Mundele and Minister for Home Affairs (Migration) - [2019] AATA 4968

Mundele and Minister for Home Affairs (Migration) [2019] AATA 4968 (25 November 2019)
Division:GENERAL DIVISION
File Number(s): 2019/5493
Re:David Pergoleze Mundele
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Linda Kirk
Date:25 November 2019
Place:Sydney

The Reviewable Decision is affirmed.
.............................[SGD]...........................................
Senior Member Linda Kirk
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation – where Applicant does not pass the character test – sentenced to three years imprisonment – whether there is another reason to revoke the cancellation of the Applicant’s visa – application of Ministerial Direction 79 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499, 500, 501, 501CA
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83
BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456
Dalley and Minister for Home Affairs (Migration) [2019] AATA 3738
DGI19 v Minister for Home Affairs [2019] FCA 1867
DKXY v Minister for Home Affairs [2019] FCA 495
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCFAC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Jal v Minister for Immigration and Border Protection [2016] AATA 789
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Omar v Minister for Home Affairs [2019] FCA 729
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tuioti and Minister for Home Affairs (Migration) [2019] AATA 4423
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Senior Member Linda Kirk
25 November 2019

Mr David Pergoleze Mundele (‘the Applicant’), a citizen of New Zealand, was born in 1996.[1] Prior to its cancellation, the Applicant held a Class TY Subclass 444 Special Category (Temporary) visa. His most recent arrival into Australia was on 29 August 2016.
[1] Exhibit R1, 2.
On 20 July 2018, the Applicant was convicted in the District Court of New South Wales of the offences Knowingly deal with proceeds of crime and Use false document to obtain financial advantage and was sentenced to three years imprisonment.
On 6 September 2018, the Department issued the Applicant with a Notice of Visa Cancellation (‘the Mandatory Visa Cancellation Decision’) under s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) on the basis that he did not satisfy the character test in s 501(6) of the Act by virtue of the term of imprisonment referred to above.[2] On this date, the Applicant was serving a sentence of full-time imprisonment at Bathurst Correctional Centre in New South Wales. The Applicant was notified of the decision and invited to make representations about revoking that decision.
[2] Exhibit R1, 174.
On 3 October 2018, the Applicant made a request for revocation of the Mandatory Visa Cancellation Decision and made representations to the Minister in support of his revocation request.[3] Further material and submissions by his then representative were made over the following months.[4]
[3] Exhibit R1, 60-76.
[4] Exhibit R1, 77-96.
On 2 September 2019, a delegate of the Minister decided not to revoke the Mandatory Visa Cancellation Decision under s 501CA(4) of the Act (‘the Reviewable Decision’).[5] The delegate was not satisfied the Applicant passed the character test, or that there was another reason why the cancellation decision should be revoked. The Applicant was notified of the decision on the same day. At this time the Applicant had completed his non-parole period of imprisonment and he had been transferred into immigration detention where he remains.
[5] Exhibit R1, 15-29.
The Applicant lodged an application with the Administrative Appeals Tribunal (‘the Tribunal’) seeking a review of this decision on 3 September 2019.[6]
[6] Exhibit R1, 1-5.
The matter was heard by the Tribunal at a hearing in Sydney on 11 November 2019. The Applicant attended the hearing in person and was self-represented. The following persons gave evidence at the hearing:
·the Applicant; and
·Mrs Charlotte Ndumba Ndala – the Applicant’s mother.
The material before the Tribunal consists of:
·Respondent’s Statement of Facts, Issues and Contentions (‘SFIC’) dated 25 October 2019;
·G documents (pages 1 – 211) – Exhibit R1;
·Applicant’s Statement of Facts, Issues and Contentions (‘SFIC’) dated 8 October 2019 – Exhibit A1;
·Applicant’s statement dated 8 October 2019 attaching article ‘Scant help for refugees’ – Exhibit A2;
·Applicant’s Response to Respondent’s Statement of Facts, Issues and Contentions of the Respondent dated 31 October 2019– Exhibit A3:
·Statement of Charlotte Ndumba Ndala dated 8 October 2019 – Exhibit A4;
·Bundle of documents as follows – Exhibit A5:
oStatement of Ami Mundele and Monica Mundele dated 8 October 2019;
oStatement of Obede Nsesani dated 8 October 2019;
oStatement of Annie Ntumba Mata dated 8 October 2019;
oStatement of Kenneth Landers, undated;
oInternal Food Safety Certificate dated 6 March 2019;
oBarista Workshop Certificate dated 24 April 2019;
oBarbering Workshop Certificate dated 23 May 2019;
oPhotograph of April Barber Workshop 2019, undated;
oMinistry School – Bible, Certificate of Attendance, undated.
The Tribunal has reviewed all of the evidence before it and refers to all relevant materials below.
LEGISLATION
Subsection 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:
(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)    …; 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.
Paragraph 501(6)(a) relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Relevantly, a person has a substantial criminal record if the person has been sentenced to ‘a term of imprisonment of 12 months or more’: s 501(7)(c).
Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: s 501CA(1).
Subsection 501CA(4) confers on the Minister the discretion to revoke the original cancellation decision under s 501(3A), termed ‘the original decision’. Subsection 501CA(4) provides:
(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.
Paragraph 500(1)(ba) of the Act provides that applications may 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.
MINISTERIAL DIRECTION NO. 79
When considering whether to revoke the cancellation decision, the Tribunal is required under s 499(2A) to have regard to the Minister’s Direction relevant to s 501CA, Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘the Direction’).
The Preamble to the Direction provides a framework for the guidance of decision-makers considering cancellation of a visa. Paragraph 6.1 of the Direction begins with a statement of Objectives, the first of which is as follows:
1The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
The Objectives are followed by paragraphs 6.2 and 6.3 described as General Guidance and Principles respectively. The latter provide the framework within which the considerations set out in Parts A, B and C of the Direction are set.
The first paragraph of the General Guidance provides:
1The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
The following Principles are set out in paragraph 6.3:
1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2The 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.
3A 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.
4In 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. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
5Australia 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. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
6Australia 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 should be allowed to come to, or remain permanently in Australia.
7The 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 in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1) sets out how the discretion under s 501 is to be exercised:
1Informed by the principles in paragraph 6.3 above, a decision-maker:
(a)must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
(b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
In the Applicant’s case, Part C is applicable as it is directed to revocation requests made in relation to mandatory visa cancellation decisions made under s 501(3A).
In applying any of the Parts, including Part C, paragraph 8 of the Direction sets out how the considerations are to be applied by a decision-maker. Decision-makers must take into account the primary and other considerations relevant to the individual case. The considerations differ among the three Parts and the reason for that difference is explained in paragraph 8(1):
… Separating the considerations for visa holders and visa Applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa Applicant should have no expectation that a visa application will be approved.
