NHWY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2022] AATA 2439

NHWY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2439 (22 February 2022)
AppID:  NHWY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
MatterType:   Migration
Division:GENERAL DIVISION
File Number:          2021/9540
Re:NHWY
APPLICANT

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

DECISION
Tribunal:Member Rebecca Bellamy
Date of Decision: 22 February 2022
Date of Written Reasons: 7 March 2022
Place:Brisbane

The decision under review is affirmed
...........................[SGD].............................................
Member Rebecca Bellamy
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class XB Subclass 200 Refugee 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 – serious violent offending – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Home Affairs v Omar [2019] FCA 279.
STZS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1140
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
Member Rebecca Bellamy
7 March 2022
THE ISSUE BEFORE THE TRIBUNAL

The Applicant moved to Australia in May 2015. The most recent visa granted to him was a Class XB Subclass 200 Refugee visa (“visa”).[1]
[1] Exhibit G1, G29, page 187.
On 4 May 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 28 May 2021, the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”).[3] On 30 November 2021, the Respondent decided not to revoke the cancellation.[4]
[2] Exhibit G1, G30, pages188 to 196.
[3] Exhibit G1, G17, pages 74 to 77.
[4] Exhibit G1, G4, page 13.
The Applicant subsequently lodged an application for review in this Tribunal on 7 December 2021.[5] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
[5] Exhibit G1, G2, pages 3 to 8.
The hearing of this application took place on 8 and 9 February 2022. The Applicant gave evidence via videoconference. His sister, two friends and a Ms Lesley Welsh, social worker/counsellor, gave evidence by videoconference. Dr Gavan Palk, forensic psychologist gave evidence by telephone. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
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.
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?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 5 March 2021, the Applicant was sentenced to concurrent terms of imprisonment with a head sentence of 15 months imprisonment, with a non-parole period of three 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] 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.
[7] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416.
Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 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.
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.
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.
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.
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.
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
I note that 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
The Applicant was born in a refugee camp in Kenya. His parents had travelled there from Ethiopia in around 2000. According to his father, the Ethiopian government had accused him of supporting the Oromo Liberation Front (“OLF”), detained him and beaten him. His brother was also detained and beaten to death. He fled, and some of his children joined him later in around 2003.[9] One of those children was “Ms S”, his daughter with a previous wife. That wife remained in Ethiopia with Ms S’s siblings.
[9] Exhibit G1, G18, page 80
There is some uncertainty about when the Applicant was born. A travel document authorising the Applicant’s travel to Australia in 2015 states that he was born in Ethiopia in 1999.[10] However, he and Ms S claim that he was more likely born in Kenya in 2001, and the weight of the evidence supports that. I accept that he was born in Kenya in 2001.
[10] Exhibit G1, G27, page 100.
The Applicant’s parents had three more children together in the refugee camp. When he was around four years old his parents broke up and his mother left with his three younger siblings. Ms S, who was around 15 years old at the time, became the Applicant’s primary carer, and she has been like a mother to him ever since.[11] The Applicant did not see his mother again and she now lives in Canada. His father remarried a lady who already had a child younger than the Applicant. His father and his new wife then had four more children.[12] At times Ms S and the Applicant lived with a family known to their father in Nairobi for several months at a time and attend school there.
[11] Exhibit A2 pages 2 to 7.
[12] Exhibit A2 page 1
According to the Applicant, people of his tribe, the Oromo, had their own community in the camp, like a suburb. He did not think they were treated differently. Some people called out “Oromo Oromo” but he did not take it personally. He recalled that it was important to stand up for one’s self to avoid being seen as weak and being bullied.[13]
[13] Exhibit A2, page 3.
In May 2015, the Applicant, his father and stepmother, an adopted brother, Ms S and his step-mother’s children moved to Australia.
The relationship between the Applicant and his stepmother deteriorated in Australia. He complains that he got in trouble for being late home from school and his stepmother did not want to cook for him, but she made food for her own children. He said she wanted him to leave the family home in around January 2016.[14] Ms S felt that their father put her and the Applicant aside for his new family.[15] Knowing the Applicant was too young to look after himself, Ms S moved out with the Applicant and looked after him. The Applicant lived with Ms S until he was incarcerated. During that time Ms S had three children to a “Mr S”. The children were born in August 2016, June 2018 and December 2019, respectively. Ms S had a fourth child, also to Mr S, while the Applicant was incarcerated.[16]
[14] Exhibit A2, page 1.
[15] Exhibit A2, page 9.
[16] Exhibit A2, page 2.
The Applicant’s earliest recorded offence was failure to appear in accordance with a bail undertaking in June 2018. That bail undertaking must have related to a charge but there is not any evidence before me of a charge against the Applicant at that time.
In July 2018, the Applicant was charged with failing to stop a motor vehicle. His account is that he was unlicenced and had a learner’s permit. He did not have a fully licenced driver in the car, nor was he displaying L plates. He did not stop because he believed the police wanted to check his license.[17] He knew he was doing the wrong thing by not stopping.[18]
[17] Transcript, page 25.
[18] Transcript, page 26, lines 1 to 3.
The Applicant was sentenced as a juvenile for these offences, on the basis his date of birth being in 2001. Accordingly, he appeared in the Richlands Children’s Court on 17 October 2018 where he received a reprimand for the failure to appear and, for the failure to stop, he was placed on a good behaviour bond for six months and he was disqualified from having a license for two years.
On 4 July 2019, the Applicant obstructed a police officer and was not further punished when dealt with by the Magistrate’s Court on 22 August 2018. A day later the Applicant was found in possession of suspected stolen goods. Whether he was born in 1999 or 2001 he would have been an adult at the time of this offence. For reasons unknown he was dealt with by the Southport Children’s Court on 16 December 2019 and reprimanded.
The Applicant could not recall what the possession of suspected stolen goods related to. He thought the obstruct police offence related to him running away from the police when they approached him and his friends. He thought the police were looking for one of his friends.[19]
[19] Transcript, page 20, line 44 to page 21, line 5.
On 1 January 2020 the Applicant committed a common assault against a victim who was unknown to him. The facts of this offence were set out by the police in a sentencing schedule that was provided to the sentencing court.[20] According to that document, at 1.30am on 1 January 2020 the victim and his friends were attempting to hail a taxi after exiting a pub in Brisbane city. While walking towards an intersection the victim pointed to a moving taxi. The Applicant and a friend, who were crossing the street at the time, approached the victim believing he had pointed at them. The Applicant challenged the victim, believing that the pointing may have been an attempt to entice a fight. A heated verbal argument ensued. The Applicant grabbed the victim by the collar of his shirt and punched him in the face. One of the victim’s friends tried to help the victim and was struck by the Applicant’s friend. The Applicant and his friend ran away as they heard police sirens, with the Applicant later being located by police nearby. The Applicant was charged with common assault and released on bail.
[20] Exhibit A2, page 49.
In a written statement, the Applicant said he had been drinking alcohol, mixing drinks, and that he was unaccustomed to drinking. He maintained that he was pushed, and he responded with a punch.[21] However, the prosecution facts do not mention a push. Nor did the learned Magistrate when she sentenced the Applicant. In fact, she indicated the opposite, stating:
“A heated verbal argument ensued, where he – you grabbed [the victim] on the collar of his shirt and then, using the same hand to pull out and punch, punched him in the face...So (sic) unnecessary act of violence to a person catching a taxi on that day.”[22]
(Underlining added)
[21] Exhibit A2.
[22] Exhibit G1, G7, page 39.
The undisputed facts are that the victim was pointing at a taxi, not the Applicant, and that the Applicant approached him. He was the aggressor. The only evidence that the Applicant was pushed is the Applicant’s word. I am not satisfied that the Applicant was pushed.
Two months later, while on bail, on 18 March 2020, the Applicant committed a second obstruct police offence and was fined $1,500 in June 2020. The Applicant does not recall the details of that offence.
On 8 August 2020, again, while on bail, the Applicant verbally abused a police officer. According to him, he was with a group of friends at the park at night. The police told them to move on. They had moved on and were leaving the park when one of the police officers said to “Git! Git on home!” He thought it sounded very disrespectful. One of his friends yelled out “What can’t black people even have a BBQ?” The Applicant called the police officer a “dog” and a “f--king dog”. He was charged with public nuisance.
