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

[2022] AATA 1164

Mursal and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1164 (19 April 2022)

Division:GENERAL DIVISION

File Number:          2022/0708

Re:Osman Abdallah Mursal  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member R Bellamy

Date of Decision:               19 April 2022

Date of Written Reasons:      13 May 2022  

Place:Brisbane

The decision under review is affirmed

.......................[SGD].................................................
Senior Member R Bellamy

CATCHWORDS

MIGRATION – Non-revocation of mandatory cancellation of a Class XB Subclass 202 Global Special Humanitarian 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. 90 – lengthy criminal history including violent offending – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth)

CASES

Bugmy v the Queen [2013] HCA 37

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

FYBR v Minister for Home Affairs [2019] FCAFC 185

HZCP v Minister for immigration and Border Protection [2019] FCAFC 202

Minister for Home Affairs v Buadromo [2018] FCAFC 151

Mursal (Migration) [2020] AATA 5695 (21 October 2020)

SECONDARY MATERIAL

Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Senior Member R Bellamy

13 May 2022

THE ISSUE BEFORE THE TRIBUNAL

1. The Applicant is 34 years old. He was born in what is now South Sudan. In November 2006, when he was 18 years old, he moved to Australia. The most recent visa granted to him was a Class XB Subclass 202 Global Special Humanitarian visa (“visa”).[1]

   [1]     Exhibit G1, G7 page 215

2. On 28 April 2021, a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test and he was serving a full time custodial sentence.[2] On 14 May 2021, the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”).[3] On 25 January 2022 the Respondent decided not to revoke the cancellation.[4]

   [2]     Exhibit G1, G2 pages 128 to 125

   [3]     Exhibit G1, G2 pages 76 to 80.

   [4]     Exhibit G1, G2 page 16

3. The Applicant subsequently lodged an application for review in this Tribunal on 1 February 2022.[5] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.

   [5]     Exhibit G1, G1 pages 1 to 10.

4. The hearing of this application took place on 29, 30 and 31 March 2022. The Applicant gave evidence via videoconference. The Applicant’s mother, stepfather, partner and Dr Jai Nathani, Consultant Psychiatrist, gave evidence by telephone. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.

   LEGISLATIVE FRAMEWORK

5. Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:

   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.

6. I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. If either of paragraphs (i) or (ii) are satisfied, I should revoke the original decision.[6]

   [6]     Minister for Home Affairs v Buadromo [2018] FCAFC 151.

   Does the Applicant Pass the Character Test?

7. The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.

8. On 15 April 2021, the Applicant was sentenced to a term of imprisonment of 12 months with a non-parole period of five months. What matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they have actually served.[7]

   [7]     See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416.

9. Accordingly, there is no doubt that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. He cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.

   Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?

10. In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) applies.[8]

    [8]     On 1 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.

11. For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of Part 2 of the Direction.

12. Those principles may be briefly stated as follows:

    (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

    (4)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.

    (5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

13. Paragraph 6 of the Direction provides that:

    Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

14. Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account. They are:

    (1)protection of the Australian community from criminal or other serious conduct;

    (2)whether the conduct engaged in constituted family violence;

    (3)the best interests of minor children in Australia; and

    (4)expectations of the Australian community.

15. Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. They are:

    a)international non-refoulement obligations;

    b)extent of impediments if removed;

    c)impact on victims; and

    d)links to the Australian community, including:

    i)strength, nature and duration of ties to Australia; and

    ii)impact on Australian business interests

16. Paragraph 7(2) provides that the primary considerations should generally be given greater weight than the other considerations, and paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.

    BACKGROUND AND OFFENDING

17. The Applicant was born in March 1988 in what is now South Sudan. When he was an infant, his family fled to Uganda because of the conflict at home. In November 2006, when he was 18 years old, his mother and three siblings came to Australia on a Class XB Subclass 202 Global Special Humanitarian visa.   

18. While the family were in Uganda, the man the Applicant knew as his father died from complications arising from diabetes. This happened when the Applicant was around 14 years old and he quickly took up drinking alcohol. While his evidence about his alcohol consumption in Australia was inconsistent, I am satisfied that he continued to consume alcohol when he arrived in Australia although it does not appear to have been problematic initially. 

19. The Respondent provided the Tribunal with summonsed material that included records from:

    ·various courts;

    ·the New South Wales Police; and

    ·the Department of Communities and Justice (NSW) and Corrections Victoria (for convenience, collectively referred to as “Corrective Services”).

20. That material paints a picture of a person who has a long, consistent history of alcohol abuse and aggressive and violent behaviour, and who does not accept responsibility for his substance abuse and offending behaviour. In the hearing the Applicant claimed that much of the material in those records was not true. He denied having committed most of the offences of which he was found guilty. The Applicant did not discharge the heavy onus of proof required to persuade the Tribunal that the findings of guilt were incorrect and/or that the essential facts underpinning those findings were not correct.[9]    

    [9] HZCP v Minister for immigration and Border Protection [2019] FCAFC 202

21. With respect to the rest of the rest of the records that were disputed by the Applicant, the authors of those records were not available for cross examination. That does not mean I should give those records little or no weight. It would seem quite impractical and largely pointless to round up numerous police officers and Corrective Services employees, who may or may not recall the events they recorded in contemporaneous notes many years ago. The notes were made when the events were fresh in the mind of the authors. The Applicant claimed that various police or prison officers were out to get him, however his evidence about that was unconvincing and unsupported by any other evidence. There is nothing on the face of the records to suggest that they are anything but impartial accounts. In these reasons, where I refer to alleged offending or to discussions with Corrective Services, that information is taken from the police and Corrective Services file notes and facts sheets that were produced under summons.

22. Due to the Applicant disputing much of the evidence against him, it has been necessary to canvass that evidence and the Applicant’s evidence to the contrary in some detail which has taken time and resulted in lengthy written reasons.   

23. The Applicant sustained two head injuries in 2012 and 2014 respectively and he claimed to have problems with his memory as a result. I accept that.      