Part C of the Direction provides more specific considerations in determining whether to revoke a mandatory cancellation of a non-citizen’s visa. These include ‘Primary considerations’ and ‘Other considerations’. The Primary considerations are:
(a)Protection of the Australian community from criminal and other serious conduct;
(b)The best interests of minor children in Australia affected by the decision; and
(c)Expectations of the Australian community.
The Other considerations are:
(a)       International non-refoulement obligations;
(b)       Strength, nature and duration of ties [to Australia];
(c)       Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
Paragraph 8(2) of the Direction stipulates that in taking into account the primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 8(3) provides that ‘[b]oth primary and other considerations may weigh in favour of, or against … whether or not to revoke a mandatory cancellation of the visa.’ Paragraphs 8(4) and (5) provide that primary considerations should be given greater weight than other considerations, and one or more primary considerations may outweigh other primary considerations.
ISSUES FOR DETERMINATION
Before the power in s 501CA(4) to revoke the original decision is enlivened, the decision-maker must be satisfied that the conditions for the exercise of the power have been met.
There is no dispute that the Applicant made the representations required by s 501CA(4)(a). The issue is whether the discretion to revoke the Mandatory Visa Cancellation Decision may be exercised. In Minister for Home Affairs v Buadromo,[7] the Full Court of the Federal Court of Australia made the following observations in relation to s 501CA(4):
... there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view ...[8]
[7] [2018] FCAFC 151.
[8] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
The issues for determination are whether:
(a)the Applicant passes the character test; and
(b)there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.
If the Applicant succeeds on either ground, the Tribunal must find that the Mandatory Visa Cancellation Decision must be revoked.
EVIDENCE BEFORE THE TRIBUNAL
Early background and migration to New Zealand
The Applicant was born in the Democratic Republic of Congo in March 1996. That year his father went to New Zealand as a student and claimed asylum. The Applicant and his mother remained in the Congo. He and his mother escaped the Congo on the day the rebels took the capital, Kinshasa.[9] The Applicant was 12 months old when he arrived in New Zealand.[10]
[9] Exhibit A2.
[10] Transcript p32.
The Applicant attended school in New Zealand. He left high school in 2013 when he was aged 16 years. He was asked to leave school early for bad behaviour.[11] When he was at school he started buying replica items on the internet to resell at school to make a profit.[12] He told the Tribunal he ran this business with a school friend who later ‘wiped’ clean their business account of $400.[13] After he left school he worked as labourer.[14] He then worked as a car groomer/detailer for 11 months at two car dealerships.[15]
[11] Transcript p16.
[12] Exhibit R1, 112.
[13] Exhibit R1, 86; Transcript p18.
[14] Exhibit R1, 112.
[15] Exhibit R1, 83.
Visits to Australia
The Applicant told the Tribunal that his first visit to Australia was for one month in December 2005. He travelled with his father and two younger sisters to Adelaide.[16] It was intended to be a permanent move, but his mother contacted the police as she was not aware they were leaving. They returned to New Zealand on 18 January 2006.[17]
[16] Transcript p9; Exhibit R1, 172.
[17] Transcript p9; Exhibit R1, 172.
The Applicant next entered Australia on 14 April 2014. His father and his sisters came to Australia in early 2014 and he and his mother followed them later, arriving in April. They lived together as a family in Perth. The Applicant found work in a sales job at a marketing company where he worked for three or four months. The rest of the time he was looking for work and trying to study.[18] He told the Tribunal that he was residing in Perth at this time but making regular trips to Queensland (Brisbane) to visit a family friend.[19]
[18] Transcript p10.
[19] Transcript p10.
On 7 November 2014 the Applicant left Australia and returned to New Zealand where he remained for 13 months.[20] He told the Tribunal he returned to visit a friend who had terminal cancer.[21] He resumed working at his old job as a car detailer. He was doing well in this job until he had an argument with a work colleague (a family member of the boss) after he told him that he needed to work more quickly.[22] After this argument the Applicant started getting death threats and was ‘jumped’ when he was leaving a club.[23] He realised that his work colleague was an associate of the bikie group, Mongrel Mob, and he then became aware that his life was in danger. Photos and video threats were posted on Facebook, and his house was broken into a couple of times, and his passport was stolen and he was ‘stranded’ in New Zealand.[24] The group put a ‘hit’ or ‘bounty’ of $100,000 on the Applicant.[25] Members of the group visited him at work which led him to quit his job.[26] They gave him an ‘ultimatum’ and told him to ‘never step foot in New Zealand again’ or he could ‘kiss [his] life bye bye’.[27] When he got his passport back he booked a flight and left New Zealand and returned to Australia on 14 December 2015.[28]
[20] Exhibit R1, 172.
[21] Transcript p11-12.
[22] Transcript p11.
[23] Transcript p11; Exhibit R1, 127.
[24] Transcript p11; Exhibit R1, 83; Exhibit R1, 127.
[25] Exhibit R1, 83.
[26] Exhibit R1, 83.
[27] Transcript p14; Exhibit R1, 83.
[28] Exhibit R1, 172.
In a written statement in support of his request for revocation the Applicant referred to the business he ran with his school friend and said that it was following this that the ‘bounty’ was put on his head by the Mongrel Mob.[29] During cross-examination he was asked about the inconsistency between this and his evidence that it was a work colleague that arranged for the ‘bounty’ on him. He explained that they are the same person and they had ‘quite a few problems’.[30] The school friend arranged for him to get the job at the car detailer and he became a work colleague.[31] The Applicant denied that he had lied about this and said that he had left out some ‘crucial facts’.[32] It was put to the Applicant that it was implausible that someone would organise to take a hit out on him because of an argument at work.[33] He said he does not know why his colleague did this and that it may have been out of anger or pride.[34] Or he could have been trying to ‘line [him] up the whole time’.[35] He denied he had made this up and said that he did not go to the police because the police may be able to protect him from one person but they cannot protect him from all members of the Mongrel Mob. His life and that of his family members would be put at risk.[36]
[29] Exhibit R1, 86.
[30] Transcript p15-16.
[31] Transcript p18, 24.
[32] Transcript p16-17.
[33] Transcript p21.
[34] Transcript p17.
[35] Transcript p24.
[36] Transcript p21.

After arriving in Australia on 14 December 2015, the Applicant returned to New Zealand one month later on 15 January 2016. He remained in New Zealand for seven months and returned to Australia on 29 August 2016.[37] He told the Tribunal that he does recall returning to New Zealand for seven months, but cannot remember the dates.[38]
[37] Exhibit R1, 172.
[38] Transcript p13.
The Applicant was asked why, if he had all the problems he described with the Mongrel Mob, he returned to New Zealand within the space of a month after leaving there in December 2015, as this is inconsistent with his claim that he was in fear of his life.[39] The Applicant denied he had made this up. He said he returned to see whether things had ‘died down’.[40]
[39] Transcript p20-21.