The Applicant said he thought he and his friends were being treated unfairly. He claimed that what he meant by “dog” was someone who blocks a person from doing what they want to do, that he was not trying to threaten the officer and he was not angry or aggressive. He did not explain why he inserted the word “f--cking” in front of “dog” if he was not angry or aggressive.[23] To call a police officer a “dog” followed by “f--king dog” is inherently aggressive. Accordingly, the Applicant was verbally aggressive, and offensive, on that occasion.
[23] Exhibit A2.
On 12 September 2020 the Applicant committed a serious assault against a victim who was unknown to him. The facts of this offence were set out by the learned sentencing Magistrate in her remarks:[24]
The victim himself…was a young man – he was only 21 at the time, and he was trying to enter an Uber which was parked over the side of the road – Charlotte Street and Albert Street – in the morning, at 4.25 am on Saturday the 12^th of September. Now, he said two unrelated people, not known to him were driving past on scooters and he called out to his friend, “Are they riding these scooters?” And the victim’s friend was standing approximately 15 metres away and he said it very loudly. Shortly after, you and a co-offender approached [the victim] on foot while he was attempting to enter the vehicle. So he’s going away from whatever is happening. And the – one of the people that was with says – said to him, “Have you got a fucking problem?” And an associate of [the victim] was attempting to hold the co-offender back. And then he’s closed the door and then he’s going away – he’s getting out of the situation, okay.
And then while he was closing the door, you’ve walked past the co-offender and raised up your fist and then the victim has also raised up his fist in attempt to defend himself. You’ve then approached the victim and punched him in the left side of the face using a closed fist. And then he’s tried to punch you using his right fist to attempt to defend himself. The punch has caused [you] to fall backwards onto the ground while the co-offender began punching him. This has caused the victim to fall to the ground while the co-offender’s continued to punch the victim as he has gotten back to his feet. Once back to his feet, [you have] again approached the victim and you’ve punched him again – twice more, once with each fist. And the co-offender’s continued to punch at the victim, and the victim’s attempted to punch back. At this stage, the two attackers are yourself and your friend.
At the time, the victim’s friend has again intervened, and attempted to place himself between the victim, yourself and your friend, and this stopped the punches being thrown for several seconds, before you and your other offender began punching him in the head, face and body, repeatedly. [You] and co-offender [have] been joined, then, by two other co-offenders, who began punching the victim repeatedly while he was punched back – while he was punching back at this stage, by five other men. The victim’s friend and a passing taxi driver had continued to try to step in to stop the offenders from punching the victim. So other people have tried to tell you to back off, all right, but this has continued for several seconds, and the [victim] has been punched multiple times in the head and face. The fifth offender has then arrived on the scene. So at this stage, there’s five blokes against one.”
[24] Exhibit G1, G7 pages 39 to 40.

The next remark by Her Honour states that the Applicant delivered a coward punch to the back of the victim’s head, causing him to fall face first onto a concrete wall. However, it appears that she misspoke as the prosecution statement of facts that was provided to the court states that it was a co-accused who did that. The remarks continue:
“The victim was (sic) then managed to back away from you several metres, while this friend has positioned himself between, at this stage, five assailants.
The victim has then been approached from behind by a sixth assailant who has coward-punched the victim in the back of the head, which caused the victim to lose his footing and fall to the ground against the wall of the Sebel Hotel. All six offenders, including you, have then begun punching and kicking the victim while he lay on the ground. During this time, one of the offenders, unknown which, has taken possession of an empty glass bottle which he has used to strike the victim in the face and head. This has caused the glass bottle to smash and the victim to lose consciousness. The six offenders, including you, have then continued to kick and punch the victim and the [offenders] have been stomping on the victim while he lies on the ground. The six offenders, including you, have then backed away from the victim and have run away, just as the police were arriving on the scene. And they’ve run away out of sight.
The victim was seen bleeding from his head and face, and was vomiting, which the Queensland Ambulance outlined was a symptom of concussion. He had excessive bruising on his face and had a bottle glass embedded in his head. He was transferred to the Royal Brisbane Women’s Hospital where he was treated for his injuries.”[25]
[25] Exhibit G1, G7 page 40.
It is revocation request, where the Applicant was asked to outline any factors that he believed helped explain his offending, he said:
“I believed that the victim said something bad about my family. I got triggered by this and lost control. I feel very sorry for what I did.”[26]
[26] Exhibit G1, G15, page 68.
In a subsequent statement, he said he had been drinking alcohol and he believed the victim had said something racist about his parents. He felt the victim should not have said anything bad about his parents as he did not know what his parents had been through, and the Applicant lost control of himself.[27]
[27] Exhibit A2.
In the hearing, he said someone had said “How come this black c—t’s riding a scooter and we’re standing here”, and then he started saying something about the Applicant’s parents. The Applicant and his friends came back and said “What’s your problem?” And “You’ve got a problem?”. Then the Applicant punched the victim and the victim punched back, the Applicant fell down then got up, his friend was beating the victim up, more friends came and joined in, the Applicant lost control of himself and they had “like good beat him up”.[28]
[28] Transcript, page 15, lines 10 to 25.
The Applicant added:
“I was just, like, how can just a random person just come up and then say something about my parents that he doesn’t know nothing about them, you know. They - he doesn’t know. If like, you know like, how - like, what they’ve been through, you know. Like, just a random person doing that. And then, that’s why he got into my head, and then, from there, I lost it, you know.”[29]
[29] Transcript, page 16, lines 1 to 10.
The Applicant said he could not recall what was said about his parents. When he was asked “It was so offensive that you beat him up but you can’t remember what it was?” He answered yes.[30]
[30] Transcript, page 37, lines 27 to 45.
It is apparent that the Applicant’s version of what led him to attack the victim has evolved over time. There is no mention in the police report of any offensive comment having been made by the victim or of any of the attackers thinking one had been made. The Applicant claimed that he told his lawyer about having been called a “black c—t”,[31] however it is not mentioned in his statement and he had earlier given evidence that his lawyer had read his statement to him and he was happy with it.[32]
[31] Transcript, page 39, lines 1 to 5.
[32] Transcript, page 24, lines 1 to 12.
The learned sentencing Magistrate, when sentencing the Applicant, said that there may well have been some cultural context of the assault. She appeared to have been referring to a belief that verbal provocation can be met with violence rather than accepting that a racist comment was made. I do not accept that the victim said anything offensive to or about the Applicant or his parents. Rather, I find that the Applicant reacted to merely being spoken about in neutral language.
Following the attack, the Applicant was charged with assault occasioning actual bodily harm while in company. The next day he entered into a bail undertaking at the Magistrates Court. One condition of his bail was that he live at Ms S’s address and maintain a night-time curfew.[33]
[33] Exhibit R2, page 52.
Between October 2020 and 7 February 2021, the Applicant breached his bail conditions on seven occasions by failing to adhere to his curfew. He appeared before the courts in four separate sentencing episodes in relation to five of these offences, receiving fines and a suspended 14-day term of imprisonment which was imposed on 9 February 2021.
On one occasion the Applicant was staying at the home of a family friend, Fatuma, whom he referred to as an aunt[34] although it does not appear that she is his biological aunt. He claimed he did not realise he was breaching his bail because he thought if he was with family then the police would not breach him.[35] I do not accept this explanation. His bail conditions required him to live with Ms S.
[34] transcripts, page 60, lines 30 to 34.
[35] Transcript, page 30, line 37 to page 31, line 10.
Another breach arose when he was intercepted by the police travelling to a Christmas party just after midnight. He said the other breaches related to him being late home from soccer.[36] As though to mitigate his conduct, he claimed that there many times when the police came when he was at home.[37]
[36] Transcript, page 18, lines 30 to 45.
[37] Transcript, page 19, lines 21 to 24
In the hearing, the Applicant conceded that he had not taken his bail conditions seriously and he had thought he would just get a warning or a fine.[38] He was asked if the fact that he had accumulated $900 worth of fines in less than a month for breaching his bail conditions suggested to him that breaching bail was a serious offence. He replied that it did not and he indicated that it was just a fine that he could pay off through the State Penalties Enforcement Registry (“SPER”). What that really means is that he would not pay the fines, but instead refer them to SPER to recover in instalments.[39]
[38] Transcript, page 19, lines 30 to 36.
[39] Transcript, page 28, lines 25 to 48.
