Luko and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 3024

Luko and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3024 (19 September 2023)
Division: GENERAL DIVISION
File Number(s): 2023/4697
Re: Bartulamous Isaac Luko
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:L M Gallagher, Member
Date:19 September 2023
Place:Perth

The Reviewable Decision, being the decision of the Delegate dated 26 June 2023 not to revoke the mandatory cancellation of the Applicant's Global Special Humanitarian visa (Class XB) (Subclass 202) pursuant to subsection 501CA(4) of the Migration Act 1958 (Cth) (the Act) is affirmed.
..................[Sgd]......................................................
L M Gallagher, Member
CATCHWORDS
MIGRATION – decision of Delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction No 99 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – whether the Applicant has engaged in conduct constituting family violence – strength, nature and duration of ties to Australia – best interests of children – expectations of the Australian community – legal consequences of the decision – Applicant is a 30 year old man who arrived in Australia as a 14 year old – extent of impediments if returned to Sudan – Non-Revocation Decision is affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
CASES
BVLD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 6
CZCV and Minister for Home Affairs [2019] AATA 9
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 293 FCR 507; [2022] FCAFC 115
EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173
FYBR v Minister for Home Affairs [2019] FCAFC 185
Jagroop and Minister for Immigration and Border Protection [2015] AATA 751
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
JVGD and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2830
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143 [194]
Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 65: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (22 December 2014)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Direction No 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (8 March 2021)
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction No 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (23 January 2023) – paras 3, 4(1), 5, 5.1, 5.1(3), 5.1(4), 5.2, 5.2(5), 5.2(6), 6, 7, 7(2), 7(3), 8, 8(1), 8.1(1), 8.1(2), 8.1.1, 8.1.1(1), 8.1.2, 8.1.2(1), 8.1.2(2), 8.2, 8.2(1), 8.2(2), 8.2(3), 8.3, 8.3(1), 8.3(2), 8.4, 8.4(1), 8.4(2), 8.4(3), 8.4(4), 8.5, 8.5(2), 8.5(3), 8.5(4), 9, 9.1, 9.1.2, 9.2, 9.2(1), 9.3, 9.4
REASONS FOR DECISION
L M Gallagher, Member
19 September 2023

The Applicant seeks review of a decision made by a Delegate of the Respondent

(the Delegate) on 26 June 2023 not to revoke, under s 501CA(4) of the Migration Act 1958 (Cth) (the Migration Act), the mandatory cancellation of the Applicant’s Global Special Humanitarian (Class XB) (Subclass 202) visa (the Visa) under s 501(3A) of the Migration Act (the Reviewable Decision).[1]
[1] R2, G4.
The application for review was lodged with the Administrative Appeals Tribunal (the Tribunal) on 29 June 2023,[2] within the time prescribed by s 500(6B) of the Migration Act. The application for review of the Reviewable Decision is made in accordance with s 500(1)(ba) of the Migration Act, which allows applications to be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.
[2]R2, G2.
The hearing was held on 30 August 2023 at the Tribunal in Perth. The Applicant was self-represented and appeared in person. The Respondent was represented by Ms Alexandra O’Grady of Minter Ellison, who appeared by Microsoft Teams video.
BACKGROUND FACTS
The Applicant is a 30-year-old citizen of Sudan, who first arrived in Australia on 8 May 2007 at age 14.[3] The Applicant was granted the Visa on 16 January 2007.[4]
[3] R2, G7, p 37; R2, G17 p 102. The Applicant was born and raised in Ethiopia.
[4] R2, G18, p 103.
The Applicant’s father, stepmother, step siblings, aunties (2), uncle, cousins, former partner, current partner and two minor children live in Australia. The Applicant’s mother lives in Sudan.
Applicant’s offending
The Applicant’s criminal history is set out in a Check Results Report by the Australian Criminal Intelligence Commission, dated 1 May 2020[5] and a History for Court Report by the Western Australian Police Force, compiled on 14 July 2023.[6] The Applicant’s criminal history is extensive, and his record is set out in Annexure A.
[5] R2, G6.
[6] R3, S2.
The Applicant has no other known criminal history in Australia or New Zealand.
The Applicant commenced offending in 2013 at age 20.[7]
[7] R3, S5, p 8.
On 25 February 2020, the Applicant was sentenced to a term of imprisonment of four years and seven months by the District Court of Western Australia for “Sexual Penetration without Consent.”[8]
[8] R2, G6, pp 31-32. The Applicant committed this offence on 1 August 2016 and his sentence was backdated to commence from 28 July 2018: See also R2, G7.
The Applicant’s criminal record (set out in Annexure A) also includes:
(a)Extensive driving related offences, including driving without a licence and driving with a high blood alcohol concentration;
(b)Disorderly behaviour in public;
(c)Breaches of bail undertakings; and
(d)Unlawful conduct including failing to produce a valid ticket when leaving a public passenger service, giving false personal details to police, street drinking and acting in a way as to cause a nuisance, in each year between 2013 and 2018.[9]
[9] See R3, S27.
The Applicant is currently at Yongah Hill Immigration Detention Centre.
Present proceedings
On 29 April 2020, the Visa was cancelled by the Delegate under subsection 501(3A) of the Migration Act (the Cancellation Decision).[10] The Visa was cancelled on the basis that the Applicant did not pass the character test in subsection 501(7)(c) of the Migration Act, by virtue of having been sentenced to a term of imprisonment of 12 months or more.[11]
[10] R2, G18.
[11] R2, G18, pp 103-104. See subsections 501(6)(a) and 501(7)(c) of the Migration Act.
The Applicant was invited to make representations about why the Cancellation Decision should be revoked.[12]
[12] R2, G18, p 104.
On 11 May 2020 and 22 May 2020, the Applicant made representations and provided submissions to have the Cancellation Decision revoked under s 501CA of the Migration Act.[13]
[13] R2, G8, G9.
On 25 June 2020, the Delegate notified the Applicant that it had determined that his representations were not made within the prescribed timeframe.[14]
[14] R2, G16.
On 12 December 2020, the Applicant responded to the Delegate’s notice.[15]
[15] R2, G15.
On 17 January 20222, the Applicant was re-notified of the Cancellation Decision, on the basis that the previous notice dated 29 April 2020 did not comply with requirements of the Migration Act identified in EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173 and Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174.[16]
[16] R2, G19.
Again, the Applicant was invited to make representations about why the Cancellation Decision should be revoked.[17]
[17] R2, G19, pp 111-112.
On 19 January 2022, the Applicant made representations and provided submissions to have the Cancellation Decision revoked under s 501CA of the Migration Act.[18]
[18] R2, G10, G11.
As noted above,[19] on 26 June 2023, the Delegate made the Reviewable Decision.
[19] See [1] above.
The Applicant was notified of the Reviewable Decision the next day.[20]
[20] R2, G3, p 9.
On 29 June 2023, the Applicant lodged an application in the General Division of the Tribunal for review of the Reviewable Decision.[21] Therefore, the Applicant filed his application for review within the one-day period prescribed by s 500(6B) of the Migration Act.
[21] R2, G2.
On 29 June 2023, the applicant applied to the Tribunal for a review of that decision.[22] Therefore, the Applicant filed his application for review within the none-day period prescribed by s 500(6B) of the Migration Act.
[22] R2, G2 pp 4-8.
ISSUES
The Applicant does not dispute that he does not pass the character test.[23] The Tribunal, in any event, so finds: s 501(6)(a) and 501(7)(c) of the Migration Act preclude a person from passing the character test if they have a ‘substantial criminal record,’ which includes a person who has been sentenced to a term of imprisonment of 12 months or more.
[23] Transcript, p 12 [5]-[15].
On the basis that on 25 February 2020, the Applicant was sentenced to a term of imprisonment of four years and seven months for ‘Sexual Penetration without Consent,’ he has a substantial criminal record as defined in the Migration Act and therefore he does not pass the character test.
Accordingly, the remaining issue is whether the Tribunal should exercise the power in s501CA(4) of the Migration Act to revoke the Cancellation Decision.[24] That will require determination under s 501CA(4)(b)(ii) of the Migration Act, as to whether there is “another reason”[25] why the decision to cancel the Visa should be revoked,[26] by having regard to the primary and other considerations in Direction No. 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (Direction No. 99).[27]
[24] See Direction No. 99 para 5.1(3).
[25] See BVLD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 6 at [19] and [21].
[26] The Tribunal notes that the Applicant made representations in accordance with the invitation to do so.
[27]Minister for Immigration, Citizenship and Multicultural Affairs (Cth), (23 January 2023).
The Tribunal’s decision must be made within the 84-day period after the day on which the Applicant was properly notified of the Reviewable Decision, in accordance with s 501G of the Migration Act. If the Tribunal does not deliver a decision by the end of this date, the Reviewable Decision will be taken to be affirmed under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (pursuant to s 500(6L) of the Migration Act).
The 84-day period for the Tribunal to decide this matter ends on 19 September 2023.
LEGISLATIVE FRAMEWORK
Migration Act
Mandatory cancellation of a visa under s 501(3A) of the Migration Act
Section 501(3A) of the Migration Act provides that:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child);
and
(b) the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test
Section 501(6) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by
subsection (7));
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of
12 months or more; or …
(Original emphasis.)
Power to revoke cancellation decision
Section 501CA of the Migration Act further provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)     a written notice that sets out the original decision; and
(ii)    particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be revoked.
(Original emphasis.)
Direction No. 99
Pursuant to s 499(1) of the Migration Act, the Minister may give written directions to a person or body exercising powers under the Migration Act if those directions are about the performance of those functions or the exercise of those powers. Further, s 499(2A) of the Migration Act provides that a person or body must comply with such a direction.
On 23 January 2023, the Minister for Immigration, Citizenship and Multicultural Affairs made Direction No. 99 under s 499 of the Migration Act. Direction No. 99 commenced operation on 3 March 2023, replacing the previous Direction No. 90: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (Direction No. 90), which was revoked on the same date.[28]
[28] Direction No. 99 para 3.
The Tribunal notes that the Reviewable Decision was made by the Delegate applying Direction No. 99, which was the Ministerial direction in force at the time that the decision was made. As there are no transitional provisions in Direction No. 99, all decisions made on or after 3 March 2023 must apply that direction, as the Tribunal must apply law and policy in place at the time that it makes a decision.[29]
[29]See the discussion of the application of previous directions made under Jagroop and Minister for Immigration
The purpose of Direction No. 99 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[30] In exercising the power under s 501CA(4) of the Migration Act, the Tribunal must have regard to the primary and other considerations set out in Direction No. 99.[31]
[30] Direction No. 99 para 5.1(4).
[31] Direction No. 99 para 6.
Paragraph 5.1 of Direction No. 90 sets out ‘[o]bjectives’, with para 5.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a fulltime basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction No. 99 sets out ‘[p]rinciples’ which must be taken into account by decision makers under ss 501 and 501CA of the Migration Act. These principles ‘provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section… 501CA’ and are expressed as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on
non-citizens in the expectation that they are, and have been, law-abiding,
will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian Community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)Decision makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) [32](Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
[32] As there is no para 8.55(2) the Tribunal infers this is a reference to 8.5(2).

