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

[2021] AATA 589

MCVN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 589 (16 February 2021)

Division:GENERAL DIVISION

File Number:2020/7893  

Re:MCVN  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Member Andrew McLean Williams

Date of Decision:               16 February 2021

Date of Written Reasons:      19 March 2021

Place:Brisbane

The decision under review is affirmed.

........................[SGD]...................................

Member Andrew McLean Williams 

Catchwords

MIGRATION – Non-revocation of mandatory cancellation of a Refugee (subclass 200) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review affirmed

Legislation

Migration Act 1958 (Cth)

Cases

Bartlett v Minister for Immigration and Border Protection (Migration) [2017] AATA 1561

FYBR v Minister for Home Affairs [2019] FCAFC 185
Khalil v Minister for Home Affairs [2019] FCAFC 151
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Home Affairs v Stowers [2020] FCA 407
Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666; [2009] AATA 47
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

SECONDARY MATERIAL

Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

REASONS FOR DECISION

Member Andrew McLean Williams

19 March 2021

INTRODUCTION

1. On 16 February 2021, the Tribunal gave its decision in this matter affirming the decision under review. Now annexed hereto and marked as “Annexure A” is a copy of that decision.

2. In accordance with the principles outlined by the Full Federal Court in Khalil v Minister for Home Affairs [2019] FCAFC 151 (“Khalil”), the Tribunal now publishes the written reasons for that decision. In Khalil, the Full Federal Court said:

   “41. The AAT Act thus draws a clear distinction between the decision of the Tribunal under s 43 which is, relevantly, what causes the 84 day period to stop running, and the reasons for decision. In BTR plc v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246 the Tribunal had handed down a decision on a review of a decision of the Australian Securities Commission that was before it, confirming an exemption that the Commission had granted on certain conditions, but substituting different conditions. At the time of announcing the decision the Tribunal did not give any reasons. It delivered written reasons some 14 days later. Beaumont J held (at 271 273, Lockhart and Hill JJ agreeing at 253) that the Tribunal's omission to provide reasons at the time of announcing its decision was not an error, as on the proper construction of s 43(2) of the AAT Act, the Tribunal was only required it to give its reasons, oral or in writing, within a reasonable time of the decision.

   …

   48. What the Tribunal had to do here within the 84 days was to deliver a decision, not necessarily express reasons…”

   [My underlining]

3. MCVN (‘the Applicant’), a 23 year old citizen of Eritrea, seeks - pursuant to s.500(1)(ba) of the Migration Act 1958 (Cth) (‘the Act’) - to review a decision of a delegate of the Respondent Minister made on 23 November 2020 not to revoke, pursuant to s.501CA(4), the mandatory cancellation of the Applicant’s Refugee (subclass 200) visa, under s.501(3A) of the Act.

4. The Applicant arrived in Australia in April 2010, when aged 12, as the holder of a Refugee (subclass 200) visa. 

5. On 16 December 2019, the Applicant was given notice[1] that his visa was cancelled pursuant to s.501(3A) of the Act, on the basis of his having a ‘substantial criminal record’,[2] by reason of having been sentenced to a term of imprisonment of more than 12 months.

   [1] Exhibit G1, s501 G Documents, G21, page 83.

   [2] See: Migration Act 1958, s.501(6)(a) & s.501(7)(c).

6. The Applicant requested revocation of the cancellation decision, providing both evidence and submissions in support of that request. On 23 November 2020, a delegate of the Minister decided pursuant to s.501CA(4) of the Act not to revoke the cancellation decision.[3]

   [3] Exhibit G1, s501 G Documents, G5, page 16.

7. The Applicant then lodged an application before this Tribunal for review of the refusal, on 30 November 2020.[4] The Tribunal has jurisdiction to review such a refusal pursuant to s.500(1)(b) of the Act.

   [4] Exhibit G1, s501 G Documents, G2.

8. The hearing of this application for review took place on 9 February 2021.

9. At the hearing, the Tribunal received oral evidence via video from the Applicant and his older brother.

10. The Tribunal also received the written evidence that is now listed in the attached exhibit list, marked as “Annexure B” to these reasons.

    FACTUAL BACKGROUND, and offending History

11. The Applicant was born in Eritrea in January 1998, and is a member of the Kunama ethnic sub-group.[5] When the Applicant was aged approximately 12 months, his family fled from Eritrea into Ethiopia so as “to escape the torturous Eritrean regime”,[6] and then lived in a refugee camp in Ethiopia for the next 10 years. In a letter of support for the Applicant, his older brother described life in the refugee camp as “depressing, painful, heartbreaking, discouraging and stressful.”[7]

    [5] Exhibit G1, s501 G Documents, G15, page 69; and G16, page 71.

    [6] Exhibit G1, s501 G Documents, G16, page 71.

    [7] Exhibit G1, s501 G Documents, G14, page 68.

12. In April 2010, and by now aged about 12, the Applicant - together with his parents, three brothers and sister - were accepted by Australia, as refugees.  The Applicant and his family arrived in Australia shortly afterwards, as the holders of Refugee (subclass 200) visas.[8]

    [8] Exhibit G1, s501 G Documents, G11, page 53.

13. In his submissions to the Minister, the Applicant referred to his childhood growing up in a refugee camp and his family’s feelings of delight when they were granted their visa to reside in Australia:[9]

    “Growing up in a refugee camp was one tough experiance (sic) for me and my family. My childhood life was really hard, i have seen some bad things as a baby that no kid should be able to experience (sic). In 2010 we got granted a refugee visa to come to Australia, my family was so happy to get a opportunity to come to such a peaceful country and begin a knew (sic) chapter in life.”

    [9] Exhibit G1, s501 G Documents, G12, page 66.

14. After his arrival and resettlement in Brisbane, the Applicant commenced at an intensive English language school for newly arrived young people of refugee and migrant backgrounds.[10] After completing an intensive English language program, the Applicant transferred to a State High School.[11]

    [10] Exhibit G1, s501 G Documents, G14, page 68; G17, page 75.

    [11] Exhibit G1, s501 G Documents, G14, page 68; and G17, page 75.

15. Despite the hardships faced in his early childhood, and the undoubted disruptions of displacement and resettlement, the Applicant initially settled in well to his life in Australia. Evidence before the Tribunal also suggests that the Applicant was a good student, with a Community Liaison Officer from the State High School even going so far as to state in a letter of support that the Applicant was “a wonderful and polite child, who got along with everyone.”[12]

    [12] Exhibit G1, s501 G Documents, G14, page 68; and G17, page 75.