The Applicant agreed that, at the time, he thought the police kept coming to check on him because they kept finding that he was not there. He said, Ms S used to tell him to stay at home and not to go to soccer, but he used to tell her not to worry because the police would not come.[40]
[40] Transcript, page 29, lines 5 to 25.
On 5 March 2021 the Applicant was convicted of the second assault and sentenced to 15 months imprisonment. On the same day, he was convicted of the first assault and sentenced to one month imprisonment. For each of the two other breaches of his bail conditions, he was sentenced to one month imprisonment.
In her sentencing remarks the learned Magistrate described the offending as “compellingly unpleasant” and stated:
“Now, your personal history is also compelling. You have – born in difficult circumstances left with your father, detained and growing up significantly in a refugee camp in Africa, suffering a number of conditions, witnessing acts of violence and unrequited issues in relation to hunger, poverty, despair and inhumanity to other people involving, as we are all familiar with here in Australia, depravation, despair and acts of physical violence between members of the camp. I would describe that childhood as a compromised childhood, for which your experience and how to manage yourself when you have issues of confrontation, may well indeed be compromised. You have been in Australia now, as a refugee, since May 2015. You’re living with your sister and three small children. Your sister is obviously a significant stabilising feature in your life. You’ve attended school. You’ve attended TAFE and consequently as the (sic) COVID, you’ve found part-time casual work difficult to get. Okay.
There may well be some cultural context of this assault, but objectively, it is a cowardly, unprovoked and vicious attack on a person offering no acts of violence to you, in a public place in the centre of Brisbane. Whilst you might have believed that generally, if people say something to you, you must respond with an act of violence, that is not the way in which a civilised society works and will not be tolerated. So taking a totality view, your early plea, which indicates that you’re sorry, the fact that you haven’t re-offended in a significant way since the 12th of September 2020, balancing all the factors which are difficult, sadly you are still a very young fellow. But in relation to the events, we are all strangers to Australia. We all come from somewhere else. And when you are here, if you are lucky to arrive here, then civility and good conduct is the way to present yourself. If you have a situation that you cannot cope with, then the way to cope with it is by walking away, not by confronting people with physical acts of violence.”[41]
[41] Exhibit G1, G7 page 41.
On 26 May 2021, the Applicant was convicted of public nuisance offence in relation to the incident where he verbally abused a police officer, and he was not further punished.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction, relevantly, specifies that decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)…;
(iii)…;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)…;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)…;
(iv)…;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)…;
(g)….
In accordance with the Direction, both assaults are treated very seriously. Both were unprovoked. The Applicant was the sole attacker in the first and the instigator in the second. The second assault is particularly concerning. The Applicant started attacking the victim despite the victim’s attempt to leave and the victim’s friend’s efforts to prevent violence. The Applicant continued the attack as a second attacker joined in, then a third and fourth. The victim’s friend and a passing taxi driver intervened to no avail. A fifth and then a sixth attacker joined in, the victim was on the ground, and still the Applicant (and the others) kept attacking him. Even after the victim had been glassed to the head and lost consciousness, they kept punching, kicking and stomping him. It was a despicable, horrifying, sustained attack that the Applicant instigated and partook in from start to finish. The learned sentencing Magistrate described it as, objectively, “a cowardly, unprovoked and vicious attack on a person offering no acts of violence”[42] and I respectfully accept her description.
[42] Exhibit G1, G7 page 41.
This offence was punished with a sentence of 15 months imprisonment. The first assault attracted a one month prison sentence. A custodial sentence is the last resort in the hierarchy of sentencing options available to a court. Even allowing for the Applicant’s youth and disadvantaged background, the learned sentencing Magistrate considered that custodial sentences were warranted.
I accept that the Applicant was affected by alcohol when he committed both of the assaults. However, that cannot mitigate the seriousness of the offending.
The public nuisance offence was committed against a police officer in the performance of his duties. It is serious conduct. I am not persuaded that the officer was being racist or unreasonable.
The breaches of bail conditions, collectively, are serious because they were so flagrant and numerous. The imposition of fines meant nothing to the Applicant and eventually the court imposed a suspended sentence of imprisonment, demonstrating the seriousness with which the court took that repeated offending. The Applicant also committed numerous offences while on bail. Further, the Applicant obstructed the police twice and failed to stop for the police when driving unlicensed. He was caught in possession of suspected stolen goods. The Applicant’s offending when sober shows disregard for the law and those who enforce it.
The Applicant has offended frequently, and his offending has increased in seriousness over time. The cumulative impact of his repeated offending is that two members of the Australian community have been attacked, one very badly. Further, he has been uncooperative with the police and diverted finite police resources. A collateral impact of his breaches of curfew is that Ms S had to endure the police coming to her home, where she had young children, numerous times to check on the Applicant.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
In accordance with paragraph 8.1.2(2), in considering the risk to the Australian community, I must have regard to the following relevant factors on a cumulative basis:
(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; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending.
I do not have the benefit of a victim impact statement with respect to the second assault. However, it can reasonably be inferred that a victim of an attack like that would be left with deep psychological scars that would adversely impact his or her life, and probably the lives of those close to them. What is more, there were features of the attack, such as the multiple blows to the head that resulted in a concussion and the stomping, that had the potential to be fatal. If the applicant were to instigate and/or engage in further violence of that nature, the harm to individuals in the Australian community includes serious physical injury or death and serious psychological harm. The harm is so serious that any material risk of it occurring again is unacceptable.
Should the Applicant engage in further offensive conduct towards police, it is likely to add to the stress of an already stressful job, with the psychological impact that entails. Further irresponsible, irreverent behaviour is likely to divert finite police resources.

Likelihood of engaging in further criminal or other serious conduct

The Applicant was affected by alcohol at the time he committed each assault. According to the Applicant, he first started drinking alcohol when he was at a party and other people were drinking so he thought “Why not?”.[43] He consumed alcohol whenever he went to a party which was once or twice each month.[44] He was a practising Muslim at the time, aware that drinking alcohol was prohibited by his religion.[45] He said after the second assault in 2020 he did not drink alcohol again.[46]
[43] Transcript, page 43, lines 7 to 15.
[44] Transcript, page 43, lines 25 to 30.
[45] Transcript, page 43, lines 38 to 44.
[46] Transcript, page 44, lines 30 to 31.
The Applicant claimed it was out of character for him to use violence and attributed his violent behaviour to drinking and someone talking down to him.[47] He agreed that he commits acts of violence quite quickly if he feels insulted when he is drunk.[48] He said when he is drunk and no one is saying anything bad about him, he is fine but when someone “just starts with me” he cannot control himself.[49]
[47] Transcript, page 16, lines 32 to 38.
[48] Transcript, page 48, lines 20 to 21.
[49] Transcript, page 62, line 45 to page 63, line 5.
Ignoring the offending episodes, the Applicant cannot recall ever having been racially abused in Australia. He confirmed that he could not recall having been racially abused while sober.[50] There is no evidence that the Applicant was intoxicated when he perceived that a police officer was being unfair, which indicates that he behaved (verbally) aggressively when sober.
[50] Transcript, page 58, lines 15 to 31.
All three lay witnesses who gave evidence, being Ms S, and two family friends, Fatuma and Abdikadir, spoke positively about the Applicant and said they had never seen him behave aggressively. Significantly, nor have any of them seen him when he was affected by alcohol.
The Applicant committed the non-violent offences when he was not affected by alcohol, which indicates a preparedness to break the law when sober. Alcohol is therefore not the only problem that needs to be addressed, although it was a contributing factor to the violent offences.

The Applicant claims to be remorseful for the violent offences and to feel sorry for the victims. In answer to a leading question, he said he pleaded guilty because he was truly sorry and did not want to delay matters.[51] However, the Applicant knew there was closed circuit television footage of the second assault, as his lawyer had shown it to him, and that the police could prove he was guilty.[52] Accordingly he pleaded guilty knowing the strength of the case against him. He acknowledged that, and he said he also felt bad about what he had done.[53]
[51] Transcript, page 16, lines 17 to 20.
[52] Transcript, page 58, lines 1 to 14.
[53] Transcript, page 58, lines 8 to 14.
The Applicant plans to avoid alcohol and bad company who might be connected to alcohol or drugs.[54] He further said he would do whatever he needs to do to make sure he never commits another offence again, and he wants to be a good Muslim.[55]
[54] Transcript, page 16, lines 45 to 48.
[55] Exhibit A2, page 5.