24. A police incident report dated 5 February 2010, when the Applicant was 21 years old, records that the police asked the Applicant his age because he was smoking, and he refused to tell them. He was warned that he could be arrested and he said “You can't tell me what to do” and threw the cigarette butt on the pavement. He was arrested for failing to move on and for littering. He said “I don't give a f--k” and “I'm not going to pay the fine anyway”. He then rode away without a bicycle helmet despite being told not to ride the bike because he did not have a helmet.[10] In the hearing the Applicant said he could not recall that incident. However, only weeks before the hearing, in March 2022, he had told Dr Jai Nathani about an incident where he was charged for throwing a cigarette on the ground when a white Australian man threw a lit cigarette on the ground close by, being annoyed by the double standard, arguing with the police, and being fined. When asked if this was the incident in the police records, the Applicant became agitated and did not give a straight answer. 

    [10]    Exhibit R2, SM4, page 266.

25. A few days later, on 8 February 2010, the Applicant struck another male while he was walking along a street. As he walked past the victim and two others, he stuck out his arm, striking him in the forehead, which made his turban partially come off. The victim grabbed the Applicant by the shirt, and the Applicant punched him in the head causing his turban to dislodge totally. The two people who were with the victim separated the Applicant from the victim. Four associates of the Applicant came running and became involved in the violence. Everyone was throwing punches. This occurred near a shopping centre and taxi rank where members of the public were present. Eight phone calls were made seeking police attendance. The Applicant and his associates left before the police arrived. The Applicant was later located, and he admitted that he had instigated the altercation and thrown punches including that he punched the victim in the head. The incident was captured on CCTV.[11] In the hearing the Applicant denied having hit the victim and said he could not recall making admissions. Rather he said the victim bumped onto him and swore at him. The Applicant was drunk at the time. He admitted to arguing and kicking the victim. He claimed the victim tried to stab him with a knife although there is no mention of that in the police records. The Applicant subsequently pleaded guilty to affray. 

    [11]    Exhibit R2, SM5, page 281.

26. On 18 February 2010, the Applicant was granted bail in relation to the above offence and another charge. A condition was that he was not to enter the Blacktown Central Business District.

27. On 25 February 2010 the police saw the Applicant walk past a taxi rank in that area. When they approached, he was instantly aggressive and yelled, “Leave me alone, I'm going home”. He was told he was under arrest, but he kept walking. The police grabbed his arm and he said “Don't f--king touch me man” and kept walking. He yelled “[You’re] not arresting me, I'm going home”.

28. An officer, “Constable T” tried to restrain the Applicant, but he violently struggled, yelling “I told you to f--k off”, and he punched Constable T in the face. He continued to struggle even when another officer got involved. In the struggle, he lifted Constable T off the ground for several seconds, and Constable T sustained an injury to his knee when they both fell to the ground. The Applicant continued to resist, and more police officers came to assist.[12]

    [12]    Exhibit R2, SM5, pages 306 to 307.

29. In the hearing the Applicant denied having punched Constable T. He said the police made it up to make him feel bad in front of the court, and that Constable T wanted to put him behind bars. According to his account, he was going home from TAFE and it was raining so he went to catch a taxi. He was not intoxicated. In relation to Constable T he said:

    “…every single time I come to Blacktown he will come around where we hang out and he start just giving me trouble. What I mean by giving me trouble he just saying things that I don't want to answer him. And then he just got used to coming at me knowing where I could be, where I was and every single time he sees me he just like to like just give me trouble, you know, and calling me names and all that…”[13]

    [13]    Transcript page 58 lines 44 to 50 and page 59 lines 1 to 2.

30. The Applicant claimed Constable T tried to tackle him and said:

    “…every single time I got arrested police must have resist arrest, assault police, all kind of stuff, all of it. And to me really I did not assault this police officer for all they been saying that I been assaulting them, I've never assault any police officer, like assault them like to really give them bruise or all that.”[14]

    [14]    Transcript page 59 lines 18 to 22.

31. He claimed more police came and hit him with bats, and that he was bashed at the police station. He said “And then they call my mother to come and have intervene (sic) from my mother.  I said to my mother, these people, they're going to bash me”.[15]   

    [15]    Transcript page 151 lines 18 to 20.

32. The Applicant ultimately pleaded guilty to offences arising from this incident. The Applicant’s mother provided written and oral evidence in this proceeding. She did not say he had ever been assaulted by the police. 

33. In early May 2010, the Applicant was interviewed for the purpose of a pre-sentence report. With respect to the affray on 8 February 2010, he was asked why he had punched the victim but did not give a reason and instead he claimed to be a peaceful man and said, “I was drunk and didn't know what I was doing”. He said he consumed alcohol on most weekends. He described his offending as having a “devastating effect” on his family. The Applicant’s mother was also interviewed. She said the Applicant denied to her than he was drinking but her friends had told her that he was, and she and the Applicant had many arguments about it, especially as he knows alcohol is against their religion.

34. In this interview the Applicant described his formative years as positive and indicated that his parents were very supportive. He said that when he was 14 years old Sudanese rebels entered Uganda, took his father and killed him. His mother told the interviewer that the Applicant’s father had been taken by the rebels and that when he tried to escape and was shot and killed. The report noted that the Applicant had become visibly upset when the abduction of his father was raised, and he was unable to discuss the issue. The interviewer interpreted that to mean he needed grief or trauma counselling.[16] However, I think the more likely explanation is that the Applicant was not recounting events that actually happened.

    [16]    Exhibit R2, SM9, page 685; pages 895 to 897.

35. Over the years, the Applicant and his mother have given differing accounts of his father’s death, with the Applicant mostly saying his father died from diabetes when he was around 14 years old and his mother saying he was abducted and killed by rebel soldiers.[17] In the hearing, I had great difficulty extracting from the Applicant’s mother how and when the Applicant’s father died. Eventually she said his biological father had been taken and killed by rebels when he was very young and that a boyfriend of hers had died from diabetes when the Applicant was older. She was defensive and agitated when asked about this subject, and the Applicant got up and left the room from which he was participating in the hearing.