16. The Applicant gave evidence that his parents were experiencing marital conflict in 2016.   Ultimately, this led to the Applicant’s father leaving the family home. The Applicant described this period as follows:[13]

    “…my Mum and my Dad were, like, arguing and stuff, then my Dad have to leave the house and he is staying in a different house by himself because the police, like, ordered him to stay in a different house.  And that was, like (indistinct) that was happening the whole - through my grade 12.  And then, it was really hard because I couldn’t, like, see my Mum and my Dad together because all my life I’ve been seeing them together and when they got separated, it was really hard.”

    [13] Transcript, page 14.

17. Of note in this context is that the Applicant’s criminal history does not commence until 2016. Therefore, it appears that the Applicant’s criminal offending does coincide - at least in a temporal sense - with the difficulties the Applicant was experiencing at home during that year in consequence of his parents’ marital conflict.

18. The Applicant explained that he started drinking in response to his parent’s separation and now appears to attribute his poor decision-making and related criminal offending to alcohol.[14] In relation to the claimed connection between his parent’s separation and his drinking, the Applicant recounted as follows:[15]

    “And I - whenever I drive, like, when I catch the bus to school I always see my Dad at the bus stop going to work and, like, I try to get off and say hi, like, to talk to him and stuff but I never had the chance and that was really - always troubled me.  And when I go out, I always used to drink and then, like, I used to call my Dad and I used to talk to him and stuff, make things better with my Mum, but things weren’t well at all.  It didn’t work out at all and during that year, at the end, he committed suicide.”

    [14] Transcript, page 14.

    [15] Transcript, page 14.

19. In March 2016, the Applicant committed his first offences, being two counts of ‘common assault’. These offences involved the Applicant “hassling and hitting some young men who had exited from an apartment complex near Musgrave Park, where [the Applicant] was drinking.” [Tribunal insertions for clarity][16]

    [16] Exhibit G1, s501 G Documents, G8, page 39.

20. A Police Court Brief also sets out the circumstances of this offending, stating that on the night of these offences the Applicant had been drinking with a group of other African males in Musgrave Park, at South Brisbane. The group had been encouraging each other to get into fights with members of the public, and were speaking of “wanting to beat someone up”.[17] A group of three people aged in their early twenties, happened to be walking past the Applicant and his associates, towards a nearby unit complex. The Applicant and his eight associates then surrounded the victims and attempting to incite them into a fight. The victims continued walking, and tried to avoid either conversation or confrontation. CCTV footage then shows the Applicant running further ahead of the victims, before turning and confronting them.  In the words used in the Queensland Police Service Court Brief, the Applicant “adopt[ed] a wide foot boxing type stance and raise his fists, in front of his face.”[18] The victims continued to attempt to avoid confrontation and entered the automatic glass sliding doors of the foyer of the unit complex, only to be chased through these doors by the Applicant, and five others. The Police Court Brief then states that a flurry of punches and kicks were delivered to the victims inside the doorway. The Applicant and the other assailants then ran back towards Musgrave Park.

    [17] Exhibit R2, Tender Bundle, page 3.

    [18] Exhibit R2, Tender Bundle, page 2.

21. One of the victims later also reported being struck on the back of the head by an unknown male on the footpath, prior to his reaching the unit complex, a matter therefore not captured on the CCTV footage. Later that night, when the police came across the group of African males, the Applicant and three others fled. After further police investigation, the Applicant was eventually arrested. In an electronic record of interview conducted in April 2016, the Applicant admitted to punching one of the victims, but could not now remember which one. The Applicant was then charged and released on bail. This offence was not ultimately dealt with by the courts until 2018.

22. Later in the month of March 2016, the Applicant committed his next offence, ‘robbery with actual violence armed/in company/wounded/used personal violence’. This offence involved the Applicant assaulting people in public places, whilst in company with other assailants.[19] According to the Queensland Police Service Court Brief, the Applicant and one of his brothers forcibly seized the backpack then being carried by an international student from Korea, whom at that time had been living in Brisbane in order to complete an English language course. The victim was also knocked unconscious and suffered a right-eye haematoma, bruising and skin abrasions along his mid-face, and further abrasions to the left elbow, and right knee.

    [19] Exhibit G1, s501 G Documents, G8, page 39.

23. On 9 May 2016, the Applicant failed to appear before the Court in accordance with an undertaking. By way of explanation, the Applicant informed the Tribunal that he “got lost on the way to the court” and, by the time he found the court, staff at the court told him he was an hour late and “the court has been cancelled” with a warrant issued for his arrest.[20] On 19 July 2016, the Applicant appeared at the Brisbane Magistrates Court in relation to this matter and was fined $100, with no conviction being recorded.

    [20] Transcript, page 9.

24. In August 2016, the Applicant’s father committed suicide. The Applicant informed the Tribunal that he had shared a very close relationship with his father and, understandably, he was left feeling devastated.  Following the death of his father, the Applicant says that his mental and emotional health deteriorated.[21] The Community Liaison Officer from his State High School also stated that the Applicant’s academic achievements and behaviour at school deteriorated noticeably, after this event.[22]

    [21] Exhibit G1, s501 G Documents, G12, page 66.

    [22] Exhibit G1, s501 G Documents, G17, page 75.

25. The Applicant’s evidence was that, although he had already started drinking alcohol and smoking marijuana prior to his father’s death, it was only “like a box of beers”, and smoking “every now and then”[23] before his father’s passing, however this increased significantly after his father’s death as he did not know how to otherwise handle the sense of grief he was experiencing.[24] The Applicant explained in his revocation request form that “when I think about what I could of done to help him change things it drives me crazy so I start taking drugs or drink liquor and that leads me to make poor decsios (sic).”

    [23] Transcript, pages 13 and 14.

    [24] Exhibit G1, s501 G Documents, G12, page 66.

26. In December 2016, the Applicant committed a further ‘aggravated robbery whilst in company’ and an offence of ‘assault’, while already on bail for the robbery that had occurred previously, in March 2016. The Queensland Police Service Court Brief referable to this offence reveals that the Applicant assaulted the victim, punching him multiples times, before taking his bag and stealing money. The victim was left with abrasions on his right elbow but was otherwise not seriously injured. The Applicant did not appear before a court for sentencing in relation to these two offences until 2017.