Informed by the principles set out in para 5.2 of Direction No. 99, the Tribunal must take into account the primary considerations listed in para 8, and the other considerations listed in para 9, where relevant having regard to the specific circumstances of the case.
The primary considerations in Direction No. 99, in deciding whether to revoke the refusal or cancellation of a non-citizen’s visa, are:[33]
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia;
(5) expectations of the Australian community.
[33] Direction No. 99 para 8.
Paragraph 9 of Direction No. 99 sets out other considerations that the decision maker must take into account. It relevantly provides that:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)legal consequences of the decision;
b)extent of impediments if removed;
c)impact on victims;
d)impact of Australian business interests
Further guidance as to how a decision-maker is to apply the considerations in
Direction No 99 can be found in para 7, ‘[t]aking the relevant considerations into account’, which provides:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
EVIDENCE
The Applicant gave oral evidence at the hearing and was cross-examined.[34] The Applicant also called his father, Isaac Luko Tungula to give evidence.[35]
[34] The Applicant’s evidence is contained within and includes R2, G10 to G12 (Documents G1, G2 and G7).
[35] The Applicant’s father gave evidence by telephone and his evidence appears at A5 and R2, G12 (Document G3).
The Tribunal admitted the following documents into evidence at the hearing:
·Letter from Taoi Roiauri Aberahama (Applicant’s friend), undated (Exhibit A1);
·Letter from Tikeri Tago (Applicant’s friend), undated (Exhibit A2);
·Letter from Samantha Sears (Applicant’s partner), undated (Exhibit A3);
·Further letter from Samantha Sears, undated (Exhibit A4);
·Letter from Isaac Luko Tungula (Applicant’s father), dated 10 July 2023 (Exhibit A5);
·Applicant’s International Health and Medical Services (IHMS) clinical records, as at 7 July 2023 (Exhibit A6);
·Copy of text messages between Applicant and Tameka (Applicant’s friend) (date unknown) (Exhibit A7);
·Copy of message from “Chatbot,” undated (Exhibit A8);
·IHMS Drug and Alcohol Recovery Plan for the Applicant, undated (Exhibit A9);
·Respondent’s Statement of Facts, Issues and Contentions, dated and filed 3 August 2023 (Exhibit R1);
·Respondent’s G-Documents, being a 140-page set of documents provided under s 501G of the Migration Act numbered G1-G20, filed on 7 July 2023 (Exhibit R2); and
·Respondent’s Supplementary Documents, being a 208-page set of documents numbered S1 to S46, filed on 3 August 2023 (Exhibit R3).
The Tribunal has taken into account the letters of support from the Applicant’s family and friends.[36]
[36] See R2, G12, Documents G3 to G6 and A1 to A5.
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine whether, having regard to the primary and other considerations contained within Direction No. 99, there is another reason why the Cancellation Decision should be revoked. The statutory power to revoke will only be enlivened if there is ‘another reason’ why the Cancellation Decision should be revoked.[37]
[37] s 501CA(4)(b)(ii) of the Migration Act.
The Tribunal understands the Applicant takes the view that because:[38]
(a)He has strong ties to Australia;
(b)He has two Australian born minor children whose best interests are served by his remaining in Australia;
(c)He would face potential harm if he were to return to Sudan; and
(d)He is no longer a danger to the Australian community and will not reoffend,
the Cancellation Decision should be revoked.
[38] See for example R2, G2, p 7 and transcript, p 12.
The Respondent is of the view, however, that the first, second and fifth primary considerations[39] weigh very heavily against revocation, and these considerations outweigh any that favour revocation.[40] The Respondent is of the view, therefore, there is not “another reason” why the Cancellation Decision should be revoked.
First primary consideration: Protection of the Australian community (paragraph 8.1 of Direction No. 99)
[39] Being, 1^st: Protection of the Australian community; 2^nd: Whether the conduct engaged in constituted family violence and 5^th: Expectations of the Australian community.
[40] Transcript, p 11, [25]-[35]; R3 [75].
Paragraph 8.1(1) of Direction No. 99 provides that:
(1) When considering protection of the Australian community, decision-makers should keep in mind 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. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of Direction No. 99 then provides:
(2)Decision-makers should also 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.
Nature and seriousness of the conduct (para 8.1.1 of Direction No. 99)
Paragraph 8.1.1(1) of Direction No. 99 provides:[41]
[41] See also Direction No. 99 para 8.1(2)(a).
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i        violent and/or sexual crimes;
ii       crimes of a violent nature against women or children, regardless of the sentence imposed;
iii      acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
i        causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii       crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
iii      any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
iv      where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
h)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
(Emphasis added).
While the Applicant made no submissions in relation to the nature and seriousness of his offending conduct by reference to matters or considerations raised in paragraph 8.1.1 of Direction No. 99, he expressed (in writing and at hearing) the circumstances of his offending conduct and his related views, as follows:[42]
[42] See R2, G10 to G12 (Documents G1, G2 and G7), transcript, p 15 to 24 and R3, S2.
(a)From the time he arrived in Australia in 2007, until 2016 he lived with his biological auntie (his father’s sister) and uncle as their dependant, alongside his biological cousins. They treated him as part of their family, as there was a level of trust and familiarity.
(b)He was aged between 14 and 23 years of age at the time he lived with his auntie, uncle and cousins and his female biological cousin[43] was aged seven to 15 years of age during that time.
[43] The victim of his ‘sexual penetration without consent’ offence for which he was sentenced to four years and seven months in prison.
(c)At some point in 2017, after he moved out of his aunty and uncle’s home, he returned and asked his cousin for a “blow job” and to have sex with him. His cousin said “no,” and he proceeded to penetrate his cousin’s vagina with his penis. He was 23 years old at the time and his cousin was 17.[44] He threatened his cousin not to tell anyone.
[44] The Applicant confirmed he agrees with the facts as stated in the related Amended Statement of Material Facts (R3, S2): Transcript, p 15 [45].
(d)As a result of the sexual assault his cousin contracted chlamydia and fell pregnant with his child.
(e)He pled guilty to the charge because he knew what he did was wrong.
(f)He agrees with the sentencing judge’s remarks that his offending was “of course very serious.”[45]
(g)As to the discrepancy between his statement that he “never once denied [his] crime”[46] and his having denied ever having intercourse with his cousin at the time he was arrested,[47] his denial was due to his having been ashamed and scared at that time.
(h)He does not accepts he entered his guilty plea after forensic evidence proved beyond reasonable doubt he was the father of his cousin’s baby. Rather, he pled guilty because he wanted to do the right thing.
(i)His actions with respect to committing the sexual assault were completely out of character and he is otherwise a person of good character who respects Australian laws.
(j)He was under the influence of alcohol at the time of his sexual offence.
(k)In addition to his alcohol use, he also used cannabis.
(l)At the time he pled guilty to the sexual offence he was unwilling to accept the connection between his abuse of alcohol and the commission of his offences. Now he realises that his offending is attributable to his alcohol use. He accepts that this realisation took place after he received notification that his Visa would be cancelled.[48]
(m)He has engaged in drug and alcohol treatment for the last five months, while in prison and detention. This involves a weekly one-on-one counselling session, seeing a psychologist and attending SMART Recovery. He did not engage in any counselling for alcohol use prior to this time, despite his earlier drink driving and driving convictions.
(n)As to his father’s evidence that, if released, he will live with his father and be under his care, he considers his father will support him to abstain from drug and alcohol use. As to his previous statement on 22 June 2023 that his father was alcohol dependant,[49] he no longer holds this view as his father now goes to church and no longer drinks alcohol at all.
(o)He no longer has any contact with anyone in the Australian community who he knows would engage in illegal activities.
[45] See R2, G7, p 38.
[46] R2, G12, p 79.
[47] R3, S2.
[48] Se for eg R2, G9, p 55 and G12, p 80.
[49] See R3, S44, p 152.
The Respondent made the following observations and contentions in relation to the nature and seriousness of the Applicant’s offending conduct:[50]
(a)The sentencing judge described the Applicant’s offending as ‘very serious’ and aggravated by the fact that the Applicant has lived with the victim and her family for a considerable period of time such that the victim was ‘extremely vulnerable.’[51]
(b)The Applicant has committed a sexual crime, which it considers to be an act of family violence and this should be considered ‘very serious.’[52]
(c)The sexual crime was committed against a person who the Court described as vulnerable, which should be considered ‘serious.’[53]
(d)The seriousness of the Applicant’s offending is reflected in the fact that the Applicant received a custodial sentence, noting that sentences involving terms of imprisonment are the last resort in the sentencing hierarchy.[54]
(e)The Applicant’s extensive criminal history adds to the overall seriousness of his conduct. The Tribunal has noted that driving offences may be serious.[55]
(f)The Applicant’s criminal history demonstrates a frequency in offending, a general disregard for Australian law, and a trend of increasing seriousness which is a further indication of the seriousness of the offending.[56]
[50] R2 G5 [19]-[25] and transcript, p 59 [15]-[25].
[51] See R2, G7, pp 35-38.
[52] Referring to paras 8.1.1(1)(a)(i) and 8.1.1(1)(a)(iii) of Direction No. 99.
[53] Referring to para 8.1.1(1)(b) of Direction No. 99.
[54] Referring to para 8.1.1(1)(c) of Direction No. 99.
[55] Citing QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1 (QJYD) at [51]-[54] per Senior Member Evans-Bonner.
[56] Referring to para 8.1.1(1)(d) of Direction No. 99.
The first primary consideration, Protection of the Australian community from criminal or other serious conduct,[57] requires the decision-maker to look at “the non-citizen’s criminal or other conduct to date” (emphasis added). [58] For completeness, the Tribunal notes there is no “other conduct” to date that falls for consideration in this matter.
[57]Para 8(1) of Direction No. 99.
[58]Direction No. 99, para 8.1.1(1).
In determining whether the Applicant’s conduct should be viewed as serious, the Tribunal notes the facts and circumstances of the Applicant’s offending and the convictions imposed.
The Applicant’s offending conduct is briefly detailed above.[59] The facts of the Applicant’s sexual offending, and its context are set out in the remarks of Stevenson DCJ on 25 February 2020 as follows:[60]
[59] See [6]-[10] above.
[60] R2, G7, p 37-39.
It is of concern and says something about the risk of future offending that you are not prepared to accept the connection between your abuse of alcohol and the commission of your offences and it is of course the hope of the community that at some point you will seek counselling to assist you with respect to the abuse of alcohol.
The offending itself was of course very serious. The victim was at the time aged 17, although some of the reports say 16, and you yourself were aged 24, although some of the reports indicate you were aged 23. The age disparity was about six years, which is a substantial gulf of time given your chronological ages.
The offending is aggravated by reason of the fact that you lived with the victim and her family for a considerable period of time and therefore it does constitute in a sense additional abuse and increased vulnerability by reason of that familiarity between you and the victim.
…
The material before the court indicates that the victim was plainly, as you would have appreciated from your knowledge of her, also extremely vulnerable and you took advantage of that vulnerability in your relationship and also the commission of the offence.
The offending was at the time of its commission coercive and persistent, she having indicated to you that she did not wish to engage in sexual activity. Notwithstanding that, you had unprotected sex with her and you were completely therefore indifferent to the risks involved, including the risk of pregnancy obviously and also the risk of transmitting a sexual disease. Unfortunately for the victim in respect of both of those risks, obviously she became pregnant and also contracted from you chlamydia.
The offence was committed against a background which included a combination of inducements and threats. The impact of the offence has had a significant psychological traumatic impact on the victim as a result of the birth of her child.
And that impact, as can be seen from the victim impact statement written on her behalf, and bearing in mind her own vulnerability, as set out in the neuro-psychological assessment report, indicates that the impact will be ongoing for a very long period of time, and probably for the rest of her life.
On any view, the offending was very serious have regard to those factors, and constituted a breach of trust to the victim by reason of her friendship with you, but also her family by reason of your relationship with them and their friendship with you at the time.
(Emphasis added.)
In assessing the Applicant’s offending and other conduct against the considerations identified in para 8.1.1 of Direction No. 99, the Tribunal has regard to the fact that the Applicant has been in Australia for over 16 years, having come to Australia in 2007 as a 14 year old. Since 2013, the Applicant has consistently engaged in offending and in 2020 he was sentenced to a term of four years and seven months imprisonment.
In relation to para 8.1.1(1)(a) of Direction No. 90, the parties agree and the Tribunal finds that the Applicant’s sexual offending is, by its very nature, very serious.[61] The Applicant has committed crimes of a violent nature against women or children.[62] The Applicant has, however, engaged in acts of family violence.[63]
[61] Para 8.1.1(1)(a)(i) of Direction No. 99.
[62] Para 8.1.1(1)(a)(ii) of Direction No. 99.
[63] Para 8.1.1(1)(a)(iii) of Direction No. 99.
The Tribunal has regard to the fact that the Applicant’s history of offending includes numerous driving and traffic offences, which are serious crimes against other road users. The Tribunal has previously and often cited the seriousness of driving related offences such as those committed by the Applicant.[64]
[64] See QJYD at [51]-[54].
The Tribunal notes that by the Applicant’s own evidence, his offending generally took place at a time when he was under the influence of alcohol, increasing the potential for catastrophic harm.