[40] Transcript p22.
Criminal offending
A National Police Check Results Report in relation to the Applicant dated 3 May 2019 records the following convictions on 20 July 2018:[41]
·Knowingly deal with proceeds of crime – sentenced to three years imprisonment with a non-parole period of one year and six months;
·Use false document to obtain financial advantage – sentenced to 12 months imprisonment (to be served concurrently).
[41] Exhibit R1, 30-31.
The Applicant committed offences which ultimately resulted in these convictions and sentences between 28 June 2017 and 5 July 2017.
The Applicant was involved in actions leading up to these offences from 13 June 2017. On this day, he went to a shop in North Ryde and arranged for a number of passport photos to be taken of him in different coloured tops. At a later time he returned and had another four passport photos taken of him wearing a light-coloured top. Between 13 and 27 June 2017 the Applicant supplied the passport photos to an unknown male who he knew would use them in false identification documents. The photos were used to produce two different kinds of identity documents, one being a Portuguese passport and the other being a citizen card.[42]
[42] Exhibit R1, 41.
On 15 June 2017, a person working for a corporation wrote out a cheque in the amount of $537,804.31 for payment to a person called ‘Diona’. The cheque was posted to an address at Rouse Hill the same day and the cheque was apparently stolen by somebody unknown between 15 and 27 June 2017.[43] The Applicant then obtained the cheque, and on 27 June 2017 attended another bank on Pitt Street and opened a bank account using the false identity documents. He then opened a second on-line account relying on the false identity documents. On 28 June 2017 he attended the bank’s Wynyard branch and deposited the stolen cheque into his account. The cheque had been altered to remove the reference to the name ‘Diona’ and replaced with the Portuguese name on the passport as the payee.[44]
[43] Exhibit R1, 41-42.
[44] Exhibit R1, 42.
On 1 July 2017 the Applicant transferred $1 from the account to the on-line account to ensure that this could be done. Between 1 and 5 July 2017 he disbursed $388,572.39 of the total funds. Of this amount, $80,000 was transferred into an account in the Applicant's own name and $100,000 was transferred into a bank account in another person’s name. These amounts were recovered, but about $200,000 was not recovered from the total amount stolen.[45] As at 5 July 2017, $94,000 remained in the Applicant’s on-line account and $55,187.92 remained in the account.[46]
[45] Exhibit R1, 42-43.
[46] Exhibit R1, 42.
The Applicant was arrested on 5 July 2017 while attempting to withdraw a further $60,000 from the account.[47] He was told by bank staff he could only withdraw $15,000 and they became suspicious and police were called. Police found the equivalent of approximately $25,000 in cash on the Applicant, in both Australian and foreign currency. He also had the false identity documents, a debit card in the name of De Silva for the bank account into which $100,000 had been transferred, and various receipts for deposits and transfers.[48]
[47] Transcript p34.
[48] Exhibit R1, 43.
The Applicant told police he had been recruited by a person called ‘King Pin’ with the lure of money. He said he felt ‘under pressure’. He claimed that there were threats made to his family in the Congo, specifically the threat of some ‘black magic’ being used on him.[49] The Applicant told the Court he was given instructions by King Pin to do various things but he had no phone number for him. He thought he would receive between $5,000 and $20,000 from the offences.[50] The Applicant told the Tribunal he understood that this was for his participation in the fraud offences and the risk he was taking. He would have accepted the amount he was given and been content with it ‘because there’s some people you just can’t really question or challenge …’[51] He said he does not know what happened to the unrecovered $200,000.[52]
[49] Exhibit R1, 43.
[50] Exhibit R1, 44.
[51] Transcript p36.
[52] Transcript p36.
During cross-examination the Applicant was asked about his involvement in this offence. He said he was told that he was ‘going to be involved in something that was going to help [him] make easy money.’[53] He met the person known as King Pin through a friend who was ‘living a lavish life’ and the Applicant asked him to help him out.[54] He told the Tribunal that once he was in there was no way he could really back out. There were threats made to his family in Perth and in the Congo which were ‘spiritual’ or ‘black’ magic.[55] He said that at the time he had relatives in the Congo but they are now in Uganda where they went as refugees.[56] He did not warn his family about these threats.[57]
[53] Transcript p26.
[54] Transcript p26.
[55] Transcript p28-30.
[56] Transcript p29.
[57] Transcript p31.
In his sentencing remarks, Judge Norrish QC did not accept that the Applicant was acting under some form of threat or duress.[58] The Judge accepted that the person named King Pin was from the Congo. While the Judge did not find beyond reasonable doubt that the Applicant was the architect of the ‘syndicate’ but rather a paid ‘employee’ acting at the behest of another person or others, he found that the Applicant's role was ‘very significant’. Although the Applicant ‘was not the organiser’, he ‘was a willing participant’ and ‘did so for financial gain’.[59] The Judge noted that the Applicant transferred funds between accounts including an account in his own name.
[58] Exhibit R1, 45.
[59] Exhibit R1, 51.
The Judge accepted that the Applicant ‘is currently motivated to avoid offending in the future … given the absence of the criminal history.’[60] The Judge stated that he did not believe the community needed to be ‘protected’ from the Applicant because he did ‘not believe that he is a continuing risk to others.’[61] He was prepared to accept on balance that the Applicant is ‘now unlikely to reoffend’ and that ‘he does have good prospects of rehabilitation’.[62] The Judge further accepted that the Applicant ‘is a person who has expressed remorse’ and ‘has accepted responsibility for his action’.[63]
[60] Exhibit R1, 50.
[61] Exhibit R1, 52.
[62] Exhibit R1, 54.
[63] Exhibit R1, 55.
Remorse and responsibility for offending
In his statement in support of his request for revocation the Applicant wrote:
I’m not going to blame anyone for this crime I committed even though I feel like I was used and manipulated into doing so. I let my thirst for money get the best of me and in doing so I let my family down and my partner down. I brought shame on my family, my church and my Congolese community.[64]
[64] Exhibit R1, 86.
In his statement to the Tribunal the Applicant wrote:
Whilst at the time of my offence I had little say in decision making, I would like to acknowledge that my initial involvement was by choice. I may not have known what I was getting myself into, but the onus was on me to research and know the exact nature of things I would be made to do by associating with these people in the first place. Therefore I take full responsibility for my actions. I accept that I could have dissociated myself from these people before I committed my crime. Greed was a factor in me joining them, and that places full responsibility on me.[65]
[65] Exhibit A1, 3.