27. After graduating from school in December 2016, the Applicant undertook a certificate in landscaping and commenced working as a landscape labourer in January 2017, until December 2017. The evidence before the Tribunal indicates that the Applicant lost his employment as a landscape labourer in consequence of the closure of the landscaping company, whereupon the Applicant experienced difficulty in finding other work.[25]

    [25] Transcript, page 19.

28. On 21 November 2017, the Applicant appeared in the Brisbane District Court for sentencing in relation to the two aggravated robberies committed in March and December 2016. A conviction was recorded for two counts of ‘robbery with actual violence armed/in company/wounded/used personal violence’ and the Applicant was sentenced to three years imprisonment, to be served concurrently. The Tribunal notes the Applicant was given an immediate parole release date at that court appearance.[26]

    [26] Exhibit G1, s501 G Documents, G6, page 35; and G8, pages 38 to 41.

29. In light of the aforementioned difficulties in gaining alternate employment in the landscaping industry, the Applicant undertook a Certificate II in warehousing,[27] and then worked in a warehouse for a labour hire company between February 2018, and June 2019.[28]

    [27] Exhibit G1, s501 G Documents, G14, page 68; G15, page 69.

    [28] Exhibit G1, s501 G Documents, G11, page 62.

30. After ceasing work at this company, for reasons that were not explained before the Tribunal, the Applicant experienced further problems in terms of finding further warehousing employment. In a letter submitted in support of the Applicant, his brother explained that “due to the closure of the [landscaping] company [the Applicant] couldn’t find a job in a similar field he was hoping for. Therefore, he did a certificate in warehousing but again he couldn’t get a job. He always wanted to study and improve, so I took him to TAFE Queensland to enroll (sic) in Certificate III in construction, but because he was not an Australian Citizen, we were told to pay all the fees upfront or wait until he is a citizen.”[29]

    [29] Exhibit G1, s501 G Documents, G15, page 69.

31. Various letters of support submitted before the Tribunal indicate that the combination of his father’s death, which left an “enormous responsibility” to find work to support his family, and the Applicant’s unemployment were key factors in his offending.[30] For example, family friends stated that[31]: “I believe that [the Applicant’s] offences were caused by the fact that he was unemployed. His mother is disabled and doesn’t have any job. [The Applicant] was always trying to find a job and support his mother. In 2017/2018, he was doing a land scaping course, hopping to be hired in the same industry. Unfortunately, the program was discontinued for unknow reason. His father’s death of suicide when he was very young has its role in taking wrong decisions” [errors in the original, Tribunal inserts for clarity].

    [30] Exhibit G1, s501 G Documents, G17, page 75; and G18, page 77.

    [31] Exhibit G1, s501 G Documents, G18 to G20.

32. On 25 January 2018, the Applicant was convicted of two counts of ‘common assault’ in relation to the offences he had committed in March 2016, as have already been described, above. The Applicant was sentenced to four months imprisonment, to be served concurrently yet was again immediately released, on parole.[32]

    [32] Exhibit G1, s501 G Documents, G6, page 33.

33. On 23 March 2018, the Applicant committed drug-related offences. A Queensland Police Service Court Brief setting out the facts of the offending reveals that the Applicant was charged by detectives conducting ‘Operation Lure’, set up in response to a spate of robbery offences being committed by a group of African males using social media to advertise the sale of illegal drugs in order to lure victims to public parks in order to rob them, secure in the knowledge the victims would arrive carrying quantities of cash.[33] Detectives had communicated by means of Facebook Messenger with an unknown person, and had arranged an undercover drug purchase.  Later that same evening, detectives attended at the agreed location and detained two African males waiting at that location.  One of these persons was the Applicant. After searching the Applicant, detectives found a clip-seal bag containing 9.6 grams of cannabis. The Applicant declined to participate in a record of interview and refused to provide the detectives with the password to unlock his phone.[34] 

    [33] Exhibit R2, Tender Bundle, page 9.

    [34] Exhibit R2, Tender Bundle, pages 9 to 10.

34. On 26 March 2018, the Applicant appeared in the Richlands Magistrates Court for the offences of ‘possessing dangerous drugs’, ‘supplying dangerous drugs’, and ‘possessing anything used in the commission of crime defined in Part 2’. A conviction was recorded, and the Applicant was ordered to completed 100 hours of community service.[35]

    [35] Exhibit G1, s501 G Documents, G6, page 33.

1. In September 2018, the Applicant committed a drink driving offence. During cross‑examination before the Tribunal the Applicant agreed that at the time of this offence he was only the holder of a learner’s driver licence, and that he had been driving without supervision, and whilst not displaying ‘L plates’.[36]

   [36] Transcript, page 11.

2. On 4 July 2019 the Applicant committed further drug offences. The circumstances of this offending involved police intercepting a car being driven by the Applicant. Police detected cannabis on the Applicant’s breath whilst conducting a driver licence check, and proceeded to detain and search all of the occupants of the car. During the search, the police located a shopping bag that smelt strongly of cannabis. The police observed cannabis residue in the bag, however, no other items were found. While the Applicant was detained, police also received further information, which then led to a search of a premises connected with the car. Upon searching the premises, the police found more cannabis in a medium‑sized clip-seal bag, which also contained a clear crystal substance, believed by police to be methylamphetamine.  Police also located a wallet containing bank cards, Centrelink cards, and various membership cards, each bearing the Applicant’s name, as well as $2,650 in cash.[37] The Applicant was subsequently arrested, charged, and taken into custody on 6 July 2019.[38] The Applicant’s criminal offending history ceases at this juncture.

   [37] Exhibit R2, Tender Bundle, page 60.

   [38] Transcript, page 12.

3. On 16 December 2019, a delegate of the Respondent Minister notified the Applicant that his visa was mandatorily cancelled pursuant to subsection 501(3A) of the Act, on the basis that the Applicant had a ‘substantial criminal record’ as he had been sentenced to a term of imprisonment of more than 12 months, and was then serving a sentence of imprisonment on a full-time basis in a custodial institution (‘the cancellation decision’).[39] The Applicant made representations seeking revocation of the cancellation decision in December 2019.[40]

   [39] Exhibit G1, s501 G Documents, G21, page 83.

   [40] Exhibit G1, s501 G Documents, G10, page 48.