    [17]    Exhibit R2, SM9, pages 750 to 752; page 803; pages 350 to 353; page 806.  

1. I am satisfied that the man the Applicant referred to as his father was a boyfriend of his mother’s whom the Applicant saw as a father, and that explains the different accounts given. However, it does not explain his claim that his father was taken by rebels when he was 14 years old. He repeated that claim when giving evidence in the hearing: he said prior to his father’s death, he was going to the city to get a driving licence and on the way, rebels ambushed the vehicles, and the male passengers were taken. His father walked barefoot in the African bush for six months and when he got released, he came home. However, when he returned, he had multiple sicknesses including diabetes, so he died. His father’s death caused depression and he started drinking unbeknown to his mother. When the Applicant’s account was challenged and he was taken to the May 2010 file note, he denied having said his father was taken by rebels and killed. When asked if he ever heard his mother say his father was abducted by rebels, he said “My father say this himself”. This is one of many examples of the Applicant giving inconsistent evidence.

2. On 5 August 2010, the Applicant was convicted of, and sentenced for, the following offences:

   ·     affray arising from the incident on 8 February 2010 - sentenced to 18 months of probation including drug and alcohol counselling;

   ·     resist officer in execution of duty on 25 February 2010 – the same sentence as above;

   ·     assault officer in execution of duty on 25 February 2010 – 75 hours of community service;

   ·     rider not wear approved bicycle helmet/fitted/fastened – no penalty: and

   ·     offences arising from the incident on 5 February 2010 including ride bicycle on footpath, deposit litter and refuse/fail to comply with direction – $100 fines for each offence. [18]

   [18]    Exhibit G1, G2, page 36.

3. On 26 August 2010, while the Applicant was on probation, he had another altercation with the police. The police approached a person who was with the Applicant near the entrance of a shopping centre. The Applicant immediately become aggressive towards Constable T, saying “Wait ‘till I see you out of uniform. You think you’re so tough”. Constable T asked the Applicant what would happen to him and the Applicant asked him where he lived and when he finished working. His associate then made a reference to a gun. Constable T warned them that it was an offence to attempt to intimidate police. They then walked away.[19] In the hearing, the Applicant denied having made the threats, and claimed that Constable T had instigated the “trouble”, antagonising him and making him angry, including telling him to go back to his country. He indicated that he thought he would not be believed because the police would all give Constable T’s version. The Applicant subsequently pleaded guilty to intimidate police in June 2011. 

   [19]    Exhibit R2, SM5, pages 359 to 361.

4. The following day the Applicant and his associate were at the same location with several more associates. As Constable T passed the group, the associate threw something that hit him. Constable T and a colleague escorted the associate to the police station. The Applicant followed despite being told not to. He was warned that he was hindering the police and he responded, “Fuck you, he's my friend”. He was warned again and directed to leave, to no avail. Constable T pushed the Applicant in the chest and the Applicant slapped his hand away. Constable T kept pushing the Applicant backwards. The Applicant then threatened him in a similar manner to the way he threatened him the day before.[20]

   [20]    Exhibit R2, SM5, pages 359 to 361.

5. In the hearing, the Applicant said he did not recall having slapped Constable T’s hand or having made threats. He said, “It's a police word against me and just to make me feel bad.”[21]

   [21]    Transcript page 63 lines 37 to 39.

6. Constable T subsequently applied for an Apprehended Personal Violence Order on the basis that he feared for his safety and the safety of his family.[22] An AVO was granted in June 2011.[23] In the hearing the Applicant claimed that Constable T was directed by a Magistrate not to approach him. However, there is no documentary or other evidence supporting that.

   [22]    Exhibit R2, SM5, pages 362 to 366; pages 384 to 386.

   [23]    Exhibit R2, SM5, pages 359 to 361.

7. On 30 December 2010 the Applicant reported to the parole service that his mother had made him leave home, saying she had had enough of his “trouble”.[24]

   [24]    Exhibit R2, SM9, page 705.

8. Between March and June 2011, the Applicant was remanded in custody on the 2010 affray charge. In June 2011 he was called up after failing to complete his community service order, and re-sentenced for affray, intimidate police officer in execution of duty and resist officer in execution of duty. On 14 July 2011, he was called-up and resentenced for the assault officer in execution of duty committed on 25 February 2010. In passing sentence, the learned Magistrate said:

   “You seriously need to adjust your attitude. You have a very very bad attitude towards the police and you are going to end up being a complete menace with respect to them if you do not change, do you understand?

   …

   Now they have got a job to do, you may not like it when they speak to you, you may not like it when they have a job to do which involves your offending. However it is their job and you have no right to punch them, you have no right to force them to the ground, it is absolutely and utterly appalling behaviour. One day you may well need the police to come to assist you and I will bet you have a different attitude then.”[25]

   [25]    Exhibit G1, G2 page 74 to 75.

9. In the hearing the Applicant said he did not recall that warning. Her Honour sentenced the Applicant to 12 months imprisonment, fully suspended. She told the Applicant that should he re-offend within the next twelve months, he would go to gaol for twelve months.[26]

   [26]    Exhibit G1, G2 page 75. 

10. In these sentencing proceedings, it was put on the Applicant’s behalf that he had taken a different direction in his life and had not consumed alcohol for “some time”.[27] In the hearing before the Tribunal, when the Applicant was pressed about how long “some time” was, he said he had not consumed alcohol for “maybe two weeks”.  

    [27]   Exhibit G1, G2, page 73.

11. Two months later, the Applicant committed more offences. On 22 September 2011, he was heard yelling “f--k” and “f--king c--t" in a public area near the Dawson Mall.[28] The Dawson Mall is surrounded by a Westfield Shopping Centre and a community centre. It is the main thoroughfare that leads to the Mt Druitt railway station and bus terminal. It is frequented by thousands of people daily and some groups use it to gather and socialise including numerous youth services and community services. It is frequently patrolled by Mt Druitt Police and the Police Transport Command.[29]

    [28]    Exhibit R2, SM5, pages 341 to 344.