The Applicant was in the wider community for five months between the second assault and his incarceration. In that time, he did not commit any violent offences and he did not consume alcohol. However, eight months elapsed after the first assault and still the Applicant went on to commit a second, more serious assault, so a period of five months in the community without any violence does not give me comfort that the Applicant adequately addressed the factors that contributed to the violent offending. He has been of good behaviour during his time in gaol and detention. However, he has not had the chance to demonstrate an extended period of good behaviour and abstinence from alcohol in the wider community which, I note, is a much less structured environment where alcohol is freely available.
The Applicant he did not engage in counselling or rehabilitation programs while he was on bail but he recently completed a “Drug and Alcohol Abuse 101” course which consisted of seven contact hours, and he completed an “Anger Management 101” course consisting of five contact hours.[56] He admitted that he did the course partly to assist in getting his visa back and partly for his own benefit.[57] I take that he did the drug and alcohol course for the same reasons. The Applicant could not read all of the words when completing the course assessments, so a friend in immigration detention, who had already completed both courses, helped him. His friend read some of the questions and answered some questions himself. With other questions, the Applicant answered, and his friend submitted those answers.[58] The Applicant was able to demonstrate some learnings from the drug and alcohol course, for example to avoid associating with negative peers, and from the anger manager course, such as practising relaxation skills and not holding grudges.[59] However, it is apparent that he could not have got the full benefit of the courses. I am not satisfied that the Applicant’s participation in these courses adequately addressed the factors that contributed to his offending.
[56] Exhibit A2, pages 54 and 55.
[57] Transcript, page 50, lines 18 to 21.
[58] Transcript, page 45, lines 10 to 46; page 46, line 45 to page 47, lines 7; page 61, lines 31 to 34.
[59] Transcript, page 50, lines 1 to 3.
The Applicant will be on parole until June 2022.[60] He said he intends to do further counselling in the future.
[60] Transcript, page 23, lines 10 to 11.
The Applicant plans to live with Ms S’s family if he gets his visa back. He considers that at the moment he needs them, and they need him.[61] He believes he could get a job with his former employer which is also where Ms S’s partner “Mr S” works.[62]
[61] Transcript, page 12, lines 14 to 20.
[62] Transcript, page 13, lines 12 to 18.
He said he has the following family support: Ms S, his father, an uncle in New South Wales, Fatuma and Abdikadir’s family.[63] However, Ms S described the Applicant’s relationship with their father as “not very good and not very bad” and said that he hardly ever visits. The Applicant calls him sometimes, and they see each other at community functions once or twice a year.[64] The Applicant’s father did not provide a statement or letter of support in relation to his revocation request or his application to the Tribunal. Nor did the relative in New South Wales. I do not accept that the Applicant’s father is, or will be, any help to the Applicant. Nor do I accept that a person in New South Wales could be helpful except for perhaps moral support.
[63] Transcript, page 52, lines 33 to 46; page 53, lines 18 to 29.
[64] Transcript, page 72, lines 10 to 28.
Ms S was unaware that the Applicant was consuming alcohol and she only found out recently when the Applicant told her.[65] However, she said that around once per month, he would be absent for two or three days.[66] He did not tell her where he was going. Rather, he got dressed up and told her he might not be home for the weekend. She did not always have warning that he would be away for a few days.[67] It is not surprising that Ms S could not keep track of the Applicant’s activities: she had three young children to look after. She now has four children under the age of six. She is in no better position to supervise the Applicant now.
[65] Transcript, page 77, line 45 to page 78, line 2.
[66] Transcript, page 78, lines 5 to 9.
[67] Transcript, page 82, lines 17 to 40.
The Applicant described the people who joined in the second assault as mates he knows because they lived in the same area.[68] He said that since going into custody he has not had any contact with them.[69] I accept that. Ms S has moved since then, but she has only moved to the next suburb.[70] Accordingly, the Applicant will still live near that area, which carries a risk that he will see these people around, which will make it more difficult to continue to avoid them.
[68] Transcript, page 40, lines 28 to 32.
[69] Transcript, page 35, lines 4 to 5.
[70] Transcript, page 62, lines 30 to 38.
Abdikadir is a family friend of Ms S and the Applicant, having first met them in around 2015. He recalled that towards the end of 2019, he was hearing from other people that the Applicant was spending time with other people and was drinking alcohol. Ms S was calling him, asking if he knew where the Applicant was. It was apparent from Abdikadir’s evidence that the Applicant did not disclose the extent of his drinking and that he represented to Abdikadir that he had been pressured to drink,[71] whereas he made no such claim in these proceedings. I think the Applicant was not completely frank with Abdikadir about his behaviour which does not bode well if Abdikadir is to have a role in guiding the Applicant to avoid alcohol, negative peers and criminal behaviour.
[71] Transcript, page 97; page 98, lines 1 to 10; page 99, lines 5 to 10.
The Applicant was a practicing Muslim during the period when he was consuming alcohol. He claims that he is a better Muslim now.[72]
[72] Transcript, page 61, lines 6 to 14.
Dr Gavan Palk, forensic psychologist, interviewed the Applicant for one and a half hours and he interviewed Ms S for 30 minutes. He applied standard psychometric risk assessment instruments to determine the Applicant’s risk of re-offending. He considered that the Applicant had accepted full responsibility for the offending, expressed remorse and was serious about abstaining from alcohol. He thought the Applicant had reacted impulsively and recklessly in both assaults due to the influence of alcohol and being in a group of similar aged friends. He also noted a sensitivity to perceived racist comments or aggression, which he described in colloquial terms as a “chip on his shoulder”.
Dr Palk assessed the Applicant’s risk of reoffending as low considering his personality and overall lifestyle, remorse, willingness to abstain from alcohol in accordance with his Muslim faith and attitudes to further study and employment, and his desire to remain in Australia. He considered that the Applicant is most at risk when he is under the influence of alcohol and with other peers who have been consuming alcohol. He said if he abstains from alcohol, he should remain a minimal risk for future offending. However, he thought at the Applicant’s age there was a risk that the Applicant would go out and drink with mates and “do something stupid again”.[73] He put the risk of the Applicant consuming alcohol at 20-25%.[74]
[73] Transcript, page 115, lines 8 to 10.
[74] Transcript, page 121, line 6 to page 122, line 8.
Dr Palk considered that, at the time of his offending, the Applicant appeared to be extremely immature. He explained that the human brain, particularly the frontal lobe, is not fully developed in men until the age of 25 or their late 20s. The Applicant is, according to him and Ms S, around 21 years old. Dr Palk said that the frontal lobe is where risk assessment and planning takes place. Brain development is a gradual process. Growing older is likely to reduce the Applicant’s risk of reoffending. Currently his frontal lobe is not fully developed.
According to Dr Palk, the Applicant needs to be in an environment where he can submit to people around him who are going to encourage him in prosocial behaviour, such as genuine practising Muslims, Ms S and her partner. He appeared to assume that the Applicant would get strong guidance from Mr S. However, Mr S did not give evidence and there is no evidence before me about his willingness or ability to provide guidance to the Applicant.
Dr Palk considered parole would benefit the Applicant although he thought a year would be better than the five months that he has left.
Mrs Lesley M Welsh, counsellor, was engaged to assess the impact of the Applicant’s situation on Ms S and her children. She also gave her opinion about the relationship between trauma she thought the Applicant had suffered and his offending, and she thought trauma counselling was necessary. Ms Welsh did not speak with the Applicant and she did not have access to as much information about the Applicant’s offending as did Dr Palk.
Dr Palk acknowledged that the Applicant had experienced some neglect or emotional disadvantage coming from a large family, the trauma of moving from one culture to another and the loss of his natural mother at a young age. However, he did not appear to place much significance on this in terms of risk of re-offending. He did not get the impression that the Applicant’s father and step-mother had neglected him: rather they had too many other children and were more focused on them. I prefer Dr Palk’s evidence given he had access to more reliable information and his experience and qualifications.
Taking all of the relevant matters into account, particularly Dr Palk’s expert opinion, I am satisfied that there is a low, but material, risk that the Applicant will engage in further violent offending. There is also a material risk that he will engage in further offending of the kind he has previously engaged in when sober
Conclusion: Primary Consideration 1
The second assault was so savage and the nature of harm if it were repeated is so serious, any real risk of further offending of that kind is unacceptable. There is a real risk of further offending of that kind. Primary Consideration 1 weighs very heavily against revocation of the cancellation of the Applicant’s visa. Extremely compelling countervailing reasons would be required to outweigh this Primary Consideration.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.