4. The Applicant was transferred from prison to immigration detention.  While the Applicant was in immigration detention two incidents were recorded as having occurred involving the Applicant. The first of these transpired on 14 July 2020.  It involved contraband being found as part of an Emergency Response Team targeted room search.[41] When conducting the search, in a room shared by the Applicant and one other immigration detainee, officers found a found a small strip of Suboxone wrapped in cigarette paper; an improvised metal shiv; a small screwdriver; five USB sticks; a small pink cigarette lighter; a thin metal rod; and numerous smoking implements.[42] It was the Applicant’s evidence that none of these items belonged to him.[43]

   [41] Exhibit G1, s501 G Documents, G9, page 46.

   [42] Exhibit G1, s501 G Documents, G9, page 46.

   [43] Transcript, page 12.

5. The second incident took place on 7 August 2020 and involved the Applicant making threats towards a Detainee Services Officer. The incident report indicates the Applicant had attempted to enter an exercise yard within the detention centre at a time when he was not permitted access to that yard. When he was so informed by the Detainee Services Officer, the Applicant is claimed to have responded by stating “I’ll go out by force, you can’t stop me”. Then, the Applicant initially refused to exit the yard, before eventually walking out of the yard and stating: “if I don’t get out at 3 I’m going out by force.” In cross-examination, before the Tribunal, when asked whether the alleged facts of this incident were correct, the Applicant confirmed these to be correct, yet then sought to justify his conduct by stating that he ‘was having a bad day’.[44]

   [44] Transcript, page 13.

6. On 3 April 2020, the Applicant was sentenced for the drug offending that had occurred in July 2019. A conviction was recorded, however the Applicant was not otherwise punished.[45]

   [45] Exhibit G1, s501 G Documents, G6, pages 32 to 33.

7. On 23 November 2020, a decision was made to not revoke the visa cancellation,[46] whereupon the Applicant commenced this application for review before the Tribunal.

   [46] Exhibit G1, s501 G Documents, G5, page 16.

   Issues

8. The issue for the Tribunal to consider is whether it should exercise the power in s.501CA(4) in favour of revoking the mandatory cancellation of the Applicant’s visa. In determining that issue, the Tribunal must determine:

   ·whether the Applicant passes the character test; and

   ·if the Applicant does not pass the character test, whether there is ‘another reason’ why the cancellation decision should now be revoked.

   The Character Test:

9. The character test is specified in s.501(6) of the Act. Relevantly, it provides that a person will not pass the character test if they have a ‘substantial criminal record’: s.501(6)(a). A substantial criminal record is then defined, in s.501(7) of the Act, and includes (d), circumstances where a person has been sentenced to two or more terms of imprisonment comprising a total of 12 months or more: s.501(7)(d). What is relevant is the fact of sentencing to imprisonment for a period of 12 months or more, and not the time actually served.

10. In this instance, the Applicant has been sentenced to terms of imprisonment of three years. By operation of law,[47] and even notwithstanding the grant of a parole release date on the same day as he was sentenced, the Applicant cannot pass the character test, and the Tribunal so finds, accordingly.[48] 

    [47] Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666; [2009] AATA 47 at [63].

    [48] The Applicant concedes that he does not pass the character test.  See Exhibit A1, Applicant’s Statement of Facts Issues & Contentions at [5].

11. The issue before the Tribunal thus reduces to the question whether there is now ‘another reason’ for the Tribunal to exercise the discretion to revoke the cancellation decision.

    The Ministerial Direction

12. In considering whether to exercise the revocation discretion, the Tribunal is bound by s.499(2A) to comply with any directions made under the Act. In this case, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s.501CA (“the Ministerial Direction”) has application. 

13. Part C of the Ministerial Direction identifies the considerations that are relevant to former visa holders when determining whether to exercise the discretion to revoke the mandatory cancellation of the non-citizen’s visa.  General guidance is provided for decision-makers in paragraph 6.2(1) – (3).  Principles that ‘provide a framework within which decision-makers should approach their task of deciding whether to… revoke a mandatory cancellation under section 591CA’ are then set out, in paragraph 6.3.[49]  

    [49] Ministerial Direction, paragraph 6.2(3).

14. The paragraph 6.3 principles are as follows:

    (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;

    (2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;

    (3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;

    (4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;

    (5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;

    (6)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and

    (7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.

15. Suitably informed by the Principles set out in paragraph 6.3, paragraph 13(2) in Part C of the Ministerial Direction then prescribes that the Tribunal ‘must’, when deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, bring to account the following primary considerations:

    a)Protection of the Australian community from criminal or other serious conduct;

    b)The best interests of minor children in Australia;

    c)The expectations of the Australian community.

16. In addition, paragraph 14 in the Ministerial Direction requires that, when determining whether to revoke the mandatory cancellation of a visa, the Tribunal must also take into account certain ‘other considerations’, wherever these may be relevant.  These include (but are not limited to):

    a)        International non-refoulment obligations;

    b)        Strength, nature and duration of ties;

    c)        Impact on Australian business interests;

    d)        Impact on victims; and

    e)        Extent of impediments, if removed.

17. Here, it is to be emphasised the importance of these being regarded as “other”, as opposed to “secondary” considerations.  As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:

    “…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non-refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”

    The Primary Considerations

    Protection of the Australian community from criminal or other serious conduct

18. Paragraph 13.1(1) of the Ministerial Direction specifies that when considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as the result of criminal activity or other serious conduct by non-citizens.  The Ministerial Direction specifies that 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.  Mandatory cancellation without notice of certain non-citizen prisoners is expressed to be a step that is consistent with this principle, by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.  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.

    The nature and seriousness of the Applicant’s conduct:

19. Paragraph 13.1.1(1) of the Ministerial Direction specifies that when considering the nature and seriousness of the non-citizen’s criminal offending or other serious conduct to date, the Tribunal must have regard to:

    a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

    b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

    c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or Government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

    d)Subject to paragraph (b) above, the sentence imposed by the courts for a crime or crimes;

    e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

    f)The cumulative effect of repeated offending;

    g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

    h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);

    i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.

