was made, or evidence given, about how the Applicant’s step-brother’s situation was impacting the family, i.e. the fact that two sons, not one, are facing deportation and the likely impact of both being deported. Without that evidence, I am not satisfied that the heartache and stress Mr S has observed is entirely attributable to the Applicant’s predicament, or that the Applicant’s mother’s stress would be significantly relieved if the Applicant were to get his visa back in the event that his step-brother does not.
While Mr S has referred to the Applicant’s “family” having a very difficult time, there is no specific evidence about the Applicant’s adult siblings and I have not accepted that they have close relationships with the Applicant. However, I accept that within a family unit there are bonds of love and concern. I accept that the Applicant’s parents would feel some emotional hardship if he were to be deported to Ethiopia, that this would particularly impact his father due to his depression and anxiety, that his mother would be without the help he used to provide in her home, and his older siblings would likely be saddened. The Applicant does not claim to have any familial relationships outside his immediate family and nephew.
The Applicant’s main social ties in Australia were to people he considers to be bad influences and no longer wishes to associate with.
Overall, I am satisfied that the effect of non-revocation on the Applicant’s family would be negative to a moderate extent. The Applicant is entitled to limited weight under paragraph 14.2(1)(a) of the Direction.
Overall, the strength, duration and nature of ties to the Australian community warrants the allocation of moderate weight in favour of revocation.
(c) Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. This consideration is not relevant to the determination of this application.
(d) Impact on victims
This Other Consideration (d) requires a decision-maker to assess the impact of a non-revocation decision (i.e. where the Applicant does not get his visa restored to him) upon, inter alia, the Applicant’s victim(s). There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims. This Other Consideration (d), is therefore neutral.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
·international non-refoulement obligations: limited weight in favour of revocation;
·strength nature and duration of ties: moderate weight in favour of revocation;
·impact on Australian business interests: not relevant;
·impact on victims: neutral; and
·extent of impediments if removed: heavy weight in favour of revocation.
CONCLUSION
I am now required to weigh all of the Considerations in accordance with the Direction.
In considering whether there is another reason to exercise the discretion afforded by s501CA(4) of the Act to revoke the mandatory visa cancellation decision, I find as follows:
·Primary Consideration A weighs heavily in favour of non-revocation;
·Primary Consideration B weighs to a limited extent in favour of revocation;
·Primary Consideration C weighs heavily in favour of non-revocation; and
·To the extent that Primary Consideration B and Other Considerations (a), (b) and (e) weigh in favour of revoking the mandatory visa cancellation decision, they cannot, even when combined, outweigh Primary Considerations A and C.
Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 203 (two-hundred and three) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy

.............................[SGD]...........................................
Associate
Dated: 16 April 2021

Date of hearing: 22 and 23 April 2021

Solicitor for the Applicant:

Ms Caitlin White

Fisher Dore Lawyers

Solicitor for the Respondent
Mr David McLaren

Minter Ellison

ANNEXURE A – EXHIBIT LIST

EXHIBIT No

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

G1

Section 501 G-Documents (G1 to G18 pages 1 to 113)

R

-

2 FEB 21

R1

Respondent’s Statement of Facts, Issues and Contentions (19 pages)

R

17 MAR 21

17 MAR 21

R2

Respondent’s Supplementary Documents (1 to 264 pages)

R

-

16 MAR 21

A1

Applicant’s Statement of Facts, Issues and Contentions (18 pages)

A

1 MAR 2021

1 MAR 21

A2

Country Information Bundle - Including indexed documents 1 to 5:

1.    Proclamation on Ethiopian Nationality (No 378/2003)

2.    British Red Cross, “Can’t Stay. Can’t Go. Refused asylum seekers who cannot be returned”

3.    Crisis Group Africa, “Managing Ethiopia’s Unsettled Transition”, No 269

4.    Chatham House, “Can Abiy Ahmed Continue to Remodel Ethiopia?”

5.    The London School of Economics and Political Science (Conflict Research Programme), “Inter-ethnic violence in Ethiopia’s Somali Regional State, 2017-2018”

A

-

3 MAR 21

A3

Statutory Declaration of the Applicant’s Mother (five pages)

A

5 MAR 21

5 MAR 21

A4

Statutory Declaration of the Applicant’s Father (one page)

A

5 MAR 21

5 MAR 21

A5

Statement of the Applicant (nine pages)

A

12 MAR 21

15 MAR 21

A6

Statement of Mr Abdul Mohammed (Queensland Somali Youth Council Inc) (one page)

A

11 MAR 21

15 MAR 21

A7

Applicant’s Reply

A

17 MAR 21

17 MAR 21

A8

Applicant’s Additional Evidence

A

-

17 MAR 21

[2021] AATA 923

7 April 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction

EXHIBIT No	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1 to G18 pages 1 to 113)	R	-	2 FEB 21
R1	Respondent’s Statement of Facts, Issues and Contentions (19 pages)	R	17 MAR 21	17 MAR 21
R2	Respondent’s Supplementary Documents (1 to 264 pages)	R	-	16 MAR 21
A1	Applicant’s Statement of Facts, Issues and Contentions (18 pages)	A	1 MAR 2021	1 MAR 21
A2	Country Information Bundle - Including indexed documents 1 to 5: 1. Proclamation on Ethiopian Nationality (No 378/2003) 2. British Red Cross, “Can’t Stay. Can’t Go. Refused asylum seekers who cannot be returned” 3. Crisis Group Africa, “Managing Ethiopia’s Unsettled Transition”, No 269 4. Chatham House, “Can Abiy Ahmed Continue to Remodel Ethiopia?” 5. The London School of Economics and Political Science (Conflict Research Programme), “Inter-ethnic violence in Ethiopia’s Somali Regional State, 2017-2018”	A	-	3 MAR 21
A3	Statutory Declaration of the Applicant’s Mother (five pages)	A	5 MAR 21	5 MAR 21
A4	Statutory Declaration of the Applicant’s Father (one page)	A	5 MAR 21	5 MAR 21
A5	Statement of the Applicant (nine pages)	A	12 MAR 21	15 MAR 21
A6	Statement of Mr Abdul Mohammed (Queensland Somali Youth Council Inc) (one page)	A	11 MAR 21	15 MAR 21
A7	Applicant’s Reply	A	17 MAR 21	17 MAR 21
A8	Applicant’s Additional Evidence	A	-	17 MAR 21