There is no evidence before the Tribunal that the Applicant has been convicted of an offence, found guilty of an offence, or had charges proven, that involve family violence. There is also no information or evidence from independent and authoritative sources indicating that the Applicant is, or has been, involved in the perpetration of family violence. This Primary Consideration is not relevant.
PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8(3) of the Direction compels a decision-maker to consider the best interests of a minor child in Australia. Under paragraph 8.3(1), I must determine whether non-revocation under section 501CA is or is not in the best interests of a child affected by the decision. Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
·     the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
·     the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
·     the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
·     the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
·     whether there are other persons who already fulfil a parental role in relation to the child; and
·     any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).
The Applicant claims that the best interests of Ms S’s four daughters, and of his step-brother and four half-brothers, are affected by his visa cancellation.
The Applicant’s step-brother is his step-mother’s child from a previous relationship. He is younger than the Applicant. The four half-brothers are the children of his step-mother and father. They are aged between five and 12 years. The Applicant lived with these children until he moved out of his father’s home in Australia. He says he loves them and they love him. I accept that. According to Ms S, the Applicant sees these children at community events and they get really excited to see him.[75] Fatuma has seen the children interact with the Applicant when they visited Ms S’s home. She described his relationship with them as “good, just normal”.[76] There is no evidence about any current impacts, or likely future impacts, of the cancellation of the Applicant’s visa on these children or of their views about it. The children were referred to collectively, so I am not aware of the individual relationship each has with the Applicant.
[75] Transcript, page 73, lines 1 to 2.
[76] Transcript, page 90, lines 30 to 46.
These children each have two parents fulfilling the parental role and there is no suggestion that the Applicant would ever be called upon to do that or to have any greater involvement in their lives than he has had since moving out of their parents’ home. I accept that these children are fond of the Applicant and would presumably be saddened if he were to be removed to Ethiopia. Further, I am satisfied that if the Applicant were to remain in Australia, there would be potential for him to have some positive interactions with these children, and that deporting him removes that potential. There is no evidence as to whether the children would be able to, or would want to, maintain regular contact with the Applicant if he were removed to Ethiopia.
Taking all relevant matters into account, the best interests of these children weighs in favour of revocation of the cancellation of the Applicant’s visa but only to a minimal extent.
Ms S had three daughters during the time the Applicant lived with her. Child A was born in August 2016, Child B was born in June 2018, and Child C was born in December 2019. A fourth daughter, Child D, was born after the Applicant was incarcerated.
Initially Mr S did not live with her. He moved in when Child A was 18 months old. There is ample evidence, which I accept, that the Applicant helped Ms S to look after the children and that he continued to do so after Mr S moved in. I accept that he developed meaningful relationships with Child A and Child B before he was incarcerated. At the time of his incarceration, Child A was around four and a half years old and Child B was two years and nine months old. Child C was only 16 months old.
It was contended on the Applicant’s behalf that his relationship with the children was quasi-parental. It is not readily apparent what that was intended to mean but the facts are that from 2017, the Applicant was employed (with some breaks) so his ability to help with the children was limited. From early 2018, Mr S lived in the home. His routine is that he works the nightshift from Monday to Friday, starting at 7.30pm and returning at 5.00am.[77] After sleeping, he plays with the children and stays at home until he has to return to work.[78] The Applicant was working three or four night-shifts per week before he was incarcerated.[79] More recently, the Applicant used to stay away from the home for two or three days at a time, indicating that he was not relied upon to be there to care for the children.
[77] Transcript, page 10, lines 44 to 48.
[78] Transcript, page 11, lines 23 to 28.
[79] Transcript, page 76, lines 35 to 40.
It is reasonable to infer that the police kept conducting curfew checks at his home because the Applicant kept breaking curfew. Ms S said that when the police came, sometimes the children were there and they became frightened.[80] Accordingly, the Applicant’s prior conduct has had a detrimental impact on the children although it is not known whether the impact was lasting.
[80] Transcript, page 80, lines 35 to 44.
The Applicant has now been absent from the family home for 11 months. In that time, he has maintained contact with Ms S via videocalls every couple of days[81] and the children sometimes participate in those calls.[82]
[81] Transcript, page 9, lines 46 and 47.
[82] Transcript, page 10, lines 1 and 2.
Since the Applicant was incarcerated, Child A constantly asks about him, and she goes into his room and cries because he is not there. Child B is a fussy eater and is seeing a child health consultant.[83] Ms S said the Applicant could get Child B to eat foods that she would not eat without his influence. She is not eating much, and Ms S is worried about her.
[83] Transcript, page 88, lines 40 to 47.
Ms S claimed that Child A and Child B are both struggling without the Applicant. However, that claim does not sit comfortably with her behaviour and I therefore think it is exaggerated. That is, Ms S got a referral for herself to see a psychologist because of her stress and anxiety (see Other Consideration (d) below), and she is taking Child B to see a health consultant about her eating, however she has not arranged any counselling to help Child A or Child B to deal with the Applicant’s absence. She said she might if she continued to be concerned.[84] In circumstances where Ms S accessed counselling for herself and assistance for Child B’s fussy eating, it is reasonable to expect that she would access counselling for her children if she genuinely thought they were struggling with the Applicant’s absence.
[84] Transcript, page 88, lines 15 to 25.
Ms S said Child C has a strong bond with the Applicant. However, she was still a baby when the Applicant was incarcerated and nearly a year has passed since then.

Ms Welsh is a private practicing Counsellor, Mental Health Practitioner with Beyond Blue and Social Worker/Counsellor. She assessed the impact of the Applicant’s predicament on the emotional and social wellbeing of Ms S and her children, and what is in the best interests of the children. She met Ms S and her children in person, and subsequently spoke with Ms S on the telephone. Most of her assessment of Ms S and her children was based on what Ms S reported. I do not think that what Ms S told Mrs Welsh was completely reliable. Further, there appeared to be a myopic focus on the Applicant’s assistance with the children while their father’s contribution was virtually airbrushed out. I think these matters affected Mrs Welsh’s assessment.
Mrs Welsh thought the Applicant being in immigration detention was having a major emotional/mental health impact on Ms S and her children. I respectfully do not accept this sweeping statement. First, as mentioned above, Ms S has not sought assistance for any of them. Second, Child D was not even born when the Applicant lived with the family, so she did not suffer the loss of the Applicant. Third, Child C was very young when the Applicant lived with her and she also had both parents living with her and caring for her. Lastly, none of the assessment tools that were applied to the children indicated significant psychological or emotional concerns. For example, Child A was in the average range on the Behavioural Difficulties scale and the Pro-social Scale. Child B was not assessed as having any behavioural difficulties, but she had a slightly elevated score on the Hyperactivity Scale. She was in the average range on the Pro-social Scale. No issues were identified with Child D’s well-being and development. Ms Welsh said Child C reportedly cries and hangs onto Ms S, and that is not unusual given the stress the family is under, and that the Applicant has been a major support to the family. She did not seem to explore other possible causes of that behaviour.
Ms Welsh assessed Ms S to be suffering from severe depression at a level that could interfere with her parenting if she is not provided with support. She also assessed Ms S as having severe anxiety. Ms Welsh thought Ms S’s depression, anxiety and stress primarily related to her fears about the Applicant and her concerns for Child B. She is afraid for the Applicant’s wellbeing and his life if he is returned to Ethiopia – being that the Applicant has no family members for support in Ethiopia, does not speak the language well and is at risk of physical harm. Ms Welsh said that Ms S being depressed and anxious could have a flow on effect, affecting the children’s mental health and their development. She said they are sensing their mother's fear, anxiety and depression and they are missing the Applicant themselves. Further, she thought the impacts on the two older children will impact the two younger children.
In her evidence, Ms S expressed that she fears that the Applicant will be abducted and made to fight in a war. For reasons discussed in Other Consideration (a), I do not accept that these claims are well founded. Further, the Applicant does speak the language but not very well, and Ms S said her family in Ethiopia would probably help the Applicant. Accordingly, it appears that much of Ms S’s distress is without basis. When Ms Welsh was asked what can be done where a person is experiencing anxiety and worry about something that may not be real, she said she can work on that, and she works with people on that all the time.[85]
[85] Transcript, page 110, lines 30 to 35.