The Applicant’s offending involved conduct for which he was ultimately sentenced to four years and seven months imprisonment. This conduct forms the basis of the finding that the Applicant did not pass the character test,[65] and is in the Tribunal’s view probative of the seriousness of that offending conduct. The overall seriousness of the Applicant’s offending is further indicated by his prison sentence,[66] being the last resort in the sentencing hierarchy.
[65] Para 8.1.1(1)(b)(iii) of Direction No. 99.
[66] Para 8.1.1(1)(c) of Direction No. 99.
The Tribunal adopts the sentencing judge’s view that the victim was plainly and extremely vulnerable and that the Applicant took advantage of that vulnerability in committing the offence.[67] The Tribunal is of the view that the victim’s vulnerability was also increased by reasons of her familiarity with the Applicant.
[67] Para 8.1.1(b)(ii) of Direction No. 99.
In considering para 8.1.1(1)(b) of Direction No. 99, the Tribunal is also to have regard to whether the Applicant has caused a person to enter into or be a party to, a forced marriage[68] and any crime committed while in immigration detention.[69] In the Tribunal ‘s view, none of the Applicant’s offending or other conduct falls within these categories.
[68] Para 8.1.1(1)(b)(i) of Direction No. 99.
[69] Para 8.1.1(1)(b)(iv) of Direction No. 99.
Similarly, the Tribunal considers that none of the Applicant’s offending or other conduct falls with the scope of paras 8.1.1(1)(f)[70], 8.1.1(1)(g)[71] or 8.1.1(1)(h)[72] of Direction No. 99.
[70] There is no evidence the Applicant has provided false or misleading information to the Department.
[71] The Applicant was never formally warned about the consequences of further offending on his migration status.
[72] The Applicant has no known criminal history outside Australia.
The Applicant’s frequency of offending has been consistently high for a sustained period of time (from 2013 to 2018[73]) and the nature of the Applicant’s most recent offending, being the sexual offence which resulted in his term of imprisonment, is objectively of far greater seriousness. In the Tribunal’s view, this demonstrates a trend of increasing seriousness.[74]
[73] R3, S5.
[74] Para 8.1.1(1)(d) of Direction No. 99.
The Tribunal also considers that any cumulative effect of the Applicant’s offending (repeated offending to the extent that the Applicant committed a considerable number of offences over an extended period of time) is a significant feature of his offending.[75]
[75] Para 8.1.1(1)(e) of Direction No. 99.
Overall, the Tribunal finds that the Applicant has engaged in a range of offending, which, applying Direction No. 99, is serious or very serious. The Applicant has a substantial criminal record spanning 5 years of offending and has engaged in family violence in the context of his sexual offending. Over time, the Applicant’s offending has escalated in frequency and seriousness, as evidenced by his most recent offence.
Therefore, having regard to the evidence to which paras 8.1.1 of Direction No. 99 are relevant, the Tribunal considers the Applicant’s offending and conduct to be very serious.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2 of Direction No. 99)
Paragraph 8.1.2 of Direction No 99 states, in part:[76]
[76] See also Direction No. 99 para 8.1(2)(b).
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i information and evidence on the risk of the noncitizen re-offending; and
ii evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
…
(Emphasis added.)
The Tribunal in CZCV and Minister for Home Affairs[77] (CZCV) summarised the task for the Tribunal as follows:
In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice (2013) 41 VR 359 , [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration & Border Protection (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration & Border Protection (No 2) [2015] FCA 705 at [42]–[43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
In BSJ16 v Minister for Immigration & Border Protection [2016] FCA 1181 Moshinsky J stated that, at [68]: “… there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.” Additionally, in Hambledon v Minister for Immigration & Border Protection [2018] FCA 7, Kenny J at [41] also referred to the basis for the assessment of the risk of reoffending as requiring a “rational and probative basis”.
[77] [2019] AATA 91 [56]–[57]. The Tribunal in CZCV and the Courts referred to in the related cited cases were
considering visa cancellation in the context of predecessors to Direction No. 99 (the CZCV matter itself falling
for consideration by Direction No. 90). Given the similarity in wording, the same considerations and principles
apply to the present matters. The Tribunal therefore follows the approach in these cases.
Nature of the harm (para 8.1.2(2)(a) of Direction No. 99)
Broadly speaking, the Tribunal is required to assess the risk of harm to the Australian community if the Applicant were to engage in further criminal or other serious conduct.