    [29]    Exhibit R2, SM3, pages 95 to 97.

12. When the police approached the Applicant, he become aggressive and swore at them. He was drunk. He continued swearing and was uncooperative when the police tried to move him on. He motioned as though he was going to attack the police and he resisted attempts to restrain him. The police forced him to the ground and he violently resisted (while a co-accused interfered and attacked the police), kicking an officer in her face.

13. After being arrested, the Applicant threatened to harm one of the officers when he got out of gaol. The officer feared that the Applicant would carry out the threat given he often patrolled the area where the Applicant was arrested.[30] The Applicant was charged with use offensive language in/near public place/school, assault officer in execution of duty, resist officer in the execution of duty and intimidate police in execution of duty.

    [30]  Exhibit R2, SM5, pages 341 to 344.

14. On 28 September 2011, the Applicant gave an account of the incident to a community corrections officer. He said he was walking with friends after leaving a tavern, trying to keep them quiet so they did not attract the attention of the police. One friend put his hand on the Applicant’s shoulder, which he shook off, which got the attention of the police. The next thing he knew he was being tackled to the ground by the police and arrested. He claimed the police were overly physical, rubbed his face into the dirt, put handcuffs on him extra tight, and he was strip searched at the station for no reason. He claimed he had done nothing to provoke the police and he spoke about how the police make him angry by continually targeting him. He denied that he had sworn or assaulted anyone.[31]

    [31]  Exhibit R2, SM9, page 727.

15. Much later, in a January 2017 interview with Corrective Services, the Applicant claimed that the police “create all this mess for me” and blamed one particular police officer, which appears to have been a reference to Constable T. He further claimed he had been beaten by the police on multiple occasions.[32] In the hearing, he said:

    “...it's my words against the police words, so then if I say something I won't be believed, so I plead guilty to it and then I want just to get it over and done with it and to be left alone, that's all.

    …

    some of the stuff that they say like saying assaulting police, resisting arrest, all this, these are things that they say normally to everyone just to back up their charges and then next thing you know they really charged arrested you for - if they can't get you for that they cannot get you for what they have and that's what they did…they always do the arrest on me brutally and really assaulting me and leaving me damaged all like bruise every single time police arrest me, you know. And I never get to even say this to the court because I don't have time, I don't have time to say that.”[33]

    [32]   Exhibit R2, SM9, pages 750 to 752.

    [33]    Transcript page 69, lines to 27 to 29 and page 70 lines 6 to 20.

16. The Applicant eventually pleaded guilty to the charges. I do not accept that he did not have time to tell courts that he had been assaulted by the police. It is well accepted that the defence has an opportunity to make submissions to a sentencing court before the sentence is passed. There is evidence of this occurring in the material before me. The Applicant’s claims of police brutality are not corroborated by any other witness or independent evidence such as complaints to police or photographs of bruises or abrasions.

17. In October 2011 the Applicant was assessed for a residential rehabilitation programme. He acknowledged that he had been binge drinking every Centrelink payday and that his drinking was a problem. The assessment noted that the Applicant had been subject to a bond prohibiting him from drinking outside his home and that he was currently in custody having breached that condition. The Applicant claimed to want help to stop drinking and remain sober. He was recommended for a residential rehabilitation program run by the Salvation Army.[34] It does not appear that he ever engaged in that program. 

    [34]    Exhibit R2, SM9, page 729.

18. In June 2012, the Applicant was in the community on bail, and he told Corrective Services he was living with his mother. He indicated that he would plead not guilty to all the charges arising from the episode on 22 September 2011 except use offensive language. His next court date, in August 2012, was noted. He claimed he had not consumed alcohol for ten months and admitted that he had issues with anger management.[35]

    [35]    Exhibit R2, SM9, page 738.

19. On 12 July 2012, the Applicant told Corrective Services that he wanted to make his mother happy, so he was not drinking, and he was staying out of trouble. He claimed that the police harassed him a bit and made him angry by telling him to move on when he was not doing anything wrong.[36]

    [36]    Exhibit R2, SM9, page 739.

20. Shortly afterwards, the Applicant failed to make an appointment to see a psychologist as he was required to do, he missed several appointments with Probation and Parole, he did not respond to multiple messages left on his mobile phone, and he failed to attend court for the pending charges.[37]  He had in fact moved to Melbourne. Warrants for his arrest were issued on 20 August 2012 at Mount Druitt Local Court and 21 September 2012 at Penrith Local Court after he failed to attend each court.[38]

    [37]    Exhibit R2, SM5, 288 to 289.

    [38]    Exhibit R2, SM5, page 337.

21. In the hearing the Applicant denied having moved to avoid the charges against him. He said he forgot about them. However, that seems implausible given his contact with Corrective Services. Further, later in the hearing he said the police used to stop his brother in Sydney because they look similar and there was a warrant out for his (the Applicant’s) arrest and that he was aware of that happening when he was in Melbourne. I am satisfied that the Applicant knew there were pending charges in Sydney when he moved to Melbourne and that, while he was in Melbourne, he knew there was a warrant for his arrest. 

22. The Applicant said that when he was in Melbourne, he initially did not know anyone there or have a place to stay, and that he was homeless for a time. He linked up with the same sort of people he was trying to get away from in Sydney, and he started doing the same thing again.

23. On 31 December 2012, the Melbourne Magistrates Court issued a Full Intervention Order against the Applicant. The protected person was his ex-girlfriend, “Ms N”. The Applicant was present at court and agreed to the order without admissions. This Order included conditions regarding contact. On 30 May 2013, the Applicant texted Ms N and the next day he texted and telephoned her. He was interviewed by the police and made no comment.

24. In the hearing the Applicant denied having been violent towards Ms N. He claimed he contacted her to tell her to stop harassing him. The Applicant was convicted and fined $250. There is no evidence to the contrary, I am prepared to accept the Applicant’s evidence about this. 

25. On 20 June 2013 the Applicant was convicted of theft, state false name when requested and fail to answer bail. He was sentenced to perform 150 hours of community service.