20. The Respondent submits[50] that the Applicant’s offending should now be categorised by the Tribunal as ‘very serious’, for the following reasons:

    ·The Applicant has been convicted of offences of a violent character. In these circumstances paragraph 13.1.1(1)(a) in the Ministerial Direction mandates that the conduct cannot be viewed in any more favourable light.[51]   

    ·The factual particulars of the offences dealt with by the District Court of Queensland on 21 November 2017 note two offences of robbery whilst in company, committed by means of the actual use of violence.  In both instances, the victim was a person targeted by the Applicant, seemingly at random.  On the occasion of the second offence (December 2016), the Applicant was already on bail, awaiting to be dealt with by the courts in relation to the first robbery offence, as had been committed by the Applicant in March 2016.

    ·The Applicant was subsequently convicted on 25 January 2018 in relation to common assaults committed on 18 March 2016.  This was another unprovoked random violent attack on a member of the public, who had the misfortune to do no more than walk past the Applicant and his associates, whilst they were drinking in a public park.

    ·Even after being dealt with by the Courts on 21 November 2017 and 25 January 2018 for offences of violence, the Applicant was further dealt with by the courts, this time for drug offences, on 26 March 2018, and then again on 3 April 2020.

    ·In addition to the afore-mentioned violence offences, and drug offences, the Applicant has a traffic history that includes five speeding offences, and an offence of drink-driving whilst an unsupervised learner driver.  The Respondent submits[52] that these offences point to a recklessness and indifference by the Applicant towards the laws and rules governing the operation of a motor vehicle, in a manner that only increases risks to the community.[53]

    ·Pursuant to paragraph 13.1.1(1)(d) of the Ministerial Direction, the Applicant has been sentenced to terms of imprisonment, which can only be taken as a reflection of the court’s assessment of the overall seriousness of the Applicant’s conduct.

    ·Pursuant to paragraphs 13.1.1(1)(f) and 13.1.1(1)(e) of the Ministerial Direction, the cumulative effect of the Applicant’s offending, and its frequency, given there have been 12 offences in the space of three years.

    [50] Exhibit R1, Respondent’s Statement of Facts Issues and Contentions, paragraph 15.

    [51] Minister for Home Affairs v Stowers [2020] FCA 407 at [45].

    [52] Exhibit R1, Respondent’s Statement of Facts Issues and Contentions, paragraphs 21 – 22.

    [53] Bartlett v Minister for Immigration and Border Protection (Migration) [2017] AATA 1561 at [43].

21. The Applicant submits that, with the exception of the offences of robbery with actual violence whilst armed and in company, and common assault, which are conceded by the Applicant to be intrinsically serious offences, the balance of the offences for which he has been convicted are not so treated, under the Ministerial Direction[54]. Further, the Applicant submits that all of his most serious offences transpired within a short space of approximately one year, when aged 18, and that regard should be had to the background circumstances of his being addicted to illicit drugs, and struggling to cope with the death of his father at that stage.  The Applicant also submits that regard should be had to the fact of his early pleas of guilty, and to the fact that the drug offences for which he was dealt with by the courts on 26 March 2018 and 3 April 2020 were at the ‘lower end’ of drug matters that are routinely dealt with by the courts[55].   

    [54] Exhibit A1, Applicant’s Statement of Facts, Issues & Contentions, paragraph 25.

    [55] Exhibit A1, Applicant’s Statement of Facts, Issues & Contentions, paragraphs 27 – 30.

22. Ultimately, the Tribunal remains unpersuaded by the Applicant’s submissions as to why his offending conduct could now be assessed as anything other than ‘very serious’.  The Applicant has engaged in random acts of violence and robbery whilst in company against unsuspecting members of the public, none of whom did anything to provoke the Applicant.  The Applicant’s drug offences entail dimensions of commercial supply, thus placing these in a more serious category than would be the case for offences of drug possession solely for his own use.  The Applicant has also engaged in further offending whilst already on bail awaiting to be dealt with by the courts for prior offences, or when on parole.  This points towards an element of either contempt for, or indifference towards the laws governing civil society in this country by the Applicant.  Furthermore, the Applicant’s traffic offences reveal an indifference to the rules applicable to the safe and lawful operation of motor vehicles, and thus an indifference by the Applicant to the safety of the community when using the roads. 

23. In light of the Ministerial Direction, the Tribunal concludes that the nature and seriousness of the Applicant’s conduct to date is appropriately assessed as “very serious”.

    The risk to the Australian Community should the non-citizen commit further offences or engage in other serious conduct.

24. In considering the question of future risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct in the future, the Tribunal is required to take guidance from paragraph 13.1.2 in the Ministerial Direction, which provides:

    (1)In considering the risk 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 available information and evidence of the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

1. The Respondent submits[56] that the Applicant presents as an unacceptable risk of further offending because:

   ·The nature of the harm that would be caused if the Applicant were to re-offend is very serious and is likely to involve significant physical, psychological and emotional harm to members of the Australian community with adverse consequences for public health, the justice system, and general incidences of crime;

   ·The Applicant has himself identified that drugs and alcohol are at the root of his offending.  The Applicant’s ability to refrain in the future from drugs and alcohol if allowed to be at large in the community is a matter that is entirely untested, and there is no evidence of the Applicant having completed any form of treatment or rehabilitation so as to deal with his now admitted issues relating to the abuse of drugs and alcohol.

   ·The Applicant has continued to commit offences even when on either bail or parole in relation to prior offending.

   ·The Applicant’s lengthy history of committing offences in Australia over a relatively short period and being sentenced to a term of imprisonment in the past has not deterred him from re-offending.

   ·The Applicant has not undertaken any grief counselling or other rehabilitation in order to deal with the death of his father which has been ascribed by the Applicant as a key factor leading to his substance abuse issues.

   ·The Applicant’s conduct whilst in immigration detention lends little support to claims that he will not re-offend.

   ·In light of Principles 6.3(3) and 6.3(4), the seriousness of the potential harm that would be caused should the Applicant’s past offending be repeated is so serious that any risk of re-occurrence is unacceptable.

   [56] Exhibit R1, Respondent’s Statement of Facts, Issues & Contentions, paragraph 26 – 29, and oral submissions.

2. The Applicant concedes[57] that further harm to the Australian community would arise in the event of his re-offending if released back into the community, yet submits that the risk of his re-offending does not amount to an unacceptable risk, and should be regarded as a low risk, because[58]:

   ·     The Applicant was law-abiding for a period of 18 years before committing a series of violent offences for a period of one year during the aftermath of the death of his father.  No offences were committed from 16 December 2016 until 23 March 2018 whilst the Applicant was on bail, and no offences have been committed by the Applicant from 4 July 2019 onwards.