Ms Welsh concluded that if the Applicant were to be deported it would be like the children suddenly losing a parent. She said they are likely to experience intense fear, panic, grief (a combination of sadness and loss), depression, helplessness, and hopelessness. She said the children have lost a lifeline, and often this can relate to a loss of self. She said this loss can be already seen in the emotional impact that his detention has had on the children.
Again, I respectfully do not accept this sweeping statement. The Applicant has been away from the family home for nearly a year without any of those impacts. Ms S has always been the children’s primary carer. Since early 2018, Mr S has fulfilled a parental role in the children’s home. There is no evidence that the Applicant was a “lifeline” in any respect. The only emotional impact that is evident is Child A and Child B missing the Applicant, sometimes to the point of tears, and asking when he will come home. This is not surprising given they knew him as a member of their household, they each have an emotional bond with him, and they are frequently reminded of him when they see and hear him on FaceTime.
When Ms Welsh was giving evidence, it became apparent that she held some misconceptions or there were some information gaps regarding Ms S’s family situation. For example, she seemed to think that Mr S working the nightshift was a problem in terms of the contribution he could make in the home and that therefore Ms S relied on the Applicant to help. However, the children would be asleep for most of the time Mr S is at work. Further, her partner spends time on weekends and when he is awake on weekdays at home with the children.[86] The Applicant worked the nightshift three or four times per week, meaning he was often unavailable when Mr S was unavailable. Plus, he spent time away from home, playing soccer and socialising. Ms Welsh also said it was uncertain where Child B’s fussy eating came from. However, it existed before the Applicant was incarcerated.
[86] Transcript, page 11, lines 23 to 28.
The main thrust of Ms Welsh’s evidence was that Ms S’s anxiety and depression is impacting, and will continue to impact, the wellbeing of the children. Some of that is attributable to grief and well-founded concern for the Applicant. Some is attributable to unrealistic fears for the Applicant’s safety and it can be treated with counselling. Separate to that, Ms S is the primary carer for four children under the age of six. That would put a strain on anyone’s emotional and mental health. The cancellation of the Applicant’s visa did not put her in that position, but it meant she did not have the benefit of his help. Having him back would benefit Ms S and, following Ms Welsh’s logic about her mental health impacting the children, that would benefit the children. However, he is not committed to staying with Ms S’s family in the long term, meaning he cannot be relied on for live-in help in the long-term. Ms S has a supportive partner, and she has support from family friends. She has access to a psychologist and a social worker, and Ms Welsh said she could also access free counselling. She is accessing professional help for Child B.
I am satisfied that if the Applicant is removed to Ethiopia, Child A and Child B will feel grief and loss and Child C and Child D may miss the interaction on FaceTime. I am not satisfied that the children will suffer emotionally or psychologically beyond that. All four children, who have many years until they turn 18, will miss out on the benefits of having the physical presence of a loving uncle in their lives. It is not guaranteed that the Applicant could maintain regular contact with the children via telephone or electronic means from Ethiopia.
Taking all relevant matters into account, the best interests of these children weighs to a moderate extent in favour of revocation of the cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 3
Taking into account the best interests of all of the children mentioned above, this Primary Consideration weighs moderately in favour of the revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. It further stipulates that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that he may do so, the Australian community, as a norm, expects the government not to allow the non-citizen to enter or remain in Australia.
Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa.
Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185.
Analysis – Allocation of Weight to this Primary Consideration 4
Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters:
·the Applicant grew up in a refugee camp after his parents fled Ethiopia;
·he moved to Australia in 2015 when he was 14 years old. He is now 21 years old;
·he commenced offending three years after arrival, at the age of 17;
·the Applicant has engaged in two violent offences, one of which was extremely serious;
·the Applicant’s offences can be categorised as including serious violent offending and an offence against a police officer in the performance of their duty;
·there is a low, but real, risk that he will re-offend, including that he will commit further violent offences;
·his offending, including multiple breaches of bail conditions and offensive language directed at a police officer, demonstrate a disregard for the laws and the administration of justice regulating the community that he seeks to re-enter;
·he has contributed to the community through gainful employment; and
·if he is removed to Ethiopia, it will adversely affect family members, particularly Ms S and her children.
It was contended on the Applicant’s behalf that, given his compromised childhood, the Australian community would have some sympathy for him, and that he would be entitled to a greater degree of tolerance. The Australian Government, on behalf of the Australian community, granted the Applicant’s family a humanitarian visa because of their disadvantaged circumstances. Having the privilege of that visa, the Applicant punched a member of the Australian community and viciously attacked another. In doing so, he seriously breached the trust of the Australian community. Further there is an unacceptable risk that he will re-offend in a similar manner. The Direction does not expressly provide for greater tolerance to be afforded on the basis of disadvantage. In the present case, I do not see a legitimate reason for allowing greater tolerance to the Applicant on account of his disadvantaged background.
Conclusion: Primary Consideration 4
Primary Consideration 4 weighs heavily in favour of non-revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).
(a) International non-refoulement obligations
It was contended on the Applicant’s behalf that he would be at risk of harm in Ethiopia because he is Oromo and because of instability and danger there. The Applicant said he believes there is a war going on between Ethiopia and Eritrea[87] and that when there is a war “they” take young people to fight for them. He thinks there are Ethiopian tribes fighting Eritrean tribes.[88] No independent evidence in support of this was put forward. Ms S said she fears that the Applicant will be forced to do things against his will and he will be killed if he refuses to do “military stuff”.[89] She said the government takes young boys, which she later clarified to “teenagers” to the military. She said she had heard this from social media, seeing videos on Facebook of “men being forced to go places”. She was unable to say who the men were and who was forcing them.[90] She said she is not in contact with anyone in Ethiopia and that she just comes across videos on Facebook sometimes. Ms S does speak with her mother in Ethiopia. When asked what her mother tells her, she said they just talk about how she is doing.[91] The Applicant is not a teenager: he is a 21 year old man. No independent evidence was put forward in support of Ms S’s claims.
[87] Transcript, page 55, lines 1 to 15.
[88] Transcript, page 55, lines 18 to 31.
[89] Transcript, page 85 lines 1 to 5.
[90] Transcript, page 85, lines 27 to 45.
[91] Transcript, page 86, lines 1 to 16.
The Applicant and Ms S further claimed to fear for the Applicant because he does not speak Oromo well and does not know anyone in Ethiopia.
Paragraph 9.1(1) of the Direction provides that 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, and it refers to Australia’s 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”).
It goes on to say that the Act, particularly the concept of “protection obligations”, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing and that in considering non-refoulement obligations where relevant, decision-makers should follow the tests enunciated in the Act.
Subsections 36(2)(a) and 36(2)(aa) of the Act provide the tests for protection on the basis of refugee status and for complementary protection. Those tests contain exclusions that are not contained in the CAT or ICCPR. Accordingly, a person who could not satisfy the criteria for a Protection visa may still engage Australia’s non-refoulement obligations as a matter of fact despite the Government’s interpretation of the scope of its obligations. As Mortimer J said in Minister for Home Affairs v Omar[92]
“Critically, what matters for the exercise of the s 501CA(4) discretion is not the consideration of a visa criterion which might have similar content (in some respects) to Australia’s non-refoulement obligations: it is whether Australia’s non-refoulement obligations are engaged in respect of a particular individual.”[93]
[92] [2019] FCA 279.
[93] At [59].
Paragraph 9.1(6) of the Direction recognises that it may not be possible for a decision-maker at the s 501CA stage to consider non-refoulement issues in the same level of detail as they are considered in a Protection visa application.
I am not required to make a determination on whether non-refoulement obligations are owed[94] and in this case the Applicant’s claims are vague, and they are not accompanied by supporting country information. Even so, I shall give meaningful consideration to the Applicant’s representations on the claimed risk of harm if returned to Ethiopia and consider claims of harm or hardship separately to the question of whether those claims engage Australia’s non-refoulement obligations.
[94] See paragraph 9.1(6) of the Direction and STZS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1140, citing Ali v Minister [2018] FCA 650 at [28], [34] and Greene v Assistant Minister [2018] FCA 919.