Risk of reoffending and rehabilitation
In his Personal Circumstances Form in response to the question, ‘What do you think is the likelihood that you may re-offend now? the Applicant wrote:
There’s no way I want to reoffend. I can guarantee I won’t reoffend after what I’ve gone through in jail and the consequences you face with Immigration is a big wake up call. I have my family here so I don’t want to be separated from them again.[66]
[66] Exhibit R1, 72.
The Applicant has undertaken a number of courses in immigration detention including a Barbering Workshop course,[67] an Internal Food Safety course,[68] a Barista Workshop course[69] and the Bible Night School course.[70] He hopes to use these skills to keep himself busy and ‘stay out of bad company’ when he is released.[71]
[67] Exhibit A5.
[68] Exhibit A5.
[69] Exhibit A5.
[70] Exhibit A5.
[71] Exhibit A5.
Plans for the future
The Applicant told the Tribunal that if he is released from immigration detention he wants to work, play rugby and contribute to his father’s new church. He would like to work with African youth or go to different churches and communities and talk about how drugs and crime, while they may make money, come with risk.[72] He said he had an offer of a job working with a photographer as his apprentice. His old boss has also said he would have him back working in his former sales job. He expects he will be working within a month or two or less. [73]
[72] Transcript p42; Exhibit R1, 86-87.
[73] Transcript p46.
The Applicant said he wants to go back home to Perth to live with his family because when he was outside he ‘neglected’ them. He wants to ‘reassure them that despite the shameful ordeal [he has] put them through, [he is] a changed man and will make them proud by being a hard worker and a role model to the young ones.’[74] His parents are ‘getting old’ and he wants ‘to go back and actually be of help. Like, be a proper son. Make them proud of something.’[75]
[74] Exhibit A1, 5.
[75] Transcript p43-44.
The Applicant told the Tribunal that he was involved in the church prior to his offending but he has now undertaken a Bible Study course and wants ‘to do God’s work’ and go out and preach and make a difference, particularly by helping young men.[76]
[76] Transcript p50; Exhibit A1, 5.
Relationship with family members
The Applicant told the Tribunal he has a close relationship with his mother. She has a bad back and cannot work and also suffers from schizophrenia which is under control. She has injections once or twice a week, and when he was in Perth the Applicant would take her to her appointments.
The relationship between the Applicant and his father has not been good over the years as he witnessed domestic violence by his father against his mother when he was younger and this made him ‘very angry’.[77] However since he went to gaol his father has changed and the Applicant and his father have ‘patched up’ their relationship.[78] His father came to Sydney for his sentencing and they now chat on the phone every few days and they talk about what he will do when he is released.[79] His father works in disability aged care and is also a pastor and has recently started a new church.[80]
[77] Transcript p47; Exhibit R1, 126.
[78] Transcript p48.
[79] Transcript p49.
[80] Transcript p44.
The Applicant confirmed that his family has now been in Perth for five years. During this time he lived with them for about one year.[81]
[81] Transcript p42.
The Applicant was with a partner for a period of four years while he was in Australia. She lived in New Zealand throughout this time and visited him here. She also visited him in gaol. They are no longer together, but they remain in contact.[82]
[82] Transcript p51-52.
Psychological reports
The reports of two psychologists are before the Tribunal. Michelle Pal, clinical psychologist, interviewed the Applicant in June 2018. In her opinion he has ‘undiagnosed and untreated post-traumatic stress disorder, including unresolved anger and irritability, which caused him some troubles in his past in school and at work and consequentially less opportunities for [him] to reach his full potential.’[83] She stated in her report that she believed the Applicant ‘would be very unlikely to reoffend if he maintains his current motivation and resilience and continues with his business plans or gains employment.’ She considered he would benefit from undertaking ‘formal psychological therapy’.[84]
[83] Exhibit R1, 117.
[84] Exhibit R1, 118.
In her report dated 24 April 2019, Yvette Aiello, clinical psychologist, STARTTS, stated that the Applicant ‘predominantly presented with symptoms of PTSD’ consistent with his report of multiple experiences of trauma. In her view, as a result of this trauma, the Applicant ‘likely has cognitive, emotional and behavioural impairments, which could be addressed through therapy.’[85]
[85] Exhibit R1, 131.
Concerns about return to New Zealand
The Tribunal asked the Applicant whether he still has fears in relation to the Mongrel Mob if he were to return to New Zealand. He said it is a situation that ‘hasn’t been put to bed’ and that if he returns he will be in fear because the police can only protect him to some extent. He said that he is a hard person to miss, and he has no protection as he is not a member of a gang.[86]
[86] Transcript p51.
Evidence of Mrs Charlotte Ndala
Mrs Ndala confirmed she and her family came to live in Australia in 2014.[87] Her son lived with them in Perth and he also spent time in Queensland and returned to New Zealand for about two years. It was her idea that he come back to Australia to join the family. He did not mention to her any troubles he had in New Zealand. He moved to Sydney in May 2017 to stay with friends.[88] She agreed that the Applicant lived with them in Perth for less than a year.
[87] Transcript p58.
[88] Transcript p58, 60.
She was asked about whether her son took her to her medical appointments and she said he did. When he was not living in Perth she would go by bus to these appointments. Mrs Ndala said that she has two daughters who live at home; one is at University and the other is doing a childcare internship. They are unable to take her to her appointments due to their daily commitments.
Mrs Ndala told the Tribunal that she is very close to her son and she sends him a text every day including verses from the Bible. The last time she saw him was in March 2018 when he was in gaol. If he were to return to New Zealand she would miss him a lot and she does not know where he will live as they do not have any family there.[89]
[89] Transcript p63.
1) Does the Applicant pass the character test?
The Applicant did not dispute the Respondent’s contention that he does not pass the character test. The evidence before the Tribunal is that on 20 July 2018 the Applicant was convicted in the District Court of New South Wales of two offences and sentenced to three years imprisonment. The Tribunal is satisfied that the Applicant does not pass the character test prescribed in s 501(6)(a) as he has ‘a substantial criminal record’ as defined in s 501(7)(c). The Tribunal is also satisfied for the purposes of s 501(3A)(b) of the Act, the Applicant was serving a sentence of imprisonment, on a full time basis, in a custodial institution, for an offence against a law of the State of New South Wales.
For these reasons, the Applicant cannot rely on s 501CA(4)(b)(i) for revocation of the Mandatory Cancellation Decision.
2) Is there ‘another reason’ why the Mandatory Cancellation Decision should be revoked?
In determining whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, the Tribunal must take into account the considerations in Part C of the Direction, informed by the Principles in paragraph 6.3.
Primary Consideration A – Protection of the Australian community
Primary Consideration A of Part C is the Protection of the Australian Community. Paragraph 13.1(1) of the Direction provides:
1When 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 a result of criminal activity or other serious conduct by non-citizens. 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 consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
Paragraph 13.1(2) directs that 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.