26. On 22 November 2013 the Applicant was convicted of “w/o auth/excuse enter private place” and sentenced to 20 days imprisonment.

27. On 21 October 2014 the Applicant was convicted and given fines for:

    -fail to answer bail;

    -“contra-fam violence final intervent ordr”;

    -theft from shop (shopsteal);

    -commit indictable offence while on bail, fail to answer bail (x2), theft from shop (shopsteal), and state false name when requested; and

    -theft from shop (shopsteal).

28. The Applicant was also convicted of contravene community corrections order and not punished, use threatening words in public place and sentenced to 14 days imprisonment, and intentionally damage property and sentenced to 30 days imprisonment. All sentences were concurrent.    

29. I do not have details of this offending before me and in the hearing the Applicant claimed not to recall any of it. 

30. On 13 April 2015 a charge of theft from shop (shopsteal) was found proven against the Applicant and dismissed, meaning he was not punished. 

31. On 26 December 2014, the Applicant was involved in a robbery. He was arrested on 9 January 2015 and remanded in custody. Corrective Services records indicate that on 3 May 2015 the Applicant sustained an injury to his eye while in custody. He initially said he had spilt coffee on his eye overnight.[39] However, he later claims, and I accept, that another inmate poured hot coffee on his face. 

    [39]    Exhibit R2, SM8, page 561.

32. On 22 May 2015, the Applicant was convicted of robbery and sentenced to imprisonment for six months and 150 hours of community service. The Applicant admitted to the facts alleged by the Crown and which were accepted by the learned sentencing Magistrate. There was also CCTV footage of the robbery. The Applicant and three other males robbed the victim, a pedestrian, in the street late at night. They took his mobile phone, bag, and wallet. A co-accused produced a knife, but the victim was not physically injured. All the victim’s property was recovered. The Applicant played a lesser role than the others and he tried to retrieve the victim's passport. He also apologised to the victim at the scene. When the Applicant was found guilty of this offence, the learned Magistrate accepted that he had shown remorse at an early stage.

33. In the hearing, the Applicant claimed that he was out with three friends he had just met that day, and he dropped behind to talk to some girls. He saw someone ahead being attacked, ran to them, and saw the victim had been robbed. He realised the perpetrators were the three friends, and he tried to get the victim’s property back. As the Applicant was convicted of robbery and the agreed facts state that he participated in the robbery, I do not accept that he was not involved in the robbery. 

34. In passing sentence, His Honour took into account that the Applicant had a history of hardship of “the most extreme kind”, that he had been exposed to brutality and trauma, and he had witnessed people being murdered by rebels before coming to Australia. His Honour further noted that the Applicant had sustained a head injury due to having been punched and kicked on 22 August 2014 and that he had suffered an earlier head injury from an assault in 2012. He found that those matters, being the Applicant’s traumatic history and his head injuries, lessened his moral culpability.

35. I note that in 2010 the Applicant described his formative years to Community Corrections as positive and in March 2022 he told Dr Nathani that violence was prevalent in the refugee camp but not at their home, and that he lived a peaceful and harmonious life with his parents and siblings until his father died when he was 14 years old.[40] There is no evidence before me to corroborate that the Applicant witnessed people being killed by rebels. It appears that His Honour was mistaken about the extent of hardship and trauma in the Applicant’s background. This undermines his observation that the Applicant’s moral culpability was lessened. I also note that the Applicant had committed offences before the first head injury.   

    [40]    Exhibit A6 page 9.

36. His Honour noted two psychiatric reports (which are not before the Tribunal) that indicated that the Applicant’s cognitive function was reduced by organic and psychological factors, and that the Applicant had Alcohol Use Disorder and an adjustment disorder with depressed mood. His Honour though the Applicant had “prospects of rehabilitation…guarded though they may be” and noted that he had been assessed as a high risk of re-offending.

37. On 30 June 2015 the Applicant’s visa was cancelled under s501(3A) of the Act and he was subsequently taken into immigration detention.[41]

    [41]    Exhibit G1, G2, pages 139 to 143.

38. An International Health and Medical Service (“IHMS”) record dated 11 July 2015 indicates that the Applicant presented as distressed and frustrated. He said he was released from prison that morning, ready to start a new life, without realising he would be placed in immigration detention and possibly deported. He phoned his mother to tell her, and she said “Good, I hope they deport you”. He reported not having had a good relationship with his mother for a number of years. He also stated that his step-father hated him and made his life miserable.[42] In the hearing the Applicant said his mother only made that comment because she was angry with him.

    [42]    Exhibit R2, SM6, page 398.

39. In the hearing the applicant said his mother only made that comment because she was angry with him. His mother denied having said that, claiming she said “Don’t call me. I’m trying. Police will catch me. I’m driving. Don’t call me again.” [43]   When she was asked if they had not had a very good relationship for a few years at that time, she said she did not want the applicant to move to Melbourne but he did not listen to her, rather he listened to friends. For nearly two years he did not contact her but he contacted her when he was in Christmas Island.   

    [43]   Transcript, page 206, lines 42 to 46.

1. The Applicant made representations to the Department seeking revocation of the cancellation of his visa.[44] On 15 April 2016 the department revoked the cancellation. The letter notifying the Applicant contained the warning:

   “Please note: the decision to revoke the original decision does not mean that you cannot be reconsidered for cancellation on character grounds in the future in the event of further criminal offending by you.”[45]

   (Emphasis in original)

   [44]    Exhibit G1, G2, pages 139 to 143.

   [45]    Exhibit G1, G2, pages 144 to 145.

2. The Applicant signed an acknowledgement that he received the notice.[46] In the hearing he acknowledged that he knew his visa could be cancelled at any time. He also said that he believed at that time that if he returned to South Sudan, he would be homeless and that he would suffer and die. He recalled saying in his revocation request then that he would like to do rehabilitation.  

   [46]    Exhibit G1, G2, page 147.