This firstly requires a consideration of the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct.[78]
[78] Para 8.1.2(2)(a) of Direction No. 99.
While the Applicant expressed his sorrow for hurting his victim and his family,[79] the Applicant is yet to, on the evidence before the Tribunal, acknowledge the significant harm that would be caused to the Australian community should he engage in further offending, some of which was violent in nature. The Applicant also submits that he will not reoffend[80] and through his rehabilitation efforts, “like[s] to think [he has] made the most of a bad situation…”[81]
[79] Transcript, p 17 [15].
[80] See for eg, R2, G2, p 7.
[81] R2, G12, p 80.
The Respondent submitted that the nature of the harm should the Applicant reoffend would be similar to that which was caused by his past offending, namely, potentially physical and psychological harm due to the violent and predatory nature of the crime.[82]
[82] R1, p 5 [27], referring to para 8.1.2(2)(a) of Direction No. 99.
The Applicant has been convicted of a significant number of offences, most recently, the sexual offending. In the Tribunal’s view, should the Applicant commit further similar offences, in particular sexual offences, family violence, driving offences and offending whilst under the influence of alcohol or other predatory conduct, this would clearly result in further serious harm that may cause considerable physical, psychological and economic harm to members of the Australian community.
Likelihood of the non-citizen engaging in further criminal or other serious conduct (para 8.1.2(2)(b) of Direction No. 99)
Next, the Tribunal is required to consider the likelihood of the Applicant engaging in further criminal or other serious conduct if he were permitted to remain in the Australian community, taking into account information and evidence on the risk of reoffending, and evidence of rehabilitation, giving weight to time spent in the community since the most recent offence.[83]
[83] Para 8.1.2(2)(b)(i) of Direction No. 99.
The Applicant contended that he would not reoffend,[84] and provided evidence of his rehabilitation efforts (addressed below) however did not make specific contentions in the context of para 8.1.2(2)(b) of Direction No. 99.
[84] See, for eg, R2, G2, p 7.
The Applicant did, however, give evidence that he grew up in Ethiopia not knowing who his real father was,[85] he was “destroy and hurt of circle of pain in [his] life [sic]”[86] and that he had a drug addiction and was also dependant on alcohol at the time of his offending.[87]
[85] R2, G12, p 79
[86] R2, G 12, p 78
[87] R2, G11, p 74.
The Applicant gave evidence that he attributes his offending behaviour to his alcohol abuse[88] and says he had been attending Alcoholics Anonymous meetings on a fairly regular basis.[89]
[88] For example, R2, G9, p 55 and G12, p 80.
[89] R2, G12, p 80.
As to the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Respondent acknowledged the evidence before the Tribunal speaking to the Applicant’s remorse and rehabilitation.
The Respondent contended however, having regard to the Applicant’s very serious offending, there remains a real likelihood that the Applicant will reoffend in a similar manner. The respondent contended that this risk poses an unacceptable risk to the Australian community for the following reasons:[90]
(a)The Applicant’s acceptance of the relationship between his offending behaviour and his alcohol use appears to have only developed since the cancellation of the Visa, because the Applicant was not prepared to accept the connection between his abuse of alcohol and the commission of his offences before the sentencing judge.[91]
(b)While the Applicant did eventually plead guilty to the sexual assault, he previously denied having sexual intercourse with his cousin. The Applicant’s statement that he ‘never once denied’ the crime[92] appears to be contradicted by the sentencing judge’s remarks that the Applicant ‘maintained a stance of denial’ until forensic evidence proved beyond reasonable doubt that he was the father of the victim’s child.[93] This is concerning to the Respondent.
(c)In this context, the Applicant’s claimed remorse should instead be taken as an expression of regret from the effects the offending has had on his immigration status.
(d)In terms of rehabilitation, the Applicant has engaged in counselling and rehabilitation courses.[94] However, the Applicant’s claimed rehabilitation has not been tested for any length of time in the community with the pressures of everyday life.
(e)While the Applicant has been in prison and detention since conviction, he has previously been convicted of numerous drinking and driving offences and street drinking prior to his conviction, yet never sought alcohol rehabilitation services.
(f)Limited weight should be given to the Applicant’s father as a protective factor, in circumstances where his father gave evidence that he was not aware of his son’s alcohol problem, that he had no knowledge of his son’s other convictions apart from the sexual assault conviction, and claimed that quitting alcohol was “easy” because he was able to quit alcohol easily himself.[95]
(g)Additionally, the support the Applicant’s father indicated he could provide included helping the Applicant to find employment; and yet, he confirmed that the Applicant was already employed when he committed the sexual assault offence.[96]
[90] R1 [28]-[32]; Transcript, pp 59-60.
[91] See R2, G7, p 38.
[92] R2, G12, p 79.
[93] R2, G7, p 36.
[94] R2, G12, pp 79-80, 89-92.
[95] Transcript, pp 46, 48 to 51.
[96] Transcript, p 50.
The Tribunal has considered the available evidence and the parties’ submissions in relation to the Applicant’s risk of reoffending.
Firstly, the Tribunal recognises that the Applicant has taken a number of steps to rehabilitate, albeit only in more recent times. The Applicant has provided evidence that he has undertaken a number of courses while in prison and detention:[97]
(a)Educational TAFE programs – being a Traffic Management Skills Set, a White Card Skills Set, Check and Operate a Forklift Truck skill set;
(b)Certificate III in Meat Processing (Slaughtering);
(c)ASETS Apply Workplace Health and Safety Concepts; and
(d)The Sex Offending Programs offered by Bunbury Regional Prison and Karnet Prison Farm.
[97] R2, G12, Document G7.
The Applicant also claims to have commenced drug and alcohol treatment five months ago, including counselling, and that he is currently attending a psychologist, SMART Recovery and Alcoholics Anonymous.[98]
[98] The Tribunal has no documented evidence of these endeavours, however notes references in the Applicant IHMS records to his Applicant’s planned attendance at SMART Recovery in July 2023 and a drug and alcohol recovery plan in 2020: For example, R3, S44, pp 144 and 146 and A9. The Applicant also claims to have completed ‘Standing on Solid Ground,’ Pathways and Narcotics Anonymous (R2, G11, p 74) while in prison, however there is no supporting documentary evidence of such.
The Tribunal notes the Applicant’s claims to reside with his father if released and his father’s willingness for this to occur. The Tribunal has concerns over the Applicant’s father as a protective factor in circumstances where he does not have full knowledge of the Applicant’s offending or his alcohol problem and his own personally held views that giving up alcohol is “easy”.[99] Similarly, the Applicant identified Ms Sears as his partner. Ms Sears did not appear as a witness at hearing and hence her evidence as to their relationship and any support she may provide to the Applicant upon release is untested. Further, the Applicant’s friends or community contacts did not give evidence at the hearing and hence the Tribunal did not have the opportunity to hear from them on these matters.
[99] Referred to in transcript, p 48.
The Tribunal acknowledges there is no expert opinion available to it as to the Applicant’s risk of future offending (or the related risk of him relapsing into drug and alcohol use). While the Applicant claims he will not re-offend, it is unclear whether his current rehabilitation efforts will continue if released given their recency and the lack of evidence of the Applicant’s plans in this regard.
The Applicant’s initial denial of his sexual offending and of the relationship between his alcohol use and his offending generally stands contrary to his formal acknowledgement of the seriousness of his offending. In the same vein, while the Tribunal accepts the Applicant is remorseful for the effect his offending has had on his own life and apologetic to his family, the Australian community and to the victim of his sexual offending, it considers the Applicant has failed to demonstrate remorse for the devastating impact his offending has had on the victim and her family.
It is this insight (which is lacking) that one might view as a protective factor against reoffending. That is, the Tribunal cannot be satisfied that if he were presented with a future opportunity to reoffend, that he would not do so.
Overall, having considered all of the evidence of the Applicant’s circumstances, the Tribunal is of the opinion that there is a moderate risk that the Applicant will reoffend in a similar manner. In the context of the Applicant’s sexual offending, the Tribunal considers that the harm that would be caused, if it were repeated is so serious that any risk that it may be repeated is unacceptable.[100]
[100] Para 8.1.2(1) of Direction No. 99.
Conclusion on the protection of the Australian community
Having regard to the nature and seriousness of the Applicant’s offending and conduct, and to the risk to the Australian community should the Applicant commit further offences or other serious conduct, the Tribunal finds that this primary consideration weighs very heavily against revocation of the Cancellation Decision.
Second primary consideration: Whether the conduct engaged in constituted family violence (para 8.2 of Direction No. 99)
Paragraph 8.2 of Direction No. 99 provides that decision-makers must have regard to family violence perpetrated by the non-citizen when deciding whether to refuse or cancel a visa under s 501 of the Migration Act:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person's last known act of family violence, including:
i.       the extent to which the person accepts responsibility for their family violence related conduct;
ii.      the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.     efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the non citizen's migration status, should the non-citizen engage in further acts of family violence.
“Family violence” is defined in para 4(1) of Direction No. 99 as:
violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
a)an assault; or
b)a sexual assault or other sexually abusive behaviour; or
c)stalking; or
d)repeated derogatory taunts; or
e)intentionally damaging or destroying property; or
f)intentionally causing death or injury to an animal; or
g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominately dependent on the person for financial support; or
i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
j)unlawfully depriving the family member, or any member of the family member’s family, or his or her liberty.