Paragraph 13.1.1(1) sets out a number of factors to which a decision-maker must have regard in considering this matter. In the circumstances of this case, the following factors may be relevant:
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 subparagraph (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)    …
(h)    …
(i)     …
a)       Nature and seriousness of the Applicant’s conduct to date
In assessing the seriousness of the Applicant’s past criminal conduct and the risk posed should he commit further offences, the Tribunal notes that the Applicant has committed only two offences in Australia arising from one criminal enterprise, and has no criminal record in New Zealand.[90] Having regard to paragraph 13.1.1(1)(a), (b) and (c) of the Direction, the Tribunal finds that the offences for which the Applicant was convicted were not violent or committed against vulnerable people or women. However the offences included a number of criminal acts and involved fraudulently dealing with over $500,000. The Applicant was involved in the preparation stages and the facilitation of the production of fraudulent identity documents, the opening of bank accounts which he knew to be fraudulent, and the transfer of funds in significant amounts to other bank accounts, including one in his own name. The Applicant claims that he was motivated by ‘greed’ and ‘easy money’. He initially claimed that his crimes were ‘victimless’, but later acknowledged that the Australian community were ‘the biggest victims’ of his crimes.[91]
[90] Exhibit R1, 32-33.
[91] Exhibit A1, 1.
The Respondent submits that the sheer scale of the fraudulent activity in which the Applicant was involved is sufficient for his offences to be viewed as very serious.[92] The Applicant’s criminal activities occurred over a number of days and involved a degree of forward planning and organisation. When he was arrested, the Applicant was in possession of a large amount of cash, including amounts in foreign currency, which points to him being a participant in a highly organised criminal enterprise.
[92] Respondent’s SFIC [33].

The Applicant claims that, whereas he was a willing participant in the criminal enterprise, he felt he was ‘used and manipulated’ by those for whom he was working. The sentencing judge, Judge Norrish QC, did not accept that the Applicant acted ‘under duress’ or threat in relation to his involvement in the criminal enterprise. The Applicant’s claims to the Tribunal were that when he considered not going ahead with the activities he had agreed to undertake, physical and ‘spiritual’ threats were made against his family members in Australia and in the Congo. However the Applicant agreed that he did not take steps to warn his family about these threats, including after he provided information to the police that led them to search premises of a person thought to be involved in the criminal enterprise. This suggests that the Applicant either did not take the threats seriously, or that he was not in fact threatened by those from whom he received his instructions. The Tribunal finds, consistently with the findings of the sentencing judge, that the Applicant participated in the criminal activities voluntarily and of his own free will.
The sentencing judge’s comments indicate that he was unimpressed by the fact the Applicant was not forthcoming with evidence and information that may have assisted police to identify the other persons involved in the criminal enterprise. The Applicant’s evidence to the Tribunal was that he did co-operate with the authorities to the extent that a search of premises was conducted by police, but this did not lead to any further arrests or the recovery of the significant amount of money that remained unaccounted for.
The Tribunal has had regard to the sentences imposed by the Court for the Applicant’s crimes as required by paragraph 13.1.1(1)(d) of the Direction. The Applicant’s former representative noted that the sentences imposed were in the low range when considering the maximum sentences involved.[93] However, the Applicant was given a 25% discount for pleading guilty, and despite his lack of antecedents and relative youth, a sentence of three years imprisonment was imposed in relation to one of the convictions. The imposition of a custodial term is the penalty of last resort in the sentencing hierarchy and is reserved for conduct which is considered particularly serious: Jal v Minister for Immigration and Border Protection [2016] AATA 789 at [24]. The imposition of a term of three years imprisonment in the Applicant’s circumstances reflects the seriousness of the offence as considered by the sentencing judge.
[93] Exhibit R1, 99.
On the basis of the evidence before it, and having regard to the considerations in paragraph 13.1.1 of the Direction, the Tribunal finds that the Applicant’s criminal conduct, while not violent, involved organised fraudulent activity on a substantial scale, which was of sufficient seriousness to warrant a judicial officer imposing a term of three years imprisonment in circumstances in which the Applicant had no prior convictions and entered a plea of guilty. The Tribunal therefore finds that the Applicant’s offences are serious.
b) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
In assessing the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must have regard to paragraph 13.1.2 of the Direction:
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 on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for the rehabilitative courses to be undertaken).
Having regard to the nature of the harm to individuals or the Australian community if the Applicant were to re-offend as required by paragraph 13.1.2(1)(a), the Tribunal finds that any future re-offending of a similar nature by the Applicant may involve fraudulent activity resulting in financial loss to members of the Australian community. The Applicant’s criminal activity involved a very large sum of money fraudulently obtained and the use of false identity documents. While no person was physically harmed as a result of the Applicant’s offence, a large amount of money remained unaccounted for, which was presumably absorbed by the affected financial institutions, thereby impacting their shareholders and customers.
In considering the likelihood that the Applicant will engage in further criminal or other serious conduct as required by paragraph 13.1.2(1)(b), the Tribunal has had regard to the representations he made in support of his request for revocation of the Mandatory Visa Cancellation Decision,[94] and his evidence to the Tribunal.
[94] Exhibit R1, 60-76.
The Tribunal has had regard to the Applicant’s limited criminal history, which includes two offences in Australia and no criminal record in New Zealand. The Tribunal has also noted that in his sentencing remarks Judge Norrish QC stated that he did not believe that the community needed to be ‘protected’ from the Applicant because he was unlikely to be a continuing risk to others. He accepted that the Applicant would be ‘unlikely to reoffend’ and his prospects of rehabilitation were ‘good’. The Judge further accepted that the Applicant had expressed his remorse and accepted responsibility for his criminal behaviour. In her report Ms Pal also expressed the view that the Applicant ‘would be very unlikely to reoffend if he maintains his current motivation and resilience’. The Applicant’s evidence to the Tribunal is that he recognises that his offences were serious and the time he has spent in gaol and immigration detention has allowed him to fully recognise the consequences of his actions. He has undertaken courses to improve his skills and to allow him to keep himself busy when he is released and to ‘stay out of bad company’.
On the basis of the evidence before it, the Tribunal finds that the risk of the Applicant engaging in further criminal conduct is at the low end of the scale.
For the reasons above, and applying the guidance in paragraphs 13.1.1(1) and 13.1.2(1) of the Direction, the Tribunal finds that Primary Consideration A weighs against the revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration B – The best interests of minor children in Australia affected by the decision
Primary Consideration B of Part C in paragraph 13.2 requires decision-makers to make a determination about whether revocation is, or is not, in the best interests of the child.