The most recent Department of Foreign Affairs and Trade country report on Ethiopia (“DFAT report”) was published in August 2020[95]. The DFAT report contains the preface:
“This report is informed by DFAT’s on-the-ground knowledge and discussions with a range of sources in Ethiopia. It takes into account relevant and credible open source reports, including those produced by: the United Nations and its agencies; the US Department of State; the UK Home Office; the World Bank; the International Monetary Fund; leading human rights organisations such as Amnesty International, Human Rights Watch and Freedom House; and reputable news sources. Where DFAT does not refer to a specific source of a report or allegation, this may be to protect the source.”[96]
[95] Exhibit R2, S4, DFAT Country Information Report Ethiopia dated 12 August 2020.
[96] Exhibit R2, S4, DFAT Country Information Report Ethiopia dated 12 August 2020, paragraph 1.4.
I consider this report to be a reliable source on the subjects it addresses although it is not comprehensive.
The report provides no support for the claim made by the Applicant and Ms S that there is a risk that the Applicant would be forcibly recruited to fight in a war or killed if he refuses.
With respect to the Applicant’s ability to speak Oromo, he spoke Oromo at the school in the Kenyan refugee camp and he speaks it with his father. He speaks with his mother by telephone around three times per week. She speaks to him in Oromo and he speaks a mix of Oromo and Swahili.[97] I am satisfied that the Applicant can speak Oromo at a basic conversational level. The Applicant is relatively young and Dr Palk assessed him to be of at least average intelligence. The Applicant did not put forward any reason why he could not improve his Oromo in an environment where Oromo is commonly spoken.
[97] Transcript, page 9, lines 1 to 25.
According to the DFAT report, the Oromo people are the single largest ethnic group in Ethiopia, making up nearly 35 per cent of the population, with significant Oromo communities in Addis Ababa which is surrounded by Oromo state. Oromo is the language that is spoken in Oromo state and is the language of administration and schooling there.[98] Further, the Applicant speaks English well enough that he did not require an interpreter for the hearing, and English is his preferred language.[99] English is widely taught and spoken in Ethiopia.[100]
[98] Exhibit R2, S4, DFAT Country Information Report - Ethiopia dated 12 August 2020 Paragraph 3.5.
[99] Transcript, page 9, lines 1 to 25.
[100] Exhibit R2, S4, DFAT Country Information Report - Ethiopia dated 12 August 2020 Paragraph 2.7.
In relation to ethnic discrimination in Ethiopia, the DFAT report states that:
·     official discrimination, including systematic state-sanctioned discrimination, denial of public services and higher detention rates, based on race and/or ethnicity is rare;
·     societal discrimination based on ethnicity can occur, but is predominantly in the form of positive discrimination in favour of a particular ethnic group rather than active discrimination against people of a different race or ethnicity; and
·     outside Addis Ababa, Oromos face a moderate risk of violence in areas or states where they constitute a minority.
The main international airport is located in the capital, Addis Ababa, so that city would be easily accessible to the Applicant if he were removed to Ethiopia. According to the DFAT report:
·as Ethiopia’s administrative and commercial capital, Addis Ababa attracts migrants from across the country in search of economic opportunities and has a multi-ethnic character;
·while the security situation has deteriorated in parts of Ethiopia since 2018, including due to inter-ethnic clashes, Addis Ababa has largely been immune and is particularly stable;
·different ethnic groups have a history of co-existence in Addis Ababa, and discrimination on ethnic grounds is not common there. One source described ethnicity as a non-factor in Addis Ababa, and most people consider themselves from Addis Ababa as opposed to a particular ethnic group; and
·violence based on ethnicity is not common in Addis Ababa, but it is a growing concern in regional states.[1]

Another option for the Applicant is to settle where Ms S’s family members live. Ms S is in phone contact with her mother in Ethiopia[101] however she has not been in contact with her full siblings there since she left as a child.[102] Ms S’s mother has diabetes and an issue with her blood pressure. She does not have a partner and does not live with any of her children,[103] although two of them live near her.[104] She does not have a job. Ms S and the Applicant sometimes send money and she receives support from family and friends who live in Ethiopia, including her children.[105] Ms S thinks that if the Applicant had to return to Ethiopia, her mother would be able to help him to settle in and he could possibly live with her. She could also bring him to her mosque and introduce him to her community.[106] When asked if she thought her siblings in Ethiopia might be nice to the Applicant and perhaps give him a bit of support she said yes.[107] I do not have information about Ms S’s mother’s ethnicity, but she was married to Ms S’s father who is Oromo and gave birth to Ms S in Diksis in the Oromo state[108] both of which suggest that she is Oromo. There is no evidence that Ms S’s mother or siblings are, to her knowledge, at risk of persecution where they are.
[101] Transcript, page 70, lines 22 to 25.
[102] Transcript, page 70, line 10.
[103] Transcript, page 86, lines 34 to 42.
[104] Transcript, page 87, lines 14 to 15.
[105] Transcript, page 87, lines 1 to 8; lines 15 to 18.
[106] Transcript, page 87, lines 23 to 39.
[107] Transcript, page 87, lines 45 to 48
[108] Exhibit G1, G27, page 130.
The Applicant’s father was detained and beaten on suspicion of supporting the OLF, however the OLF was delisted as a terrorist organisation in June 2018.[109] Further, there is no evidence to suggest that the Applicant would be imputed with any political affiliation based on his ethnicity or his connection to his father.
[109] Exhibit R2, S4, DFAT Country Information Report - Ethiopia dated 12 August 2020 Paragraph 3.8.
Accordingly, there are at least two places in Ethiopia where the Applicant could potentially settle that do not appear to carry a real possibility of serious harm or the types of harm covered by the CAT or ICCPR for the reasons put forward by him or on his behalf. Any risk of harm or hardship based on the general living conditions in Ethiopia is better addressed under Other Consideration (b).
The Applicant may apply for a Protection visa. Whether one would be granted is a matter of speculation although his chances currently seem slim. If he is not granted a Protection visa, he is liable to be held in immigration detention until it is reasonably practicable to remove him to Ethiopia. There are two potential issues that could result in some delay.
First, paragraph 5.37 of the DFAT report refers to the Ethiopian government having typically welcomed “voluntary” returnees. It is not apparent whether Ethiopia accepts involuntary returnees. Accordingly, there is a chance that, if the Applicant did not consent to removal to Ethiopia, he would not be accepted. In that scenario, if the Applicant chose not to consent, he would also be choosing to remain in immigration detention for an unknown period while the Minister explores possible solutions.
Second, the Applicant contends that he does not know if he is a citizen of any country or if he can establish Ethiopian citizenship as he was born in Kenya and he has no records of his birth.[110] I accept that the Applicant was born in Kenya and does not have a record of his birth. According to the DFAT report, Ethiopian citizenship can be obtained through descent (where at least one parent must be an Ethiopian citizen), marriage or a lengthy and complicated naturalisation process.
[110] Exhibit G1, G15, page 71.
There is ample evidence that the Applicant’s father has Ethiopian citizenship and some evidence that the Applicant does too. It the Applicant’s revocation request, he said that his mother and father were of Ethiopian nationality.[111] A Department of Immigration and Border Protection notification of the grant of a Refugee and Humanitarian visa dated 25 March 2015 describes the Applicant’s father, and all of his children who were covered by the visa, including the Applicant, as having Ethiopian citizenship.[112] The visa application states that the Applicant’s father has Ethiopian citizenship and so does the Applicant.[113]
[111] Exhibit G1, G15, page 67.
[112] Exhibit G1, G27, pages 102 to page 105.
[113] Exhibit G1, G27, pages 127 to 130.
According to the DFAT report, Ethiopian civil documents such as birth and death certificates are issued on the basis of statements made by the person applying and supporting witnesses - limited supporting documentation is required. The Applicant is in contact with both his parents who could presumably assist this process. Further, at the time when the Applicant’s father applied for the Refugee and Humanitarian visa, he had five siblings living in Ethiopia.[114] Those siblings who remain could potentially provide supporting statements at least in relation to his father’s nationality. The Applicant has not made any attempt to contact the Ethiopian Embassy in Australia to obtain a passport or birth certificate.[115] On the available evidence I am not satisfied that the Applicant would not be able to establish Ethiopian citizenship. However, I accept that there may be some delay in removing the Applicant as he does not currently have an Ethiopian birth certificate or passport.
[114] Exhibit G1, G18, page 79.
[115] Transcript, page 56, lines 1 to 3.