The meaning of ‘family member’ is not defined and, where it is necessary for the Tribunal to consider whether or not a victim of offending was a ‘family member’ for the purpose of Direction No. 99, should not be narrowly construed.[101] The Court has found that the term used in Direction No. 99 extends at least to persons who are related to each other, are living together and who are financially dependent on each other.[102]
[101] Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 293 FCR 509; [2022] FCAFC 115 (Deng) at [123]-[124] per Farrell, Moshinsky and Burley JJ.
[102] Deng at [91].
The Tribunal is required to consider whether family violence considerations arise on any of the submissions, materials or evidence before the Tribunal.
The victim of the Applicant’s offending was his biological cousin, who he lived with from 2007 to 2016 when he was aged 14 to 23 years and the victim was aged seven to 15 years.[103] The Applicant gave evidence that he was brought up by his aunt.[104]
[103] R3, S2, pp 2-3.
[104] R3, S44, p 146.
The Tribunal therefore infers[105] that the Applicant was raised alongside his biological cousins as if they were siblings. A relationship of this nature has been found to constitute a ‘family member’ for the purposes of Direction No. 99.[106]
[105] As was contended by the Respondent: R1 [36].
[106] See JVGD and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2830 at [132]-[133].
Although the offending took place in 2017, after the Applicant was no longer living in his aunt’s home with his aunt, uncle, the victim and his other cousins, the fact that the Applicant and his victim were biologically related to each other, brought up by the same aunt/mother and lived in the same house for 9 years, the Tribunal finds that the Applicant was a ‘family member’ for the purposes of Direction No. 99.
The Tribunal also finds that the Applicant engaged in family violence as defined,[107] which is relevant on the basis he has been convicted of an offence involving family violence.[108]
[107] The Applicant’s sexual offence constitutes “a sexual assault or other sexually abuse behaviour” and constitutes family violence as defined in para 4(1) of Direction No. 99.
[108] See para 8.2(2)(a) if Direction No. 99.
The Respondent also noted that:[109]
… [T]here is a record of the Applicant being accused of ‘sexually penetrating a child of or over 13 and under 16’ in the material returned pursuant to a summons issued in this matter to Western Australia Police Force. Although the name of the victim is redacted, the age difference between the victim and the Applicant for this conduct is the same as that for the conduct which led to the ‘sexual penetration without consent’ charge and conviction. Accordingly [the Tribunal is invited] to infer that the victim of this conduct was the same biological cousin as the victim of the sexual crime for which the Applicant was convicted. Although the Applicant was not convicted of ‘sexually penetrating a child of over 13 and under 16,’ …this is information from an independent and authoritative source indicating the Applicant had been involved in the perpetration of family violence, subject to the Applicant being afforded procedural fairness on this point at hearing.[110]
[109] R1 [39].
[110] Referring to para 8.2(2)(b) of Direction No. 99.
At hearing, the Applicant gave evidence that he has never had sex with his biological cousin other than the time for which he was convicted of sexual assault.[111] However, this stands in contrast to the Applicant’s father’s evidence that he recalls the Applicant having been arrested between 2014 and 2015 for conduct of this nature.[112]
[111] Transcript, p 26 [25]-[35].
[112] Transcript, p49 [20]-[35].
While there is no evidence to indicate that the Applicant’s family violence offending has been frequent, there is at the least, the invitation to infer it has been repeated.[113] In which case, any cumulative effect would be serious.[114] In the present matter, the Tribunal considers it is necessary only to say there is a reasonable likelihood that the incident referred to at [98] above involved the Applicant.
[113] Para 8.2(3)(a) of Direction No. 99.
[114] Para 8.2(3)(b) of Direction No. 99.
As noted by the Respondent,[115] although the Applicant has apologised for the hurt that he caused the victim[116] he does not appear to understand the impact of his offending behaviour on the victim. The Tribunal agrees. Further, the Applicant has sought to contact the victim in breach of a lifetime apprehended violence order as recently as 20 May 2023.[117] While the Applicant denied the attempt was made, he did concede this behaviour could be seen as breaching the order and that his has the potential to negatively impact a victim of such an order.[118]
[115] R1 [40].
[116] R2, G12, p 79.
[117] R3, S24, p 29. See para 8.2(3)(c) of Direction No. 99.
[118] Transcript, p 25 [30]-[40].
While there is no evidence that the Applicant has re-offended since being made aware by a Court of the consequences of further acts of family violence, the Tribunal does not consider this is any way reduces the seriousness of the Applicant’s family violence conduct.[119]
[119] Para 8.2(3)(d) of Direction No. 99.
Based on the above, in circumstances where Direction No.99 emphasises that the Government has serious concerns about conferring upon a citizen who has engaged upon family violence a right to remain in Australia,[120] the Tribunal considers that this primary consideration weighs very heavily against revocation of the Cancellation Decision.
Third primary consideration: The strength, nature and duration of ties to Australia (para 8.3 of Direction No. 99)
[120] Para 8.2(1) of Direction No. 99.
Direction No 99 provides that:
(1)Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(3)The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4)Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a)the length of time the non-citizen has resided in the Australian community, noting that:
i.      considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.     more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii.    less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia
In relation to the strength, nature and duration of the Applicant’s ties to Australia, the Applicant gave evidence that:[121]
[121] Transcript, pp 27 to 34.
(a)He has, in Australia, his father, two step-sisters, four step-brothers and two children as immediate family members in Australia.[122]
[122] R2, G11, p 69, 73. The children identified are his daughter, aged 9 by his ex-partner and his son, aged 5, by his biological cousin and victim.
(b)His family of the side that is related to his victim is “hurt” and “not happy” with him about the sexual conviction. His immediate family feels “sad” and “stressed” by his Visa cancellation[123] and would be devastated is he was unable to remain in Australia.[124]
[123] R2, G9, p 54.
[124] R2, G11, p 73.
(c)He is in weekly contact with father, who lives in Australia.
(d)He has had no contact with his stepmother (who lives is in Australia but is no longer in a relation with his father) since he went to prison.
(e)He is in telephone contact with his stepsiblings who live in Australia, once every two weeks. He is very close with them.
(f)His mother lives in Sudan. Before he came to Australia, he lived with his mother and half-siblings in Ethiopia.
(g)He has biological half-siblings in Africa, with whom he is not in contact. From what his father has told him, his half-siblings live with his mother. He does not know their ages but recalls living with them and his mother in Ethiopia.
(h)He has spoken to his auntie (the victim’s mother and his father’s sister) on one occasion, on the telephone, since his sexual offence.
(i)He has another auntie in Australia, with whom he is not in contact and a number of cousins.
(j)He is not in contact with his ex-partner (the mother of this daughter), although he is “very close” to his daughter.[125]
(k)Mr Sears is his partner and is also a friend of his ex-partner. It is a recent partnership. They talk every night on FaceTime. Ms Sears knows the nature of the sexual offence for which he was convicted. Ms Sears has full custody of three children of her own.
(l)For the last three months, Ms Sears picks up his daughter from his ex-partner’s house and has her visit for the weekend. There is no formal arrangement for this and he is unsure why his ex-partner has allowed this more recently when she had not done so in the past.
[125] R2, G12, p 79.
The Respondent submitted that the strength, nature and duration of the Applicant’s ties to Australia weigh in favour of revocation of the Cancellation Decision, however this consideration should not attract significant weight, and that it does not itself or collectively or with the other considerations which weigh in the Applicant’s favour, outweigh the primary considerations of the protection of the Australian community, family violence and the expectations of the Australian community, that weigh in favour of non-revocation. [126] The Respondent gave the following reasons for this submission:[127]
(a)The sentencing remarks indicate that the Applicant has not seen his step siblings since coming to Australia and that he was ‘disassociated’ from his father.[128] It accepts, however that it appears the Applicant and his father have since reconciled, given his father’s letters of support and his having stated that the Applicant can reside with him if released.[129]
(b)The Tribunal is required to give more weight to ties with the Applicant’s children.[130] However, the evidence suggests that the Applicant has a relationship with his daughter only.[131]
(c)The Applicant has submitted that he had two aunts/uncles and 11 cousins in Australia who will be adversely affected by a decision to not revoke the Cancellation Decision.[132] It is unclear whether the Applicant has intended to include the victim of his offending in this number. If this is the case, the victim has a lifetime restraining order against the Applicant and the Applicant has reported that he has no contact with her.[133] Accordingly, little weight should be placed on the Applicant’s ties with his cousins.
(d)In terms of friends who will be adversely affected by the decision, the Applicant has provided letters of support from (five) friends.[134]
(e)The Applicant has resided in Australia for 17 years, having arrived as a child at 14 years old. It would be appropriate to interpret ‘formative years’ as a person’s childhood years and, in this respect, the Applicant was not ordinarily resident for the majority of his formative years.
[126] R1 [51].
[127] R1 [44], [46]-[50]
[128] R2, G7, p 37.
[129] R2, G12, p 81.
[130] Para 8.3(2) of Direction No. 99.
[131] R3, S44, p 146.
[132] R2, G11, p 73.
[133] However, see [101] above.
[134] R2, G12, p 82, pp83-84, p 85, A1 and A2.
The Tribunal is required to consider any impact of the decision on the Applicant’s immediate family members in Australia, where those family members are Australian citizens, permanent residents of Australia or have an indefinite right to reside.[135]
[135] Para 8.3(1) of Direction No. 99.
The Applicant has provided a body of lay evidence regarding his familial and social connections in support of his case.[136] The evidence predominantly focuses on his relationships with his father and his claimed current partner. The Tribunal does not seek to, nor does it consider it necessary, to summarise the entirety of the evidence here and notes it has considered the numerous available statements in the context of this consideration (along with the oral evidence of the Applicant’s father, the only witness called by the Applicant at the hearing).
[136] See [45] and related footnote.
The Tribunal is of the view that the Applicant’s evidence regarding the nature and extent of his familial relationships is vague and inconsistent. The Applicant claims he has a relationship with his father, stepmother and stepsiblings. The Tribunal accepts the Applicant has a relationship with his father, albeit relatively recent and the strength of which is really yet to be tested.
The Applicant gave evidence that he speaks with his stepsiblings once per fortnight, however his father gave oral evidence that the Applicant has never lived with his stepsiblings and that they would only see each other a few times a year at family gatherings.[137]
[137] See transcript, pp 51-52.
As to the Applicant’s friends who have provided letters of support, there is no reason why these friends cannot continue to support the Applicant via electronic means in circumstances where he has been in prison and detention for several years.
As to the Applicant’s relationship with Ms Sears, she and the Applicant refer to each other as ‘partner’ and Ms Sears refers to the impact of the visa cancellation of their family, and in particular, their children (being Ms Sears’ children).[138] However, their relationship is recent, Ms Sears did not give evidence at the hearing, and as such the Tribunal has not heard her account of the claimed challenges she would stand to face if the Applicant were removed from Australia.
[138] The Tribunal notes Ms Sears did not give evidence at the hearing, and as such little weight should be placed on her claimed relationship with the Applicant.
The Applicant has resided in Australia since 2007 for over 16 years, since the age of 14. The Applicant’s first offence took place in 2013 and he has consistently offended since. While the Tribunal accepts the Applicant has been employed in the past, evidence of any positive contribution by him to the Australian community is limited.
The Tribunal is not satisfied that there is sufficient evidence to support the Applicant’s claim of his strong ties to Australia. Overall, the Tribunal considers that this consideration weighs slightly in favour of revocation of the Cancellation Decision.
Fourth primary consideration: The best interests of minor children in Australia affected by the decision (para 8.4 of Direction No. 99)
Paragraph 8.4 of Direction No. 99 provides, in part:
(1)Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(Emphasis added.)
Paragraph 8.4(4) of Direction No. 99 continues to outline the factors that a

decision-maker must consider when determining the best interests of a child:
(4)In considering the best interests of the child, the following factors must be considered where relevant:
a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)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;
d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
e)whether there are other persons who already fulfil a parental role in relation to the child;
f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
The Applicant’s minor children
The Tribunal must make a determination about whether revocation is in the best interests of the child.[139] This primary consideration only applies with respect to children under 18 years old at the time of the decision to revoke or not revoke the cancellation.[140]
[139] Para 8.4(1) of Direction No. 99.
[140] Para 8.4(2) of Direction No. 99.
The Applicant has two minor biological children:
(a)A daughter, aged 9, by his ex-partner.
(b)A son, aged 5, by his biological cousin who is the victim of his offending.
The Applicant is of the view that it is in the best interests of his minor children that the Cancellation Decision be revoked. The Applicant made no specific submissions in this regard, however, he did make a number of claims regarding his close relationship with his daughter and his desire for a relationship with his son, should they be able to meet in the future:[141]
(a)In relation to the Applicant’s daughter, he used to see her weekly prior to his going to prison. On these occasions, he would see her alone and she would come to sleepover at his house. He did not see her more regularly during this period because he had to work. He was also “constantly drinking” at this time, although never in his daughter’s presence. He did not see his daughter while he was in prison, because his ex-partner “didn’t want to confuse the kid and everything.” Instead, while in prison he spoke to his daughter around once every three days on his ex-partner’s phone. This contact with his daughter occurred for the duration of his prison sentence, minus a ten month period during which his daughter was taken away from her mother and minus the period when he was first arrested. That is, contact with his daughter has been re-established in the last two years. His ex-partner/daughter’s mother knows of the sexual offence for which he was convicted. His ex-partner has re-partnered, lives with her new partner and they have had “probably five” children together. His ex-partner’s new partner plays a father role to his daughter. He has an amicable relationship with his ex-partner,[142] but does not know why she has not provided a statement in support of his case. He never asked her to do so. He is yet to discuss with his ex-partner the parenting plan with their daughter, if he were to be released. He could, if removed from Australia, continue to communicate with his daughter in Sudan via telephone.
(b)In relation to the Applicant’s son, they have never met. He is unsure if they would be allowed to meet and intends to seek legal advice on this matter should he “get out of this situation.” He has not had any access to his son while in prison. He does not know why he previously gave evidence that[143] the mother of his son was his former partner and that they were engaged in mediation despite being the subject of a lifelong family violence order.[144]
[141] Transcript, pages 34 to 42.
[142] See R3, S44, p 152.
[143] See the decision regarding the Applicant’s protection visa application, which refers to evidence given at the Applicant’s protection visa interview on 26 October 2021: R3, S46, p 199.
[144] The Applicant has also referred to his victim/cousin/son’s mother as his former partner in an earlier statement (see R2, G12, p 79), which he has no explanation for and says he understands the victim of his sexual assault was not his partner (transcript, p 39 [35]-[45]. While the Tribunal accepts these references were made by mistake, it still holds concerns over the fact these references were made at all.