The Applicant does not have any children and is not in a parental relationship with any child who is a minor. He has two younger sisters, born in 1998 and 1999, both of whom are over the age of 18 years. He claims to have some relationships with minor children in Australia by being a role model, and a character reference indicates a relationship with a young man born in 2000, who is therefore also an adult.[95] The Applicant has also indicated he has some cousins, nieces and nephews in Australia, but no further detail has been provided in relation to them.[96] The evidence before the Tribunal is that there are no minor children whose best interests would engage this Primary Consideration.
[95] Exhibit A2, 27.
[96] Exhibit R1, 71.
Primary Consideration C – The expectations of the Australian community
Primary Consideration C of Part C in paragraph 13.3(1) states:
1The Australian community expects non-citizens to obey Australia’s 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 the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
In YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (‘YNQY’), Mortimer J observed in relation to the consideration detailed in this paragraph of the Direction:
[76] In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] …It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese [2016] FCA 348; 248 FCR 296 at [64]-[66]).
In Afu v Minister for Home Affairs [2018] FCA 1311, Bromwich J said at [85]:
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65 ...The Tribunal was required to give effect to those norms which is precisely what it did.
This year, the Federal Court has delivered two decisions relating to the approach in determining the expectations of the Australian community: FYBR v Minister for Home Affairs [2019] FCA 500 (‘FYBR’) and DKXY v Minister for Home Affairs [2019] FCA 495 (‘DKXY’).
In FYBR, Perry J observed:
It follows, in line with the authorities, that cl 11.3 of Direction 65 is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the Applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases ...[97]
[97] FYBR at [42].
A broader approach to the determination of the expectations of the Australian community was adopted by Griffiths J in DKXY. In Dalley and Minister for Home Affairs (Migration) [2019] AATA 3738 (20 September 2019) (‘Dalley’), Senior Member Tavoularis observed that this decision is authority for the proposition that:
(a)the Government’s views regarding the expectations of the Australian community must be given due regard; and
(b)so must all other circumstances which are relevant in a particular case.[98]
[98] Dalley at [122].
On 24 October 2019, the Full Court of the Federal Court delivered its judgment in FYBR v Minister for Home Affairs [2019] FCFAC 185, being an appeal from Perry J’s judgment in FYBR. The Full Court dismissed the appeal which was concerned with the correct construction and application of cl 11.3(1) of Direction No 65, which is in all relevant respects the same as paragraph 13.3(1) of the Direction. In three separate judgments, Flick, Charlesworth and Stewart JJ did not accept that the paragraph is a ‘deeming provision’ in that it must in all circumstances require the refusal or cancellation of a visa.
Justice Flick at [18]-[19] did not accept the ‘unqualified conclusion’ of Mortimer J in YNQY at [76] that Australian community expectations are defined in one particular way, namely that there should be non-revocation of the mandatory visa cancellation in circumstances where a person has been convicted of serious crimes of a certain nature. He also did not accept that the Tribunal may not go beyond the ‘norm’ which the paragraph sets forth and go on to find that there may be other aspects of Australian community expectations of relevance to the facts and circumstances of a given case. His Honour at [20] preferred the approach of Griffiths J in DXKY at [31] that allows a finding that the expectations of the Australian community may not weigh against revocation of the mandatory visa cancellation. His Honour found that this approach was supported by the text of the Direction at [21]-22]. He emphasised at [23] that in construing the Direction and other statements of government policy, it is necessary to have regard to ‘the overarching imperative that no statement of government policy can confine what would otherwise be the full ambit of any discretionary power conferred by statute’.
Charlesworth J found at [66]-[67] that the paragraph does contain a statement of the Government’s views as to the expectations of the Australian community and to this extent it is a ‘deeming’ provision in the sense explained by Mortimer J. It is not for the decision-maker to make his or her own assessment of community expectations. However, Her Honour emphasised at [73] that the paragraph does not preclude the decision-maker from forming his or her own view as to whether the non-citizen should or should not hold a visa. The decision-maker’s assessment of whether or not the person should hold a visa may differ from the expectations of the Australian community as deemed by the Government. As she stated at [76], ‘[t]he question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion’.
Stewart J emphasised at [89]-[90] that whereas it is to be expected that the Government ‘may wish to set the norms by which decisions to refuse or cancel visas are made’ it is not to be expected that the Government would seek via this device ‘to dictate to the statutory decision-maker the outcome’ in any particular case. This would ‘be inimical to the process of decision-making that has been established under the Migration Act and would constitute unlawful dictation to the decision-maker.’ Having regard to the text of the Direction, His Honour found at [103] that Australian community expectations ‘speak normatively’ and are to be applied in every case but they are not expressed in relation to any case. He emphasised at [105] that ‘[t]he specific circumstances of the … applicant are necessarily front and centre of every decision’.
In Tuioti and Minister for Home Affairs (Migration) [2019] AATA 4423, Senior Member Tavoularis observed at [116] that the Full Court’s decision, together with YNQY and Afu establish that:
a)    The ‘expectations of the Australian community’ cannot be measured or determined as if it is a provable fact. It is an assessment of community values made on behalf of that community.[99]
b)    The Tribunal cannot determine for itself what such ‘expectations’ are by reference to the Applicant’s circumstances or evidence about those expectations;[100]
c)    The Government’s view in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the government thinks is the ‘expectations of the Australian community’, and the Tribunal should have due regard of that statement, if made;[101]
d)    In assessing the weight attributable to this Primary Consideration C, decision makers can have regard to the principles appearing in paragraph 6.3 of the Direction, in particular subparagraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this Primary Consideration is a matter for the decision maker.[102]
[99] Afu at [85].
[100] FYBR at [42].
[101] FYBR v Minister for Home Affairs [2019] FCAFC 185, [74] (Charlesworth J) citing Uelese v Minister for Immigration and Border Protection [2016] FCA 348.
[102] Ibid, [77] (Charlesworth J) and [105] (Stewart J).
Having regard to the expectation of the Australian community as stated in paragraph 13.3(1) of the Direction, the Applicant has been convicted of two offences in Australia and has therefore breached the expectation that non-citizens obey Australian laws while in Australia.
In determining the expectations of the Australian community, the Tribunal has been informed by Principle 5 of the Direction which provides:
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 for only a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
It also has been informed by Principle 7 which provides:
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 in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
The evidence before the Tribunal is that the Applicant came to Australia in April 2014 as a young man aged 18 years, and was resident in Australia for short periods of time for the following four years until his incarceration in July 2018. The evidence before the Tribunal is that the Applicant spent approximately 19 months in Australia from the date of his arrival in April 2014 until the date he was arrested and charged in July 2017. Following his arrival in April 2014, the Applicant remained in Australia for seven months and then returned to New Zealand where he remained for the following 13 months. In December 2015, the Applicant returned briefly to Australia for one month, and then went back to New Zealand where he stayed for the next seven months until August 2016. Following his return to Australia in August 2016, it was a period of only 11 months until he committed the offences for which he was imprisoned. Despite the Applicant claiming he had moved to Australia on a permanent basis, he in fact spent as much time in New Zealand (20 months) as he did in Australia (19 months) in the period April 2014 to July 2017.