3. The Applicant was released from immigration detention. He briefly returned to live with his mother in Sydney, went back to Melbourne for two and a half months, then returned to Sydney. At that time, he had pending charges in Victoria, being theft from shop (shopsteal), unlawful assault (x2) and recklessly cause injury. He has never faced those charges. In the hearing he denied having moved back to Sydney to avoid facing those charges, claiming that he did not know about the charges and he said he did not recall them because of his head injury. I think it most unlikely that the Applicant was unaware of charges pending against him and I do not accept it.    

4. On 21 September 2016, the Applicant was convicted of being drunk in a public place.[47]

   [47]    Exhibit G1, G2, page 35.

5. On 7 December 2016 the Applicant came to the attention of the New South Wales police as a victim of an assault. The police discovered that there were outstanding warrants for his arrest. The police facts sheet relating to this includes that the Applicant had $20,000 worth of unpaid fines.[48] He was remanded in custody.

   [48]    Exhibit R2, SM5, page 347.

6. I asked the Applicant what the unpaid fines related to and he said he travelled without a valid ticket or failed to carry his concession card. He does not know how much he owes now.  

7. In December 2016, according to the Applicant, a person splashed his eye with hot water and washing detergent during a fight.[49]

   [49]    Exhibit R2, SM9, pages 750 to 752.

8. On 4 January 2017, Corrective Services conducted a home visit at the Applicant’s mother’s home to assess its suitability for the Applicant to live there when released. His mother and two sisters were present. His mother’s long-term partner, “Mr K” was also present. The notes of the home visit include that the family asked for the Applicant to be subject to a curfew and some other conditions. The Applicant’s mother said they were fed up with his behaviour and would not tolerate any deviance from her conditions which included that the Applicant only have access to her home at reasonable hours and that he not associate with negative peers and roam the streets.[50] According to Mr K’s evidence in the hearing, the Applicant never accepted those conditions.

   [50]    Exhibit R2, SM9, page 748.

9. On 29 January 2017, Mr K wrote a letter to the court ahead of the Applicant being sentenced for the offending in 2011. He asked that any custodial sentence be less than 12 months because a sentence of 12 months or more would trigger cancellation of the Applicant’s visa which would have psychologically deleterious effects on his mother and siblings. He added that there was a civil war in South Sudan with no end in sight, so the Applicant would waste away indefinitely on Christmas Island. Mr K also said the offences for which the Applicant was appearing were committed five years ago and that since then he had matured and would fulfil community service orders. He noted that the Applicant’s father had died before his family left Africa and therefore, he had not had a mature male role model in his formative years. Mr K said he believed he was in a position to fulfil that role.[51]

   [51]    Exhibit R2, SM5, pages 354 to 355.

10. The following day the Applicant, who was on remand, was assessed for an Intensive Correction Order (“ICO”). The report of the interview noted that the Applicant presented as blasé, would not provide details about his partner or step-father and he contradicted himself on occasions. He denied that his relationship with his mother was strained, he reported good relationships with his siblings and claimed to have a great relationship with Mr K although he did not know Mr K’s surname or if he lived with his mother. He said every time he gets a job, he does not attend due to his alcohol use. He denied he had any friends or associates involved in criminal activity but later admitted his friends supplied him with cannabis. He admitted he had consumed alcohol on a daily basis for years, and that he experienced hangovers and blackouts. He reported having used cannabis since he was 23 or 24 years old. He initially said he did not want to go to residential rehabilitation but later agreed if refusal would mean he would not be suitable for an ICO. He denied any mental health concerns such as depression or insomnia.[52]

    [52]    Exhibit R2, SM9, pages 750 to 752.

11. The resulting report, dated 1 February 2017, stated that the Applicant had been asked to leave the family home on several occasions, which appeared to relate to his alcohol use which conflicted with his mother’s religious beliefs. However, the Applicant’s mother confirmed her ongoing support of him and her willingness to continue to accommodate him. She said he had never maintained employment.[53] In the hearing the Applicant denied any recollection of having been asked to leave his mother’s home.

    [53]    Exhibit R2, SM5, pages 350 to 353.

12. The Applicant was assessed as having a high risk of re-offending according to the Level of Service Inventory – Revised (“LSI-R”), which is an actuarial risk/needs assessment tool. It was noted that the Applicant had a history of non-compliance with community supervision, and he did not appear to have successfully completed a period of supervision. He was assessed as unsuitable for an Intensive Correction Order.[54]

    [54]    Exhibit R2, SM5, pages 350 to 353.

13. On 14 February 2017 the Applicant was convicted of, and sentenced for, the following offences as follows:

    ·assault officer in execution of duty - imprisonment for two months and one week backdated to 9 December 2016 and concluding on 15 February 2017;

    ·intimidate police officer in execution of duty - same penalty as above;

    ·resist officer in execution of duty - bond with supervision by the probation service for two years;

    ·fail to appear in accordance with bail undertaking, and use offensive language in/near public place/school - conviction without any further penalty; and

    ·resist officer in execution of duty - two-year good behaviour bond under the supervision of the probation service.

14. On 7 March 2017 the Applicant told Corrective Services that he had gone on a three day alcohol binge after being released from custody.[55] On 19 April 2017, the Applicant was referred to participate in the EQUIPS Foundation program. However, due to his failure to attend as directed, he was withdrawn from the program in May 2017.

    [55]    Exhibit R2, SM9, page 758.

15. On 22 June 2017 the Applicant became involved in a heated argument with an unknown female in a shopping precinct, forcibly grabbing a cask wine sack belonging to her and pushing her away with his elbow. A male, the victim, intervened and the Applicant threw a punch which the victim blocked. The police arrived and separated the two. The Applicant kept trying to get to the victim, swearing at him and trying to provoke him into fighting. The police gently took the Applicant to the ground. He resisted being handcuffed, refused to give his name and address, and swore at them. He went limp to make it hard for the police to put him into the police van. He kicked an officer in the arm, leg and face.[56]

    [56]    Exhibit R2, SM3, pages 167 to 168.

16. In the hearing the Applicant claimed the police say things against him to make him feel bad. He said the police were dragging him and the handcuffs were cutting his wrist. He denied any recollection of kicking police.