In relation to the best interests of the Applicant’s minor aged daughter and son, the Respondent submitted that:[145]
(a)It appears the Applicant has no relationship with his son[146] and has never met him.
(b)The Applicant’s claim that his daughter is ‘clearly in a state of anguish,’ stands in contrast with the evidence that his relationship with his daughter is recently formed and their contact is limited.
(c)The Tribunal can have no confidence that the Applicant would play a positive parental role in the lives of his children given his history of offending and the lack of evidence from the children’s mothers.
(d)There is no evidence of the impact of the Applicant’s past conduct on his children and there is limited evidence of the likely impact the separation would have on the children. If removed, the Applicant would be able to maintain contact with his daughter by electronic means which would be more contact than what he currently has with her.
(e)There are other persons who fulfil the parental role in relation to the care of the Applicant’s children (the children’s mothers and the Applicant’s ex-partner’s new partner).
[145] R1, [53], [54].
[146] The Applicant stated as such in his Personal Circumstances Form dated 19 January 2022 (R2, G11, p 70).
The Respondent submitted that therefore, while it is prima face in the best interests of the relevant minor children for the Applicant to remain in Australia, this primary consideration should attract no more than limited weight in the Applicant’s favour.[147]
[147] R1 [55].
The Tribunal has considered the available evidence and considers the interests of the Applicant’s minor children he claims would be affected by the decision are as follows:[148]
(a)The Applicant has never met his son. He is also unlikely to, in the Tribunal’s view, in circumstances where his son’s mother has a lifetime family violence order against the Applicant. The Applicant’s relationship with his daughter is non-parental, has endured long periods of absence and lengthy periods with limited meaningful contact. Hence, less weight should be given to these relationships.[149]
(b)Indeed, the evidence before the Tribunal as to the nature and extent of the Applicant’s relationship with his daughter is inconsistent. The Applicant initially confirmed that he spoke with his daughter once every three days whilst in prison and he later confirmed that he had no contact with his daughter for the first two years of his prison sentence as his daughter had been removed from her mother’s care.[150]
(c)Further, there is no statement from the Applicant’s daughter’s mother about her view of what the parenting arrangements would be should the Applicant be released. The Applicant confirmed he has not discussed this with his daughter’s mother as such. The Applicant claims to speak to his daughter on the telephone as facilitated by his daughter’s mother and by Ms Sears.
(d)The Tribunal accepts the Applicant desires a relationship with his children if released. While there are some years until the Applicant’s children turn 18 years of age (9 and 12 years, respectively), the Tribunal considers that the Applicant is unlikely to play a positive parental role in their lives given his history of offending, and the lack of evidence from the children’s mothers regarding the parental role, if any, the Applicant would play.[151] Neither of the Applicant’s children’s mothers (or Ms Sears) provided statements or gave evidence before the Tribunal. Further, the Applicant has been found to have an unacceptable risk of reoffending. This, in the Tribunal’s view, raises further question over the Applicant’s ability at present to be a positive role model for these minor children.
(e)There is no evidence as to the likely effect that any separation from the Applicant would have on his children.[152] The Applicant agreed he would be able to contact his daughter via telephone should he return to Sudan.
(f)The Tribunal understands that he Applicant’s daughter’s mother has re-partnered, gone on to have five additional children with her current partner, whom the Applicant agrees plays a father figure role to his daughter. The Tribunal also understands that the Applicant’s son’s mother fulfils the parental role in relation to their son.[153]
(g)The views of the Applicant’s children are unknown.[154]
(h)There is no evidence that the Applicant’s prior conduct has had or will have a negative impact on his minor children,[155] that his minor children have been, or are at risk of being subject to, or exposed to family violence by the Applicant,[156] or that they have suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct.[157]
[148] The Tribunal has considered the Applicant’s minor children’s best interests in common where applicable and individually to the extent that their interests differ: Para 8.4(3) of Direction No. 99.
[149] Para 8.4(4)(a) of Direction No. 99.
[150] Transcript, pp 41 to 61
[151] Para 8.4(4)(b) of Direction No. 99.
[152] Para 8.4(4)(d) of Direction No. 99.
[153] Para 8.4(4)(e) of Direction No. 99.
[154] Para 8.4(4)(f) of Direction No. 99.
[155] Para 8.4(4)(c) of Direction No. 99.
[156] Para 8.4(4)(g) of Direction No. 99.
[157] Para 8.4(4)(h) of Direction No. 99.
Hence, overall the Tribunal finds that the best interests of the Applicant’s minor children weigh slightly in favour of revocation of the Cancellation Decision.
Fifth primary consideration: Expectations of the Australian community (para 8.5 of Direction No. 99)
Paragraph 8.5 of Direction No. 99 states:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2)In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
(Emphasis added.)
The Tribunal also refers to the principles set out in para 5.2 of Direction No. 99.[158]
[158]Set out in [38] above.
As noted at para [34] above, Direction No. 99 superseded Direction No. 90 on 23 January 2023. Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (NTTH) [159] noted that the provisions of Direction No. 90 contain generally similar wording to the corresponding provisions in Ministerial Direction No. 65 (Direction No. 65), the predecessor to Direction No. 79.[160] Those corresponding provisions in Direction No. 65 were considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (FYBR).[161]
[159][2021] AATA 1143 [194].
[160]As do the provisions of Direction No. 99 – they contain generally similar wording to the corresponding
provisions in Direction No. 90.
[161][2019] FCAFC 185.
In this context, the Tribunal is guided by Deputy President Boyle in Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208 (Wightman) at [86] to [87]:
Senior Member Morris at [195] and [196] of NTTH summarises the view expressed by the Full Court in FYBR and the adoption of some of the language of the judgment in FYBR into Direction 90 as follows:
It was the Court’s view that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed— they are what the executive government has declared are its views, not what a decision-maker may derive by some other assessment or process of evaluation.
It is significant that the new Direction imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which I take to be an acknowledgement of the approach taken by the plurality of the Court in FYBR. …
This Tribunal respectfully agrees with Senior Member Morris. In Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, this Tribunal summarised the effect of the Full Court’s judgment in FYBR and the current state of the law as follows:
.… The Full Court, in effect, found that the narrow approach taken by Mortimer J in YNQY and by Perry J in FYBR is the correct approach. That is the approach that the proper characterisation of this consideration is a ‘kind of deeming provision’- expressing “an expectation deemed by the government to be held by the Australian community” (FYBR (FC) at [61] and [80] per Charlesworth J; see also Stewart J at [89]). A thorough analysis of the Full Court decision in FYBR (FC) is set out by Member Burford at [162]–[170] in her decision in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Rehman). See also decisions of the Hon. John Pascoe AC CVO, Deputy President in Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs at [77]–[78].
Special leave was sought to appeal the decision in FYBR (FC). On 24 April 2020 the High Court (Kiefel CJ and Keane J) refused special leave.
Justice Stewart in FYBR (FC) found:
It is therefore to be expected that the Government of the day may wish to set the norms by which decisions to refuse or cancel visas are made. Where those norms are expressed, at least in part, as reflecting “community expectations” then, in that sense, they might accurately be understood as “deeming” what the community expectations are. That is because, as indicated, as a matter of practical reality there is no one or even necessarily dominant set of community expectations in this field.
However, it is not to be expected that the Government of the day would seek, via the device of “community expectations” or otherwise, to dictate to the statutory decision-maker the outcome of a visa refusal or cancellation in any particular case. That would be inimical to the process of decision-making that has been set up under the Migration Act and it would constitute unlawful dictation to the decision-maker: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590–591 per Bowen CJ and Deane J; Bread Manufacturers of NSW v Evans [1981] HCA 69 ; 180 CLR 404 at 429–430 per Mason and Wilson JJ; CPCF v Minister for Immigration and Border Protection [2015] HCA 1 ; 255 CLR 514 at [37] per French CJ and [292] per Kiefel J.
The above contextual factors lead to two guiding considerations to the proper construction of Direction 65. First, “community expectations” as expressed normatively are what the Government says that they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, “community expectations” as expressed by the Government do not speak to the outcome in any particular case — they are to be understood and applied normatively.
Justice Charlesworth also observed:
Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
…
.… The Tribunal must in all cases determine whether it is appropriate to refuse to grant the visa. In an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be. In such a case, the decision-maker would depart from the relative ascription of weight for which cl 8(4) “generally” provides, as he or she is permitted to do. Read as a whole, the reasons of the primary judge should not be understood as suggesting otherwise.
Member Burford put it in Rehman as follows:
It follows that in deciding whether or not to revoke a cancellation decision, the Tribunal must have due regard to the statement of the Government’s view deeming the expectations of the Australian community to be that the Applicant, having committed a serious crime, should not hold the visa.
Those expectations remain a primary consideration to which appropriate weight must be given. As expressed, or “deemed” in the Direction, they weigh against revocation with respect to “serious crimes”.
However, it remains for the Tribunal to determine what constitutes appropriate weight to be given to this consideration in the ultimate decision. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other consideration.
(Footnotes omitted.)
The Applicant made no specific submission regarding the expectations of the Australian community.
In relation to the expectations of the Australian community, the Respondent submitted that owing to the very serious nature of the Applicant’s criminal offending, the Australian community would expect the Tribunal not to revoke the Cancellation Decision.[162] The Respondent submitted that this consideration should weigh heavily against revocation.
[162] R1 [59].
The Tribunal considers that the nature of the character concerns in this instance are objectively serious, and the nature of the Applicant’s offending is such that the deemed community expectation that the cancellation is not revoked ought to be applied.[163]
[163] Paras 8.5(2)(a) and (c), referring to the Applicant having engaged in family violence and sexual offending.
The Tribunal proceeds on the basis that Direction No. 99 establishes a norm of the Australian community’s expectations, which should be applied by the Tribunal irrespective of whether the Applicant is founds to pose a measurable risk of causing physical harm to the Australia community, and without reference to any independent assessment of the community’s expectations in this case.[164]
[164] Referring to paras 8.5(3) and 8.5(4) of Direction No. 99.
The Applicant’s conduct has breached this community expectation by not obeying Australian laws. The Applicant has engaged in family violence, sexual offending, extensive driving related offences, including driving without a licence and driving with a high blood alcohol concentration, disorderly behaviour in public, breaches of bail undertakings, unlawful conduct including failing to produce a valid ticket when leaving a public passenger service, giving false personal details to police, street drinking and acting in a way as to cause a nuisance. Consequently, the expectation of the Australian community would be that the Visa should remain cancelled.
Due to the application of the “norm” in para 8.5(1) of Direction No. 99 and the deeming operation of the corresponding direction as found by the Full Court in FYBR, this primary consideration weighs very heavily against revocation of the Cancellation Decision.
The Tribunal makes this finding notwithstanding the fact that the Applicant has been in Australia for approximately half his life (although not from a very young age) and that a slightly higher tolerance level may be afforded to him.[165]
[165] Para 5.2(5) of Direction No. 99.
Other considerations (para 9 of Direction No. 99)
Paragraph 9 of Direction No. 99 states:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)legal consequences of the decision;
b)extent of impediments if removed;
c)impact on victims;
d)impact on Australian business interests
Legal consequences of decision under section 501 or 501CA (para 9.1 of Direction No. 99)
Paragraph 9.1 of Direction No. 99 states:
(1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(2) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
(3) International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
(Emphasis added.)
Paragraph 9.1.2 of Direction No. 99 states:
(1) Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.
(2) However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person’s representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.
(3) Non-refoulement obligations that have been identified for a non-citizen with respect to a country, via an International Treaties Obligations Assessment or some other process outside the protection visa process, would not engage section 197C(3) to preclude removal of the non-citizen to that country. In these circumstances, in making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct. However, that does not mean an adverse decision under section 501 or 501CA cannot be made for the non-citizen. A refusal, cancellation or non-revocation decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen makes a valid application for a protection visa, the non-citizen would not be liable to be removed while their application is being determined.