During the short period of time he was resident in Australia, the Applicant worked in a few paid employment roles, including a sales job in Perth. However he also had periods of unemployment, including when he was living in Sydney from May 2017 until the date he was arrested in July 2017. There is limited evidence of the Applicant being actively involved in the Australian community for any significant period of time. The Applicant provided some letters in support from the Congolese community in Western Australia,[103] and the Christian Disciples Centre (Baptist Church Western Australia).[104] However as already noted, the Applicant has not been resident in Australia for a sufficient period of time to establish close links with the Congolese community, nor his church congregation, nor with broader the Australian community.
[103] Exhibit R1, 133.
[104] Exhibit R1, 134.

In light of the short periods of time the Applicant has been resident in Australia and the limited links he has made through his employment contribution and participation in the community and involvement in other activities, the Australian community would have a low tolerance for the Applicant’s serious criminal conduct. Having regard to paragraph 13.3(1) and Principles 5 and 7 of the Direction, the Tribunal finds that the expectation of the Australian community would be that the Applicant no longer retain the privilege of holding a visa to remain in Australia.
Having had regard to the Government’s views in relation to the expectations of the Australian community and giving them appropriate weight, and taking into account other factors relevant to the Applicant’s circumstances, the Tribunal finds that Primary Consideration C does not support the revocation of the Mandatory Visa Cancellation Decision.
Other considerations
While the Primary considerations carry particular weight, the Direction acknowledges at paragraph 14 that ‘Other considerations’ must be taken into account by the decision-maker where relevant.
The Tribunal notes that these considerations are ‘other’ considerations, as opposed to ‘secondary’ considerations. As Colvin J observed in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594at [23]:
... 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.
a) International non-refoulement obligations
The Applicant made no submissions that he engages Australia’s international non-refoulement obligations. The Tribunal has however considered his claim that he will face harm from members of the Mongrel Mob in New Zealand if returned there.
Paragraph 14.1 of the Direction provides:
(1) 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 reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2) The existence of a non-refoulement obligation does not preclude non- revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
(3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501 CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a Protection visa that was mandatorily cancelled).
(4) Where a non-citizen makes claims which may give rise to international non- refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
(5) If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class W R) visa (section 501 E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them — sections 48A and 48B of the Act refer).
(6) In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.”
The Respondent submits that if, in raising an issue about his safety if returned to New Zealand, the Applicant is claiming non-refoulement, ‘this would be appropriately dealt with in a protection visa process should the applicant wish to pursue that course of action.’[105] However, as the majority of the Full Court of the Federal Court emphasised in BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 (‘BCR16’) at [48]-[49],
… the circumstances in which consideration of non-refoulement occurs are quite different between an exercise of the revocation power in s501CA(4) and an exercise of power under s65 of the Migration Act.
… Its place in an exercise of discretionary power is quite distinct, and is capable of playing a quite different role in the exercise of the statutory discretion.
… In the process for the exercise of the s501CA(4) discretion, the Minister or his delegate is able to give greater weight to a small risk, if on the material the decision-maker reasonably determine that it is justified. Such is the nature of a discretionary power. It is quite distinct from the task in s.65.
[105] Respondent’s SFIC at [41].
In Omar v Minister for Home Affairs [2019] FCA 729, Mortimer J accepted the applicant’s argument based on the reasoning of the majority of the Full Court of the Federal Court in BCR16 above. These reasons were also adopted by Moshinsky J in DGI19 v Minister for Home Affairs [2019] FCA 1867 (14 November 2019).
On the basis of these authorities, the Tribunal has considered whether the Applicant engages Australia’s non-refoulement obligations by reason of the fears he claims he has of harm by the Mongrel Mob should he be returned to New Zealand. In undertaking this task, the Tribunal has noted that the Full Court of the Federal Court has stated that, in assessing non-refoulement obligations, the level of analysis required by the Tribunal is less than that required in assessing a claim for a protection visa. In Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 in relation to a s 501 refusal, the Court found (at [28]):
An exercise of the statutory power conferred by s 501 of the Migration Act does not require the same analysis to be undertaken as would be required if an application for a protection visa is made and s 36 is invoked. Nor is that analysis to be undertaken even where the Minister does take into account Australia’s non-refoulement obligations.
The evidence before the Tribunal in relation to the threat that may be posed to or the harm that may be inflicted on the Applicant by the Mongrel Mob if he returns to New Zealand is extremely limited. The Applicant’s former representative submitted to the Department a Wikipedia entry and a newspaper article on activities of the Mongrel Mob.[106]
[106] Exhibit R1, 154-169.
The Applicant’s evidence to the Tribunal is that he fled New Zealand in December 2015 after threats were made and crimes committed against him by members of the Mongrel Mob. He claims that a ‘bounty’ of $100,000 was put on him by the Mongrel Mob, he was ‘jumped’ when leaving a club, his house was broken into, threats were made against him via photographs and videos posted on Facebook, and he was visited at work by gang members and was forced to quit his job. He claims he was given an ‘ultimatum’ and told him to ‘never step foot in New Zealand again’ or he could ‘kiss [his] life bye bye’.[107]
[107] Transcript p14; Exhibit R1, 83.
The Applicant’s evidence is inconsistent as to the reason why he became the target of the Mongrel Mob. At the hearing, he claimed that this occurred following an argument with a work colleague in 2015, however in his statement in support of his request for revocation he claimed that he became a target after his former business partner ‘cleaned out’ their business account in 2013. The former version events was given by the Applicant to Ms Aiello, however he told her that the argument with the work colleague happened around 2013 or 2014, which was before he came to Australia. When challenged about this inconsistency under cross-examination, the Applicant stated that his former business partner and his work colleague are the same person and that they had ‘quite a few problems’.
Even if it is accepted that there was indeed a ‘bounty’ put on the Applicant by the Mongrel Mob and he was subjected to threats, assaults and damage to his property, there is no evidence that the Applicant reported these crimes to the New Zealand police. The Applicant claims that he did not complain to the authorities as they are unable to provide him with protection from all members of the Mongrel Mob. The Tribunal finds that the Applicant’s unwillingness to report to the police the threats and offences he claims he was the subject of, casts doubt on his claim that he fears harm from the Mongrel Mob if he returns to New Zealand. This finding is supported by the evidence that the Applicant returned to New Zealand one month after he claimed he fled the country in fear of his life, and spent an extended period of time there (seven months) when he claims the ‘bounty’ continued to exist against him. The Applicant has made no claims that he was threatened or otherwise harmed when he was in New Zealand from January to August 2016. The evidence before the Tribunal is that the Applicant left New Zealand and returned to Australia in August 2016 as his mother encouraged him to return home to be with his family, and he did not tell his mother of any troubles he experienced while in New Zealand.