   ·     The Applicant accepts that substance abuse has in the past lead him to poor decision-making, yet he is now abstaining from all drug use.  The incident in immigration detention in July 2020 involving the detection of drug paraphernalia should not be attributed to the Applicant in circumstances wherein the accommodation room was a shared space, and he himself denies any involvement.

   ·     The minor further disciplinary incident whilst in immigration detention in August 2020 is explicable, due to various stresses that the Applicant was under at the time.  Whilst verbally aggressive with staff, the Applicant did not resort to physical violence.

   ·     Time on remand in prison, and subsequently time in immigration detention, has afforded the Applicant the necessary time to reflect upon, and recover from, the grief related to the death of his father, such that the Applicant no longer feels the need to use drugs and alcohol to cope with everyday life.

   ·     The Applicant is close to his disabled mother, and wishes to remain available to assist her. The Applicant also has a supportive family network, as well as the support of the wider Kunama community, in Brisbane.  These should be seen as protective factors, galvanising the prospect that the Applicant is only of a low risk of further offending.  

   [57] Exhibit A1, Applicant’s Statement of Facts, Issues & Contentions, paragraphs 32 – 34.

   [58] Exhibit A1, Applicant’s Statement of Facts, Issues & Contentions, paragraphs 35 – 42.

3. Ultimately, the Tribunal determines that insufficient steps have been taken to reduce the Applicant’s risks of re-offending.  As such, the Applicant does still present as a significant risk of further harm if released back into the Australian community, such that the risk must be categorised as ‘unacceptable’.  Unfortunately, the various factors raised by the Applicant as the basis for his now contending that he is only a low risk of future harm to the Australian community are just not enough to ameliorate the concern.  The Tribunal therefore concludes that protection of the Australian community becomes a primary consideration that weighs very heavily in favour of non-revocation.

   The Best interests of minor children in Australia affected by the decision

4. Paragraph 13.2 in the Ministerial Direction sets out various factors that, wherever relevant, must be considered as part of an assessment of the best interests of minor children in Australia who will be impacted by a visa refusal decision.  Here, the Applicant is a young man with no children of his own, and there are no siblings or family members under the age of eighteen.  The Applicant himself concedes[59] that this primary consideration is of no present relevance.    

   [59] Exhibit A1, Applicant’s Statement of Facts Issues and Contentions, paragraph 42.

5. The Tribunal determines that this primary consideration attracts neutral weight.

   Expectations of the Australian Community.

6. Paragraph 13.3(1) of the Ministerial Direction specifies that the Australian community expects non-citizens to obey Australian laws while in Australia.  Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person.  Non-revocation may be appropriate simply because of the nature of the character concerns or the offences are such that the Australian community would expect that the person should not hold a visa.  Decision-makers are required to have due regard to the Government’s views in this respect, which reflect those of the Australian community,[60] yet the question as to whether it is appropriate in all the circumstances to act in accordance with those expectations remains a matter within the Tribunal’s discretion.[61]

   [60] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [66] – [67] (per Charlesworth J), [91] & [104] (per Stewart J)

   [61] Ibid, at [76] (per Charlesworth J); and [97], (per Stewart J).

7. Paragraph 6.3 in the Ministerial Direction sets out a number of Principles, that must[62] be taken into account by the Tribunal, in terms of it further understanding primary considerations in Part B, which include the expectations of the Australian community:

   (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;

   (2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;

   (3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;

   (4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;

   (5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;

   (6)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and

   (7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.

   [62] Ministerial Direction, paragraph 7.1(a).

8. The Respondent submits[63] that, in light of Principles 6.3(2), 6.3(3), and 6.3(4) (above), the Australian community would expect that the Applicant should not hold a visa on account of the serious crimes that he has committed, and that this primary consideration must weigh heavily against revocation of the mandatory visa cancellation decision.

   [63] Exhibit R1, Respondent’s Statement of Facts, Issues & Contentions, paragraph 35.

9. The Applicant submits[64] that informed by the specific circumstances of this case and particularly after having regard to the hardships and privations of the Applicant’s early life in refugee camps in Ethiopia; and the suicide of his father during his final year at High School, the community would find the Applicant’s offending “inexcusable but not to the extent that his removal should occur”.[65]  In light of that, the Applicant submits[66] that the expectations of the Australian community should only attract a neutral degree of weight, in terms of determining the question of non-revocation.

   [64] Exhibit A1, Applicant’s Statement of Facts, Issues & Contentions, paragraph 45.

   [65] Exhibit A1, Applicant’s Statement of Facts, Issues & Contentions, paragraph 45.

   [66] Exhibit A1, Applicant’s Statement of Facts, Issues & Contentions, paragraph 46.

10. The Tribunal has assessed the Applicant’s conduct as ‘very serious’, and also assessed the risk of the Applicant re-offending as ‘unacceptable’.  The Applicant has been convicted of offences of robbery with actual violence, whilst in company.  These offences were random acts of violence, of a kind that has an entirely unsettling impact on the community, and are corrosive of the right of Australian citizens and residents to be able to feel safe whenever they are at large in the community. In these circumstances - and in particular light of paragraphs 6.3(2) and 6.3(3) in the Ministerial Direction - the expectations of the Australian Community must be assessed as weighing very heavily against revocation of the mandatory visa cancellation decision.

    OTHER CONSIDERATIONS.

11. As to the various ‘other considerations’ identified in paragraph 14 of the Ministerial Direction, both the Applicant and the Respondent submit that[67] only (a), Australia’s international non‑refoulement obligations; (b), Strength nature and duration of the Applicant’s ties to this country; and (e), the Extent of the impediments that would be faced by the Applicant if removed from Australia now require consideration by the Tribunal.

    [67] Exhibit A1, Applicant’s Statement of Facts, Issues & Contentions and Exhibit R1, Respondent’s Statement of Facts, Issues & Contentions.

    International Non-refoulement obligations

12. Australia’s international non-refoulement obligations are detailed in paragraph 14.1 of the Ministerial Direction.  The Applicant submits[68] that non-refoulement obligations do arise in his case, and submits:

    ·Eritrea has an unenviable record for human rights abuses.  According to a 2016 report of the United Nations Human Rights Council Commission of Inquiry into human rights in Eritrea, ‘the government of Eritrea is responsible for systematic and widespread human rights violations that may amount to crimes against humanity… including crimes of enslavement, imprisonment, enforced disappearance, torture, persecution and murder[69]’.