17. The Applicant was referred to a community based alcohol and drug intervention service, but he only attended on four occasions. From early July 2017 he made no further efforts to engage.

18. On 21 July 2017, the Applicant shoplifted a kitchen knife, approximately 30cm long, from Woolworths. He went to a bus terminal and, holding the knife by his side, and accused a woman of stealing his jacket. There were around twenty people in close proximity to the Applicant with another thirty at the terminal. An argument ensured with the Applicant and others. The police attended, drew their firearms, and told the Applicant to put the knife down. The Applicant put the knife up the sleeve of his jumper and argued with the police. The police tasered the Applicant and arrested him. Inside the police vehicle the Applicant was aggressive, yelling and lashing out. He was not offered an interview due to his intoxication.[57]

    [57]    Exhibit R2, SM4, page 235.

19. In the hearing the Applicant claimed the woman and others stole from him and one of them hit him on the head. He said the knife was to scare people away and to get his property back. He told that to the police, but they arrested him. He claimed that he did not steal the knife, but rather he found it.[58]

    [58]    Transcript page 89 lines 11 to 14.

20. On 25 July 2017 the Applicant was directed by Community Corrections to re-engage with a counsellor on a regular basis to address his cannabis and alcohol issues.[59] A note dated 15 August 2017 stated that he had failed to engage as directed.[60]

    [59]    Exhibit R2, SM9, page 783.

    [60]   Exhibit R2, SM9, page 76.

21. A pre-sentence report in relation to the incident noted that the Applicant attempted to apportion blame to the victims, claiming they had stolen his property. When discussing alternatives to his actions he said prior attempts to involve the police had been unsuccessful. He demonstrated little insight into how his ongoing alcohol and illicit drug use continue to negatively influence on his behaviour. He was unable to explain his failure to engage with Community Corrections. He was assessed as unsuitable for a community based order.[61]

    [61]    Exhibit R2, SM3, pages 169 to 170.

22. On 23 November 2017 the Applicant was convicted of, and sentenced for, the following offences as follows:

    ·resist officer in execution of duty (re-sentenced) - imprisonment for one month;

    ·wield knife in a public place - imprisonment for eight months with a non-parole period of six months;

    ·custody of knife in public place - imprisonment for two months;

    ·larceny - imprisonment for one month;

    ·possess prohibited drug - conviction without penalty;

    ·common assault - imprisonment for one month; and

    ·assault officer in execution of duty - imprisonment for eight months with a non-parole period of six months.

23. On 18 December 2017, while the Applicant was in gaol, he was verbally abusive to a nurse and a prison officer. The nurse was distributing pills when the Applicant yelled to her, demanding cream for a rash he had. The nurse explained that he was asked to come to the clinic before lock-in but failed to do so. He became irate and said, “You cant do your f--king job”. The officer told the Applicant that the nurse was unable to do anything at the time and that he should see the nursing staff in the morning. The Applicant made threats against both and called them “dogs”.[62]

    [62]    Exhibit R2, SM9, pages 643 and 791.

24. In the hearing the Applicant said the officer was swearing at him and calling him names, and that the nurse had a bad attitude towards him. He denied having sworn. He claimed the nurse and officer made up the allegations to make him look bad. A charge of intimidation was recorded against the Applicant.

25. A Corrective Services records dated 26 April 2018 stated that the Applicant had reported having held occasional work in factories, but said he found work “stressful”, and he had been in receipt of Newstart Allowance for most of his adult life. He also said all his friends are generally in trouble with the police. While he acknowledged drinking too much, he could not see a link between his drinking and his offending. He said one of the victims of the most recent offences was an intimate partner. He spoke of the victims with contempt, and said they were to blame, commenting that “They could see the rage in my face - so why didn't they stop?”. He indicated that if he saw the victims on the outside, they should “hang their heads in shame” and if they did not, he would likely react violently towards them.[63] In the hearing said he could not recall the comment about the rage in his face and he must not have been in the right state of mind to have said that. He said he would not say work is stressful now as he has a son to look after.  

    [63]    Exhibit R2, SM9, page 803.

26. A ICO assessment report dated 28 May 2018 noted that the Applicant often demonstrated a poor attitude toward staff and the correctional centre routine. He was assessed to have a high risk of re-offending according to the LSI-R. The report noted that the Applicant had not undertaken any meaningful intervention in relation to his alcohol dependency. He was assessed as unsuitable for an ICO order due to his unresolved alcohol dependency.[64]

    [64]    Exhibit R2, SM3, pages 138 to 141. 

27. An updated ICO assessment report dated 20 June 2018 indicated that two residential rehabilitation facilities had declined to admit the Applicant because of his violent offending.[65]

    [65]    Exhibit R2, SM3, page 142.

28. On 16 July 2018, the Applicant was dealt with for assault occasioning actual bodily harm and breaking a window in November 2017. In passing sentence, the learned Acting Magistrate commented that:

    “…unless there is some intervention, [the Applicant is] just going to come out and then go straight back in again, the community will never be safe.”[66]

    [66]    Exhibit G1, G2 page 56.

29. In response to a submission that the Applicant had been in custody for quite some time, Her Honour said:

    “That’s about as long as the community can get respite from him until he commits another offence.”[67]

    [67]    Exhibit G1, G2 page 56.

30. After sentencing the Applicant to a 12 month good behaviour bond, Her Honour told him:

    “…if you breach any of the conditions or if you commit any more offences or if you do not comply with the supervision by Community Corrections, and that includes if you do not undertake any rehab that you are supposed to go through, then that will be a breach of your bond and you will be back in to serve that 12 months in custody. So this is a chance for you to come into the community. But only if you do exactly what they tell you and you really behave yourself. And if you get convicted of any other offences, I do not know what is ever going to help you. You understand?”

31. The Applicant answered, “Yes your Honour”.[68]

    [68]    Exhibit G1, G2 page 64.