On the basis of the limited evidence before it, the Tribunal finds that there is not a real risk that the Applicant will face persecution or other serious harm on return to New Zealand. Accordingly, the Tribunal finds that he does not engage Australia’s non-refoulement obligations under the Refugee Convention, the International Convention on Civil and Political Rights, or the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and therefore this consideration does not weigh in favour of revocation of the Mandatory Visa Cancellation Decision.
b) Strength, nature and duration of ties
Paragraph 14.2(1) of the Direction states:
1   Reflecting the principles at 6.3, decision-makers must have regard to:
a.    How long the non-citizen has resided in Australia, including whether the non-citizen has arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b.    the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Applicant has ties to Australia in that his immediate family, being his mother, father and two sisters, reside in Perth. However, whereas the Applicant claims he is close to his mother and has recently ‘patched up’ his relationship with his father, in the four years from the time he arrived in Australia until he was incarcerated, he spent very limited time living with them in Perth. As outlined above, a significant amount of this time he spent in New Zealand, and even when he was in Australia he was travelling regularly to Queensland, and spent the three months prior to his arrest, and his time in gaol and in immigration detention, in Sydney. According to his own evidence and that of his mother, since April 2014 he has lived with his family in Perth for a period of less than one year. Since his imprisonment in July 2018, his family has seen the Applicant on only one occasion when he was in gaol. The evidence before the Tribunal is that the Applicant maintains regular contact with his mother and father by phone and has done so since he has been incarcerated and they provide each other with a degree of emotional support.
By way of employment ties, the Applicant claims to have worked for about three to four months in sales and marketing in 2014, for about six months in 2014-5 in a call centre and about four to five months in another call centre between 2016-7.[108] The Applicant also worked while he was in New Zealand[109] and, as the Respondent points out, based on his travel movements, it would appear that some of the employment detailed by the Applicant relates to his time in New Zealand.[110]
[108] Exhibit R1, 73.
[109] Exhibit R1, 137-8.
[110] Respondent’s SFIC, [42].
The evidence before the Tribunal, which includes written statements from the Applicant’s mother and two sisters, indicates that they are distressed at the prospect of him being removed from Australia, and have concerns about the impact of his absence on the health of his mother.[111]
[111] Exhibit A2, 11-12 and 15-16.
On the basis of the evidence before it, the Tribunal finds that the Applicant has some ties to Australia by virtue of the length of time he has resided here and his family members, and therefore this consideration weighs in favour of revocation of the Mandatory Visa Cancellation Decision.
(c) Impact on Australian business interests
Paragraph 14.3(1) of the Direction states:
1 Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery an important service in Australia.
There is no evidence of and the Applicant does not claim that any Australian business interests would be affected by the non-revocation of the Mandatory Visa Cancellation Decision.
(d) Impact on victims
Paragraph 14.4(1) of the Direction states:
1 Impact of a decision not to revoke 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 that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
The Respondent has not submitted any evidence in relation to the impact that the Applicant’s continued presence in Australia would have on the victims of his offences. The Tribunal therefore makes no findings in relation to this consideration.
(e) Extent of impediments if removed from Australia
The Direction states in paragraph 14.5(1) that:
1The 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.
Other than the claim of his fear of return due to the bounty on him by the Mongrel Mob, the Applicant does not raise any specific impediments in relation to his return to New Zealand. He claims he would be better off in Australia as in New Zealand there are fewer opportunities and the job market is highly competitive for unskilled work.[112] However, the evidence before the Tribunal is that the Applicant has been employed for extended periods in New Zealand and in fact seemed to have found it easier to secure employment there than in Australia.
[112] Exhibit R1, 95.
The evidence before the Tribunal is that the Applicant has no relatives or family support in New Zealand. His former partner continues to reside in New Zealand and they remain in contact and may be able to provide him with a degree of support.
Having regard to paragraph 14.5(1)(a) of the Direction, the Applicant is aged 23 years and is generally in good health. The evidence before the Tribunal is that he has been diagnosed with post-traumatic stress disorder (PTSD) and that he would benefit from formal psychological therapy. He has completed a number of courses in immigration detention and has ambitions to work, play rugby and provide guidance to youth, all of which he can do in New Zealand.
Guided by paragraph 14.5(1)(b) of the Direction, the Tribunal finds that the Applicant will not face language or cultural barriers on his return. He has lived and worked in New Zealand as recently as three years ago, and he was an adult when he left there to come to live in Australia. The Applicant completed his schooling in New Zealand and, having lived there for 18 years of his life, he is familiar with the culture and way of life.
Having regard to paragraph 14.5(1)(c), the Tribunal finds that the Applicant will have the same access to government services as New Zealand citizens including health care, welfare benefits and social services. This includes access to psychological therapy which has been identified by two psychologists as of potential benefit to the Applicant to assist him with his PTSD.
On the basis of the evidence before it, and having regard to the factors in paragraph 14.5(1), the Tribunal finds that this consideration does not weigh in favour of the revocation of the Mandatory Visa Cancellation Decision.
CONCLUSION
In summary, the Tribunal finds that Primary Consideration A weighs against revocation of the Mandatory Visa Cancellation Decision. The seriousness of the offences for which the Applicant was convicted and the low risk of the Applicant reoffending in a manner that would cause harm to the Australian community are such that the protection of the Australian community is best served by the non-revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration C also weighs against the revocation of the Mandatory Visa Cancellation Decision as the expectations of the Australian community would be that the Applicant’s disregard for the law and serious criminal offending during the limited time he has been resident in Australia, are such that there is a low degree of tolerance for his behaviour and he should not continue to be granted the privilege of remaining in Australia.

In regard to the relevant Other Considerations, only the strength, nature and duration of the Applicant’s ties to Australia weighs in favour of revocation of the Mandatory Visa Cancellation Decision.
Having had regard to the relevant Primary and Other considerations in the Direction that weigh in favour and against the revocation of the Mandatory Visa Cancellation Decision, and the totality of the evidence before it, the Tribunal is not satisfied that there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.
As neither of the conditions precedent to the exercise of the discretion to revoke the cancellation of the Mandatory Visa Cancellation Decision is satisfied, the Tribunal is unable to exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The Reviewable Decision is affirmed.

I certify that the preceding 136 (one hundred and thirty -six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

...............................[SGD].........................................
Associate
Dated: 25 November 2019

Date(s) of hearing: 11 November 2019

Applicant: In person

Solicitors for the Respondent: D Watson, Australian Government Solicitor

Date(s) of hearing:	11 November 2019
Applicant:	In person
Solicitors for the Respondent:	D Watson, Australian Government Solicitor