    ·The Applicant is at risk of persecution in Eritrea, on account of his Kunama ethnicity and the presumed Ethiopian sympathies and other political views that attach to that.

    ·The Applicant’s risk is compounded, because his family fled Eritrea.  There may be government reprisals in consequence of that.

    ·The Applicant faces the prospect of indefinite compulsory military conscription;

    ·A 6 May 2020 report by Civil Rights Defenders describes the Eritrean indefinite military conscription and human rights situation as ‘dire’, notwithstanding the 2018 peace accord with Ethiopia.

    ·Observers reports from June 2015 (particularly the UN Human Rights Committee Commission of Inquiry on human rights in Eritrea) conclude that there is no guarantee of safety and freedom from reprisal action in the case of Eritreans returning from abroad after having previously claiming refugee status, and that “individuals forcefully repatriated are inevitably considered as having left the country unlawfully, and are consequently regarded as [not only] serious offenders, but also as ‘traitors’”.

    ·The Applicant will be easily identifiable as a returning ‘failed asylum seeker’ of Kunama ethnicity, and will be regarded with suspicion by other Kunama, in Eritrea.

    [68] Exhibit A1, Applicant’s Statement of Facts Issues and Contentions, paragraphs 46 – 56.

    [69] Exhibit A1, Applicant’s Statement of Facts, Issues & Contentions, paragraph 47.

13. The Respondent submits[70] that the country information provided by the Applicant in support of the non-refoulement contentions raised by the Applicant is insufficient to bear out those contentions. 

    [70] Exhibit R1, Respondent’s Statement of Facts Issues and Contentions, paragraph 42.

14. Here, the Respondent observes that, in part, the Applicant seeks to rely on country information from as long ago as 2003, yet in circumstances in which the more recent and official (2017) Department of Foreign Affairs and Trade (‘DFAT’) country information states that ethnic tensions and officially sanctioned ethnic discrimination is now rare in Eritrea.

15. In relation to the Applicant’s claim that he is at further risk of harm in consequence of his family having fled Eritrea during the Eritrean/Ethiopian war, the Respondent submits that, country information provided by the Applicant notes that a peace agreement between these two countries was signed in 2018, and DFAT has assessed that the act of fleeing from Eritrea is not, in and of itself likely to be a factor that will place returnees to Eritrea at risk of serious harm.  There are also reports that the penalties for those whom have previously left Eritrea illegally have been waived by the Eritrean authorities.  In relation to the Applicant’s claim that he is at risk of harm in Eritrea because of the chance that he will be viewed as a failed asylum seeker, DFAT assessments have been that many Eritrean asylum refugees have since returned to visit Eritrea, and there is no evidence known to DFAT to suggest that those returning have then faced reprisals, or other forms of ill-treatment in consequence of their having sought asylum from Eritrea.

16. Although it is conceded by the Respondent that the Applicant will be required to undertake national service in Eritrea, and that there are some reports of cases of indefinite conscription, those reports exist alongside in-country assessments that conclude that the conditions of service for Eritrean national service conscripts vary considerably.  While the Applicant is at risk of punishment in the event of his not completing Eritrean national service, the Respondent submits that risk is insufficiently described or certain for the Tribunal to now be able to conclude that the Applicant is at real risk of harm.

17. In addition to the insufficiency of evidence to support a finding that non-refoulement obligations are owed to the Applicant, the Respondent also submits[71] that the Tribunal should consider the fact that it remains open to the Applicant to apply for a protection visa.

    [71] Exhibit R1, Respondent’s Statement of Facts Issues and Contentions, paragraph 47.

    Assessment

18. The Tribunal notes that Ministerial Direction No. 56 of 2013 specifies that the Tribunal ‘must’ take into account assessments prepared by DFAT expressly for the purposes of protection status determinations, although the decision-maker is not thereby precluded from considering other relevant information.  Here, the Tribunal takes the view that assessment of claims arising pursuant to Australia’s international non-refoulement obligations fall into a similar category as do protection status determinations; such that DFAT country information must similarly be taken into account by the Tribunal.

19. In the DFAT Country Information Report on Eritrea dated 8 February 2017, a note appears in reference to reliance on UN Commission of Inquiry Reports into human rights in Eritrea.  Amongst other things, that note records[72]:

    ·The UN Commission of Inquiry on human rights in Eritrea produced reports in each of 2015 and 2016 (‘the reports’).  Both of these were highly critical of human rights violations in Eritrea.

    ·The reports have since been strongly criticised by international observers for having relied solely on the testimony of Eritrean refugees already residing outside Eritrea, and for having not also taken the precaution of seeking to interview diplomats, and other UN and NGO staff working inside Eritrea for confirmation, before expressing those conclusions.

    ·The 2015 report, in particular, is identified as having key analytical weaknesses that make it very difficult to know whether the events described in it are ongoing, or not.

    ·DFAT still assesses the reports as ‘useful’, yet reliance is only placed on their content in the event that the content is first confirmed, via other sources.

    [72] Exhibit R2, Tender Bundle, pages 28 – 59.

20. Ultimately, the Tribunal concludes that a strong measure of evidential primacy needs to be given to the official country information reports prepared by DFAT, particularly in circumstances wherein DFAT does go to efforts to confirm the provenance and reliability of factual matters, before these are included in the country information reports.  The Tribunal needs to be shown compelling contrary evidence, before it will depart from different views that have been expressed in the DFAT country information reports.  That is not the case in this matter. 

21. On the available evidence, the Applicant is at risk of being required to undertake compulsory national service in Eritrea, yet the risk of the Applicant suffering actual harm in consequence of that, or of his being forced to undergo an indeterminate period of conscription, are not now concerns that can be sufficiently demonstrated, on the available evidence.  The Tribunal concludes therefore that some weight in favour of revocation attaches to this consideration, however it is not enough to outweigh the very heavy weight attached by the Tribunal to Primary Considerations A, protection of the Australian community from criminal and other serious conduct and C, the expectations of the Australian community.

    Strength nature and duration of the Applicant’s ties to Australia

22. The Applicant submits that he has substantial ties to Australia having lived here since the age of approximately 12. All of the Applicant’s immediate family are now residents in Australia and all of the Applicant’s social and cultural ties are within the Kunama community in Brisbane.