32. On 7 August 2018 the Applicant was interviewed by Corrective Services. He claimed he had not consumed alcohol for nine months and he was avoiding all his old friends who he thought were not real friends anyway, saying one of them went with his girlfriend. He said he was never serious before about stopping drinking alcohol, avoiding his mates and reporting to parole. He said he wanted to change himself and it was time for him to get on with his life.[69] In the hearing, when this record was read to him, he said:

    “I have so many times of changing my life all the time. But every time something happened, that plan goes away and I end up getting into trouble and more shit that I could not even deal with. I really have chosen to change my life those days, yes.”[70]

    [69]    Exhibit R2, SM9, page 811.

    [70]    Transcript page 139 lines 44 to 47.

33. Police records indicate that on 22 October 2018, the applicant and his mother were engaged in a verbal argument, with her trying to get him to leave her home. As a result, she called the police and told them she no longer wanted him there causing unnecessary drama.[71] The applicant claimed to have no recollection of his mother ever calling the police on him. His mother also denied that she ever called the police on him, although when this record was put to her and she was asked if she recalled a time when she was trying to get the Applicant to move out, she said “Yes, I tried to say that because he came late at home”.[72] 

    [71]   Exhibit R2, SM4, page 229.

    [72]   Transcript, page 206, lines 17 to 20. 

34. The Applicant attended three sessions with a psychologist, Ms Dot Newland, in September and October 2018. She thought he suffered from mild depression, extremely severe anxiety and moderate stress.[73]

    [73]    Exhibit G1, G2 page 107.

35. The Applicant commenced a relationship with “Ms T” in late 2018. On 2 January 2019 the Applicant attended a review with Corrective Services. He said his main priority was getting a job and he wanted to build a good relationship with Ms T.[74]

    [74]    Exhibit R2, SM9, page 822.

36. In another review on 13 February 2019, Ms T also attended. The Applicant had attended an EQUIPS foundation session and he intended to attend more. Ms T indicated that she had seen a big improvement in his behaviour, and she had no concerns.[75]

    [75]    Exhibit R2, SM9, page 827.

37. On 3 March 2019, the Applicant was among around 10 people who were involved in a fight in front of a public library. The police attended and the Applicant and some others ran to the bus interchange. There was yelling and screaming. The Applicant was seen smoking next to a “No Smoking” sign. When the police told him he could not smoke there, he became aggressive and abusive. He then abused a female seated nearby. He continued to be aggressive despite being told several times to settle down. As he was intoxicated the police did not let him board a bus and said they would take him home. He refused to go with the police and tried to board a bus. He was arrested and taken to his mother’s home. She said she did not want him there due to his bad behaviour and disrespect to his new partner. She said he was kicked out of her house 12 months ago and she had no knowledge about whom he associated with. Eventually he was taken to Ms T’s home after telling the police he lived with her.[76]

    [76]    Exhibit R2, SM4, pages 226 and 227.

38. On 22 May 2019 the Applicant reported to Corrective Services that he and Ms T were living with her parents in the granny flat at the back of their home, but they were looking for their own place.[77] According to the evidence of Ms T, her mother and the applicant, which did not all line up, Ms T and the applicant were living with her parents for between six and 12 months. They moved into their own place in June 2019.[78]

    [77]    Exhibit R2, SM9, page 833.

    [78]   Transcript, page 158, lines 39 to 40.

39. On 16 July 2019 the Applicant made a comment about a person’s cousin and the person “Mr M” told him to go away. They argued and then the Applicant attempted to grab Mr M several times by the shirt with Mr M continuously pushing the Applicant away. They then threw several punches at each other. The Applicant grabbed Mr M on the back of the neck and punched him in the face several times. Members of the public separated them. Mr M went to a hotel to wash his face, then later attended his friend’s shop in Dawson Mall where the Applicant approached him and threatened him in an aggressive manner. When the police arrived, they saw them both yelling at each other, being held back by members of the public. They took to the ground due to his level of agitation and aggression. Mr M approached and kicked the Applicant in the face. Both were too intoxicated to be interviewed. Both were charged and the Applicant was granted bail. Mr M sustained lacerations to his nose and was bleeding from his eye socket.[79]

    [79]    Exhibit R2, SM3, pages 49 and 50.

1. The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. No weight can be allocated under paragraph 9.4.2 of the Direction. 

   Conclusion: Other Consideration (d)

2. Overall, I am satisfied that the Applicant’s links to the Australian community weighs moderately in favour of revocation.

   CONCLUSION

3. I am now required to weigh all of the Considerations in accordance with the Direction. Primary Considerations 1 and 4 each weigh heavily against revoking the cancellation of the Applicant’s visa. Those considerations combined outweigh the considerations that favour revocation. Applying the Direction, there is not another reason to revoke the mandatory cancellation of the Applicant’s visa.      

   DECISION

4. The decision under review is affirmed.

I certify that the preceding 259 (two hundred and fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Bellamy

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

Associate

Dated: 13 May 2022

Date of hearing:

29, 30 and 31 March 2022

Solicitor for the Applicant:

Mr Fardin Nikjoo

Nikjoo Lawyers

Solicitor for the Respondent

Mr Tal Aviram

Clayton Utz

ANNEXURE A – EXHIBIT LIST

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1 to G8 paged 1 to 216)	R	-	11 February 2022
A1	Applicant's Statement of Facts, Issues and Contentions (paged 1 to 21)	A	4 March 2022	4 March 2022
A2	Statement of the Applicant (5 pages)	A	23 March 2022	23 March 2022
A3	Statement of the Applicant’s Mother (undated) (2 pages)	A	-	23 March 2022
A4	Statement of Mr K (undated) (2 pages)	A	-	23 March 2022
A5	Statement of Ms T (undated) (4 pages)	A	-	23 March 2022
A6	Medico-Legal Report of Dr Jai Nathani, Consultant Psychiatrist (paged 1 to 35)	A	22 March 2022	23 March 2022
R1	Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 24)	R	16 March 2022	16 March 2022
R2	Respondent’s Summonsed Material (SM1 to SM9, paged 1 to 1166)	R	-	16 March 2022