The Applicant has, effectively, claimed that Australia’s non-refoulement obligations are engaged in respect of Ethiopia. The Applicant claims to hold Ethiopian citizenship[166] and has raised fears on returning to Ethiopia due to civil unrest[167] and due to his criminal charges in Australia.[168]
[166] R2, G8, p 41 and G11, p 65.
[167] R2 G10, p 62
[168] R2, G 11, p 77.
The Applicant is not the subject of a protection finding. On 18 June 2021, the Applicant lodged an application for a protection visa.[169] On 27 April 2022, the application was refused.[170] The Applicant’s citizenship was considered by the Delegate in detail and concluded that the Applicant was a citizen of Sudan and not a citizen of South Sudan, Ethiopia or Australia.[171]
[169] R3, S46.
[170] R3, S46.
[171] R3, S45 at [1], read together with [16], [27] and [36].
It is not open to the Applicant to make another application for a protection visa. The Tribunal notes that the Applicant’s claims regarding Ethiopia and Sudan have already been assessed and it has essentially been found international non-refoulement obligations are not engaged in relation to the Applicant.[172] In any event, the Applicant has not provided any evidence to this Tribunal in support of his claims.
[172] R3, S46, p 205.
In these circumstances, the Tribunal considers this consideration should be given neutral weight.
Extent of impediments if removed (para 9.2 of Direction No. 99)
Paragraph 9.2 of Direction No. 99 states:
(1)Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)the non-citizen's age and health;
b)whether there are substantial language or cultural barriers; and
c)any social, medical and/or economic support available to them in that country.
(Emphasis added.)
The Applicant’s home country for consideration is his country of citizenship, being Sudan.
In relation to the extent of impediments if removed to Zimbabwe, the Applicant submitted that he has never been to Sudan and has no support network there.[173]
[173] R2, G12, p 79; R3, S46, p 204.
The Respondent’s position with respect to the impediments to the Applicant if he were removed is that this consideration is neutral, or at best, carries limited weight in favour of revocation and does not outweigh the heavy weight against revocation attributable to the primary considerations of the protection of the Australian community, family violence and the expectations of the Australian community.[174] In support of this position, the Respondent noted:[175]
(a)The Applicant will be able to establish himself and maintain basic living standards in Sudan.[176]
(b)The Applicant is 30 years old and has not declared any health issues. He is therefore relatively young and healthy.[177]
(c)The Applicant has never lived in Sudan and does not appear to have any family or other support there. It is unclear whether the Applicant will face language barriers, but it is likely he will face cultural barriers.[178]
(d)While it can be accepted that the security, political and economic situation in Sudan will present significant challenges for the Applicant, he will have access to the same level or social and economic support as what is generally available to other citizens of Sudan. The Applicant may have limited access to mental health facilities or treatment.[179]
[174] R1 [74].
[175] R1 [70]-[73].
[176] Para 9.2(1) of Direction No. 99.
[177] Para 9.2(1)(a) of Direction No. 99.
[178] Para 9.2(1)(b) of Direction No. 99.
[179] Para 9.2(1)(c) of Direction No. 99.
Having considered the available evidence and the parties’ submissions in the context of this other consideration, the Tribunal accepts the factors raised by the Respondent[180] and adds that it accepts the Applicant would likely face significant emotional hardship if removed. Overall, the Tribunal is satisfied that the extent of impediments if removed consideration weighs slightly in favour of revocation of the Cancellation Decision.
[180] See [145] above
Impact on victims (para 9.3 of Direction No. 99)
Paragraph 9.3 of Direction No. 99 states:
(1)Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
Neither party made any submission on this consideration. There is no victim impact statement in the present matter. The Tribunal is satisfied that it is not a relevant consideration in this matter and is therefore given neutral weight.
Impact on Australian business interests (para 9.4 of Direction No. 99)
Paragraph 9.4 of Direction No. 99 states:
(1)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Tribunal is satisfied that this factor is not relevant in the present case and should be given neutral weight.
CONCLUSION – THE WEIGHING EXERCISE
The Applicant does not pass the character test under s 501 of the Migration Act. Therefore, the Tribunal has considered whether there is another reason to revoke the Cancellation Decision, having regard to the primary considerations and relevant other considerations in Direction No. 99.
As to how to apply the primary and other considerations in Direction No. 99, the Tribunal is guided by Deputy President Boyle in Wightman at [107]-[109]:[181]
[181]Again, noting that the provisions of Direction No. 99 contain generally similar wording to the corresponding provisions in Direction No. 90. See also fn 234 above.
Direction 90 guides the decision maker on how to apply the primary and other considerations. Paragraph 7 of Direction 90 sets out the way in which the relevant considerations are to be taken into account (see [31] above). It provides:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While some of these cases were looking at that exercise under Direction 65 and Direction 79, the same considerations apply to the exercise required by Direction 90 which is materially in the same terms. The Tribunal is guided by Colvin J’s judgment in Suleiman v Minister for Immigration & Border Protection and the Full Court of the Federal Court decision in Minister for Home Affairs v HSKJ.
The Tribunal in CZCV at [164] summarised the legal position following the various cases referred to above as follows:
Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving an other consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so. …
(Emphasis added, footnotes omitted.)
The Tribunal follows the approach directed by the above cases. The Tribunal also takes guidance from the principles set out in paragraph 5 of Direction No. 99, in particular paragraph 5.2(6) of Direction No. 99,[182] which in turn refers to paragraph 8.5(2) of Direction No. 99.[183]
[182] See [38] above.
[183] See [128] above.
In regard to the first primary consideration, the protection of the Australian community (para 8.1 of Direction No. 99), the relevant consideration is whether the risk is an unacceptable one, taking into account the nature and seriousness of the harm that would be caused if there was a repeat of the offences or other serious conduct and the likelihood of that occurring. For the reasons set out in paras [49]-[89] above, the Tribunal has found that given:
(a)the nature and seriousness of the Applicant’s conduct to date is “very serious” (paras 8.1(2)(a) and 8.1.1 of Direction No. 99); and
(b)the serious nature of the harm and the moderate, unacceptable risk to the Australian community, should the Applicant commit further offences or engage in other serious conduct (paras 8.1(2)(b) and 8.1.2 of Direction No. 99),
the primary consideration of the protection of the Australian community weighs very heavily against revocation of the Cancellation Decision.
Looking at the second primary consideration (para 8.2 of Direction No. 99), family violence weighs very heavily against revocation of the Cancellation Decision.
With respect to the third primary consideration, the strength, nature and duration of ties to Australia (para 8.3 of Direction No. 99), the Tribunal has found that this primary consideration weighs slightly in favour of revocation of the Cancellation Decision (see para [104]-[114]).
With respect to the fourth primary consideration, the best interests of minor children in Australia (para 8.4 of Direction No. 99), the Tribunal has found that for the reasons set out in paras [115]-[123] above, the best interests of the Applicant’s minor children weigh slightly in favour of revocation of the Cancellation Decision.
The fifth primary consideration, the expectations of the Australian community (para 8.5 of Direction No. 99) weighs very heavily against revocation of the Cancellation Decision.
In relation to the “other considerations” identified in para 9 of Direction No. 99:
(c)The Tribunal is not satisfied that the Applicant’s current evidence enlivens Australia’s non-refoulement obligations, as part of the egal consequences of a decision under section 501CA, therefore considers this consideration carries neutral weight (para 9.1 of Direction No. 99).
(d)The extent of impediments if the Applicant were removed from Australia consideration weighs slightly in favour of revocation of the Cancellation Decision (see paras [142]–[146] above) (para 9.2 of Direction No. 99).
(e)The impact on victims consideration does not arise and is therefore neutral (para 9.3 of Direction No. 99).
(f)The impact on Australian business interests (para 9.4 of Direction No. 99) has no relevance to the present matter and hence is a neutral consideration.
Having weighed the considerations in favour of revocation of the Cancellation Decision and the considerations against revocation of the Cancellation Decision against each other, the Tribunal finds that:
(a)The first, second and fifth primary considerations weigh very heavily against revocation.
(b)The third and fourth primary considerations and the extent of impediments if removed consideration weigh slightly in favour of revocation.
(c)The remaining other considerations carry neutral weight.
The Tribunal emphasises that while “primary considerations should generally be given greater weight than the other considerations”[184] the considerations are not hierarchical – one or more primary considerations may outweigh other primary considerations.[185]
[184] Para 7(2) of Direction No. 99.
[185] Para 7(3) of Direction No. 99 and see [42] and [152] above.
After having weighed the primary and other considerations against each other, the Tribunal is satisfied that appropriate weight has been assigned to each of them. Particularly, the Tribunal is satisfied (for the reasons stated above) that the circumstances of the Applicant’s case warrants considerable weight to be placed on the first, second and fifth primary considerations.
Having weighed the considerations in favour of revocation of the Cancellation Decision and the considerations against revocation of the Cancellation Decision, the Tribunal finds that the number of considerations weighing in favour of revocation are, prima facie, equal those weighing against revocation and those carrying neutral weight.
Despite the considerations weighing in the Applicant’s favour (albeit slightly), the Tribunal is nonetheless of the exceptionally strong view that, due to:
(a)the unacceptable risk of harm to the Australian community; and
(b)the seriousness of the Tribunal’s concerns regarding there being any risk at all of the Applicant reoffending in a similar way,
the protection of the Australian community from future harm (from either the Applicant’s future offending, or any other serious conduct) is a primary consideration which, in addition to the family violence consideration and the expectations of the Australian community consideration, outweighs any and all considerations weighing in the Applicant’s favour.
In summary, having regard to all of the primary considerations, and the relevant other considerations in Direction No. 99, the Tribunal is not satisfied there is another reason why the Cancellation Decision should be revoked.
DECISION
The Reviewable Decision, being the decision of the Delegate dated 26 June 2023, not to revoke the mandatory cancellation of the Applicant’s Global Special Humanitarian visa (Class XB) (Subclass 202) pursuant to subsection 501CA(4) of the Migration Act 1958 (Cth) (the Act) is affirmed.