23. The Respondent acknowledges that the Applicant has lived in Australia for 10 years, and that all of his close family, including his mother and four siblings, now live in Australia.  Although it is conceded that family members will face emotional hardship in the event that the Applicant is deported, there is no evidence that they are financially reliant on the Applicant.  The Respondent therefore submits that this factor does not outweigh those primary considerations in favour of non-revocation[73].

    [73] Exhibit R1, Respondent’s Statement of Facts, Issues & Contentions, paragraphs 51 – 53.

1. The Tribunal concludes that this factor does weigh fairly strongly in favour of revocation of the mandatory visa cancellation decision. However, this factor does not outweigh those primary considerations in favour of non-revocation.

   Extent of impediments if removed

2. Paragraph 14.5 of the Ministerial Direction requires that consideration be given to the impediments that the Applicant may face, in the event that he is deported from Australia to his home country, in terms of re-establishing himself and maintaining basic living standards (assessed in the context of what is generally available to other citizens of that country), when taking into account the Applicant’s age and health; and whether there are substantial language or cultural barriers; and in light of any social, medical or economic supports available to the Applicant in that country. 

3. The Applicant submits that the difficulties and impediments that he will face in the event that the mandatory visa cancellation decision is not revoked - such that he is deported back to Eritrea - will be ‘enormous’.  The Applicant has no family or tribal connections in Eritrea, and submits that the Kunama still in Eritrea will be apt to offer him no support, by reason of his having fled from Eritrea, previously[74].  The Applicant also submits[75] that his Eritrean language skills are truncated, and he does not have any trade skills that will assist in his obtaining employment.

   [74] Exhibit A1, Applicant’s Statement of Facts, Issues & Contentions, paragraphs 64 – 67.

   [75] Transcript, page 19, line 35.

4. The Respondent contends that the Applicant is a young man, with no diagnosed physical or mental health conditions, yet also acknowledges that healthcare and social welfare support in Eritrea are very limited.  Despite that, the Respondent submits that there is no evidence to suggest that the Applicant would be denied access to any of these services to the extent that these are available to other Eritrean citizens. Viewed in that context, as required by paragraph 14.5(1) of the Ministerial Direction, and although the Applicant is likely to face some difficulties when seeking to re-establish himself in Eritrea, the Respondent submits that the extent of impediments is not such as to be assessed as insuperable[76].

   [76] Exhibit R1, Respondent’s Statement of Facts, Issues & Contentions, paragraphs 54 – 58.

5. The Tribunal concludes that the impediments the Applicant will face upon deportation to Eritrea will be initially very challenging, but these will not be insuperable.  The Applicant is a young man, and in apparent good health.  The Applicant has the ability to speak English and has completed a year 12 education in Australia, as well as some trade training in Australia.  These skills may assist the Applicant when in Eritrea.   

6. This Tribunal determines that the extent of impediments does lend fairly strong weight in favour of revocation of the mandatory cancellation decision.  However, this factor does not outweigh those primary considerations in favour of non-revocation.

   CONCLUSION

   Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?

7. As has been noted, the Applicant does not pass the character test. Having regard to the Ministerial Direction and to the totality of the evidence before me, I am of the view that there is not now ‘another reason’ to revoke the cancellation decision. The Tribunal should therefore exercise the power conferred by s.501CA(4) by refusing to revoke the mandatory visa cancellation.

8. In reaching this conclusion, I have had regard to the considerations referred to in the Direction. With regard to the weight allocatable to each of these Primary and Other Considerations, I find as follows:

   ·Primary Consideration A weighs very heavily in favour of non-revocation;

   ·Primary Consideration B attracts neutral weight;

   ·Primary Consideration C weighs very heavily in favour of non-revocation of the mandatory visa cancellation decision;

   ·Other Considerations (c) and (d) are of neutral weight, or are not relevant to this consideration;

   ·Other consideration (a) is of some weight in favour of revocation of the mandatory cancellation decision;

   ·Other Considerations (b) and (e) weigh fairly strongly in favour of revocation of the mandatory visa cancellation decision, yet that weight when coupled with that attached to other consideration (a) is still not sufficient to outweigh the very heavy measure of weight attaching to Primary Considerations A and C; and

   ·The combined weight of Primary Consideration A and Primary Consideration C determinatively weighs in favour of non-revocation.

9. The Tribunal concludes that a holistic application of the considerations in the Direction to the evidence therefore favours non-revocation of the mandatory cancellation of the Applicant’s visa.

   Decision

10. The decision under review is affirmed.

I certify that the preceding 91 (ninety one) paragraphs are a true copy of the reasons for the decision herein of Member Andrew McLean Williams

[SGD]

Associate

Dated: 19 March 2021

Dates of hearing:

9 February 2021

Solicitor for the Applicant:

Terry Fisher

Fisher Dore Lawyers

Solicitor for the Respondent:

Matthew Hawker

Sparke Helmore

ANNEXURE A

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL No: 2020/7893 General Division
Re:	MCVN Applicant
And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs	Respondent

DECISION

TRIBUNAL:              Member Andrew McLean-Williams

DATE:   16 February 2021

PLACE:                    Brisbane

DECISION:Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 23 November 2020 to not revoke the cancellation of the Applicant’s visa.

The Tribunal will give written reasons for this decision within a reasonable time of the decision.

...............................[SGD]..............................

Member Andrew McLean-Williams

ANNEXURE B

File No      2020/7893

Between     MCVN (Applicant)

AndMINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS (Respondent)

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (pages 1 to 123)	-	14 December 2020
R1	Respondent’s Statement of Facts, Issues and Contentions (pages 1 to 15)	28 January 2021	28 January 2021
R2	Respondent’s Tender Bundle (pages 1 to 65)	-	28 January 2021
A1	Applicant’s Statement of Facts, Issues and Contentions (12 pages)	18 January 2021	18 January 2021
A2	Letter of support from the Applicant’s older brother (two pages)	undated	28 December 2020
A3	Applicant’s statement (three pages)	18 January 2021	18 January 2021
A4	Country information (pages 1 to 96)	-	18 January 2021
A5	Statutory Declaration of the Applicant’s older brother (five pages), with annexure: ·     Annexure JGP-1: Medical Report from Inala Primary Care General Practice dated 15 January 2021	18 January 2021	18 January 2021
A6	Applicant’s Reply (two pages)	29 January 2021	29 January 2021