I certify that the preceding 166 paragraphs are a true copy of the reasons for the decision herein of L M Gallagher, Member

...................[Sgd].....................................................
Associate
Dated: 19 September 2023

Date of hearing: 30 August 2023

Applicant: Self-represented

Solicitors for the Respondent: Ms A O’Grady, Minter Ellison
ANNEXURE A – TABLE OF THE APPLICANT’S OFFENDING
Offending table details drawn from the Australian Criminal Intelligence Commission ‘Check Results Report,’ run on 1 May 2020[186] and the Western Australian Police Force ‘History For Court – Criminal and Traffic,’ compiled on 14 July 2023.[187]
[186] R2, G6.
[187] R3, S5.

Conviction Date Court Offence Offence Date(s) Court Result

1.    25 February 2020 Perth District Court Sexual Penetration without Consent 1 August 2016 4 years, 7 months imprisonment (concurrent); FVRO

2.    7 February 2020 Perth Magistrates Court Breach of Bail Undertaking 24 July 2018 $500 fine

3.    7 February 2020 Perth Magistrates Court Breach of Bail Undertaking 9 July 2018 $500 fine

4.    15 May 2018 Perth Magistrates Court Exceed 0.08g alcohol per 100ml of blood (driving); No Mdl 11 April 2018 $1600 fine; Mdl disqualified: 30 months concurrent

5.    15 May 2018 Perth Magistrates Court No Authority to Drive (never held and disqualified by disqualification notice) 11 April 2018 $1300 fine; Mdl disqualified: 9 months cumulative

6.    20 April 2018 Perth Magistrates Court No Authority to Drive (never held Australian licence, licence disqualified) 21 March 2018 $1500 fine; Mdl disqualified: 9 months cumulative

7.    20 April 2018 Perth Magistrates Court Exceed 0.08g alcohol per 100ml of blood: (driving); No Mdl 21 March 2018 $1600 fine; Mdl disqualified: 30 months concurrent

8.    16 February 2018 Perth Magistrates Court Disorderly behaviour in public 12 January 2018 $500 fine

9.    12 December 2016 Perth Magistrates Court No Authority to Drive (never held and disqualified by disqualification notice); No Mdl 12 November 2016 $1600 fine; Mdl disqualified: 9 months cumulative

10. 12 December 2016 Perth Magistrates Court Exceed 0.08g alcohol per 100ml of blood: (driving); No Mdl 12 November 2016 $1600 fine; Mdl disqualified 18 months concurrent

11. 8 September 2016 Perth Magistrates Court Disorderly behaviour in public 15 August 2016 $500 fine

12. 7 April 2016 Perth Magistrates Court No Authority to Drive (never held and disqualified by disqualification notice); No Mdl 1 March 2016 $1000 fine; Mdl disqualified: 9 months cumulative

13. 20 May 2015 Perth Magistrates Court
Give False Personal Details To

Police
22 March 2015 $300 fine

14. 28 April 2015 Perth Magistrates Court Breach of Police Order (restraining order) 27 April 2015 $750 fine

15. 30 March 2015 Perth Magistrates Court Breach of Bail Undertaking unknown $500 fine

16. 30 March 2015 Perth Magistrates Court Breach of Bail Undertaking 26 February 2015 $500 fine, $150 fine

17. 30 March 2015 Perth Magistrates Court Exceed 0.08g alcohol per 100ml of blood: (driving); No Mdl 7 February 2015 $750 fine; Mdl disqualified 9 months concurrent

18. 30 March 2015 Perth Magistrates Court No Authority to Drive (never held and disqualified); No Mdl. 7 February 2015 $500 fine; Mdl disqualified: 9 months cumulative

19. 19 February 2015 Perth Magistrates Court No Authority to Drive (never held); No Mdl 31 January 2015 $300 fine: Mdl disqualified: 3 months concurrent

20. 23 December 2014 Perth Magistrates Court No Authority to Drive (never held); No Mdl 1 November 2014 $150 fine; Mdl disqualified: 3 months concurrent

21. 7 June 2013 Perth Magistrates Court No Authority to Drive (Fines Suspended); No Mdl 20 April 2013 $200 fine

Conviction Date	Court	Offence	Offence Date(s)	Court Result
1.	25 February 2020	Perth District Court	Sexual Penetration without Consent	1 August 2016	4 years, 7 months imprisonment (concurrent); FVRO
2.	7 February 2020	Perth Magistrates Court	Breach of Bail Undertaking	24 July 2018	$500 fine
3.	7 February 2020	Perth Magistrates Court	Breach of Bail Undertaking	9 July 2018	$500 fine
4.	15 May 2018	Perth Magistrates Court	Exceed 0.08g alcohol per 100ml of blood (driving); No Mdl	11 April 2018	$1600 fine; Mdl disqualified: 30 months concurrent
5.	15 May 2018	Perth Magistrates Court	No Authority to Drive (never held and disqualified by disqualification notice)	11 April 2018	$1300 fine; Mdl disqualified: 9 months cumulative
6.	20 April 2018	Perth Magistrates Court	No Authority to Drive (never held Australian licence, licence disqualified)	21 March 2018	$1500 fine; Mdl disqualified: 9 months cumulative
7.	20 April 2018	Perth Magistrates Court	Exceed 0.08g alcohol per 100ml of blood: (driving); No Mdl	21 March 2018	$1600 fine; Mdl disqualified: 30 months concurrent
8.	16 February 2018	Perth Magistrates Court	Disorderly behaviour in public	12 January 2018	$500 fine
9.	12 December 2016	Perth Magistrates Court	No Authority to Drive (never held and disqualified by disqualification notice); No Mdl	12 November 2016	$1600 fine; Mdl disqualified: 9 months cumulative
10.	12 December 2016	Perth Magistrates Court	Exceed 0.08g alcohol per 100ml of blood: (driving); No Mdl	12 November 2016	$1600 fine; Mdl disqualified 18 months concurrent
11.	8 September 2016	Perth Magistrates Court	Disorderly behaviour in public	15 August 2016	$500 fine
12.	7 April 2016	Perth Magistrates Court	No Authority to Drive (never held and disqualified by disqualification notice); No Mdl	1 March 2016	$1000 fine; Mdl disqualified: 9 months cumulative
13.	20 May 2015	Perth Magistrates Court	Give False Personal Details To Police	22 March 2015	$300 fine
14.	28 April 2015	Perth Magistrates Court	Breach of Police Order (restraining order)	27 April 2015	$750 fine
15.	30 March 2015	Perth Magistrates Court	Breach of Bail Undertaking	unknown	$500 fine
16.	30 March 2015	Perth Magistrates Court	Breach of Bail Undertaking	26 February 2015	$500 fine, $150 fine
17.	30 March 2015	Perth Magistrates Court	Exceed 0.08g alcohol per 100ml of blood: (driving); No Mdl	7 February 2015	$750 fine; Mdl disqualified 9 months concurrent
18.	30 March 2015	Perth Magistrates Court	No Authority to Drive (never held and disqualified); No Mdl.	7 February 2015	$500 fine; Mdl disqualified: 9 months cumulative
19.	19 February 2015	Perth Magistrates Court	No Authority to Drive (never held); No Mdl	31 January 2015	$300 fine: Mdl disqualified: 3 months concurrent
20.	23 December 2014	Perth Magistrates Court	No Authority to Drive (never held); No Mdl	1 November 2014	$150 fine; Mdl disqualified: 3 months concurrent
21.	7 June 2013	Perth Magistrates Court	No Authority to Drive (Fines Suspended); No Mdl	20 April 2013	$200 fine

See s 501CA(4)(a) of the Migration Act and [15]-[16] above.

and Border Protection [2015] AATA 751 upheld on appeal in Jagroop v Minister for Immigration and Border
Protection(2016) 241 FCR 461.

Date of hearing:	30 August 2023
Applicant:	Self-represented
Solicitors for the Respondent:	Ms A O’Grady, Minter Ellison