The Applicant told Dr Palk that he was being treated well in the Christmas Island Immigration Detention Centre and that he was able to play soccer and undertake fitness training. However, Dr Palk detected mild to moderate depression and an adjustment disorder due to the Applicant’s current situation. He assessed the Applicant as being a young healthy male of normal fortitude. Despite having been born and raised in a refugee camp he impressed as resilient. Dr Palk opined that if the Applicant were deported or held on a long-term basis in a detention centre he would suffer severe psychological trauma as he would be denied a close meaningful relationship with family members who love and support him and are in the best position to assist him to maintain a non-alcohol lifestyle in keeping with his Muslim religion. Dr Palk did not state how long “long term” is. The Applicant has been in custody (gaol and immigration detention) for a year without suffering severe mental health impacts. As long as the Applicant remains in detention, he will have access to the International Health and Medical Service, which provides psychological and psychiatric treatment in detention, and he will be able to maintain frequent communication with his family.
I am not satisfied that removal of the Applicant to Ethiopia would breach Australia’s non-refoulement obligations. The Applicant has been in detention for nine months. He is not facing the prospect of indefinite detention if his visa is not returned. Nor am I satisfied on the evidence before me that he is facing an especially long delay in removal to Ethiopia if his visa is not returned. There could be some delay in removing him if establishing his Ethiopian citizenship is not a smooth process. There could also be delay if Ethiopia only accepts voluntary returnees and he chooses to stay in detention rather than consent to being removed, in which case the delay would be by his own hand. The Act contemplates that it may not be possible to immediately remove an unlawful non-citizen. Some delay until removal is reasonably practicable is not unusual and does not warrant the allocation of weight in favour of revoking the cancellation of the Applicant’s visa.
This Other Consideration is neutral.
(b) Extent of Impediments if Removed
As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is a 21 year old male in good physical health. He currently has mild to moderate depression and an adjustment disorder arising from his current circumstances. He has never lived in Ethiopia so he is not familiar with the culture. He speaks a basic conversational level of Oromo and a conversational level of English. He is not literate in Oromo and he needs some help reading and writing in English.
The Applicant is concerned about his safety in Ethiopia. I accept that there is a higher level of generalised crime and instability in the parts of Ethiopia where the Applicant could feasibly settle.
The DFAT report does not indicate that government income support would be available to the Applicant in Ethiopia and I accept that it would not. According to the DFAT report, while consistently high growth in the Ethiopian economy has helped improve living standards and reduce extreme poverty levels, Ethiopia remains one of the poorest countries in the world. According to the Ethiopian government, 8.4 million people required humanitarian aid, including emergency food assistance, in 2020. In practice, this number is likely significantly higher. Poverty is most pronounced in rural areas. Urban unemployment has steadily decreased since 2003 and was 19 per cent in 2019. Sixty-five per cent of the urban working-age population, and 60 per cent of the urban unemployed live in small cities and towns. Post-secondary graduates consistently experience the lowest levels of unemployment (14.1 per cent in 2018) and secondary school graduates consistently experience the highest (24.3 per cent in 2018).
The Applicant completed high school and he has a Certificate 3 in English and a Certificate 1 in construction from TAFE.[116] He has work experience in construction, unloading containers and cleaning machinery at a chicken factory.[117] He is young and able bodied. I am satisfied that he has transferrable skills that would enhance his prospects of earning a living in Ethiopia. The Applicant used to send money to Ms S’s mother in Ethiopia and Ms S thought her mother could possibly provide accommodation to him.
[116] Exhibit A2, page 2.
[117] Exhibit A2, pages 2; Exhibit A3 page 7.
Access to health care is an ongoing challenge in Ethiopia, particularly in rural areas. Ethiopia has one physician and three hospital beds for every 10,000 people. Public health facilities in the major cities, including Addis Ababa, are basic.
There is no evidence that the Applicant’s current psychological conditions are impairing his ability to function: he is complying with detention centre rules, participating in physical/social activities, engaging in courses and in frequent contact with his family. He is not currently accessing any treatment for his depression or adjustment disorder and he has not indicated that he would seek treatment for those conditions in future. Dr Palk opined that removal to Ethiopia would result in severe psychological trauma. I accept that the Applicant’s mental health is likely to deteriorate at least in the short term if he is removed to Ethiopia. There is limited access to mental health treatment in Ethiopia. Psychiatric services are offered in most public hospitals, and non-governmental organisations (NGOs) are also active in this field, however it is insufficient to service the population.
Ms S thinks her mother could take the Applicant to her mosque and introduce him to her community. Accordingly, the Applicant would not be all alone, without anyone to guide him or provide emotional support if he lives where Ms S’s mother lives. Two of Ms S’s siblings, the Applicant’s half-siblings, live nearby, potentially providing additional family support.
I have considered the impediments that Applicant may face in establishing himself in Ethiopia. He will be at a disadvantage as he will be missing his family and he will have to adjust to an unfamiliar place with a much lower standard of living, with minimal familial and social support. However, I do not consider the challenges he will face to be insurmountable such that they would prevent the Applicant from maintaining basic living standards in the context of what is generally available to other citizens of Ethiopia.
This Other Consideration (b) weighs in favour of revocation of the mandatory cancellation to a considerable degree.
(c) Impact on victims
There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims. This Other Consideration is therefore neutral.
(d) Links to the Australian Community
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
·the strength, nature, and duration of ties to Australia; and
·the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
The Applicant came to Australia as a child at the age of 14, and he has lived in Australia for seven years. He commenced offending three years after arriving.
The Applicant has contributed to the community through gainful employment from 2017 to 2020. He worked as a trainee in construction, on a casual basis at the Port of Brisbane unloading containers and at a chicken factory cleaning the machinery.[118] There is no evidence that he undertook any voluntary work in the community although Fatuma noted that at community functions he helped with the barbecue, passing around food, collecting rubbish and other similar jobs.
[118] Exhibit A2, page 2 and Exhibit A3, page 7.
According to Ms S, the Applicant hardly ever sees his father.[119] She said his relationship with his stepmother is not good: they used to argue but now they are not in contact at all, they ignore each other.[120] The Applicant has an adopted brother who lives in Wollongong. This might be the person the Applicant referred to as an uncle who lives in New South Wales. Very little reference was made to this person.
[119] Transcript, page 72, lines 13 to 25.
[120] Transcript, page 72, lines 29 to 34.
Abdikadir and his family (his parents and grandmother) are friends with the Applicant and Ms S. I accept that the Applicant has reasonably strong social ties to Abdikadir’s family. Fatuma is also a friend of the Applicant and Ms S. I accept that the Applicant has reasonably strong social ties with her.
The Applicant’s strongest ties to the Australian community are to Ms S and her children. Presumably he has a positive relationship with Mr S too.
I have addressed the impact of deportation on Ms S’s children. There is no evidence about the likely impact on Mr S, although I am prepared to assume that he liked having the Applicant around and would miss him.
Around the time the Applicant was incarcerated Ms S had gestational diabetes, she felt stressed and overwhelmed because of the Applicant’s predicament, and she was referred to a psychologist and a social worker. She has had around eight sessions with the psychologist.[121] She said she will be broken if the Applicant cannot come back home to her. I accept that Ms S has assumed the role of the Applicant’s primary carer since he was very young, and they have a very strong emotional bond. I accept that if he is removed to Ethiopia the permanent separation will cause her severe emotional hardship (grief and loss). With respect to her unrealistic fear that the Applicant will be kidnapped or killed in Ethiopia, I am satisfied that it can be alleviated with counselling or by accessing credible media reports. I accept that she will still worry about the Applicant’s safety and ability to cope until he is able to establish himself. Ms S will continue to need help with her depression and anxiety. She has a psychologist and social worker, and Ms Welsh said there are services that she could realistically access – that are free and offer telephone counselling.[122]
[121] Transcript, page 77, lines 10 to 19.
[122] Transcript, page 111, lines 25 and 26.
Ms S said that, as Mr S works at night, she feels very alone in the house. She said she felt safer and more secure when the Applicant was there with her at night. I note that the Applicant was also working the night shift, so he was often absent when Mr S was absent. The Applicant intends to return to that job, meaning he could again be working the night shift. It appears that his continued absence, if removed to Ethiopia, would make little difference in this regard.
The Applicant did not only assist with the children and household chores, but he also provided company and some emotional support to Ms S, and she will be without this if he is deported. Ms S does not rely much on her father or step-mother. Ms S did not say that she could not take her children to her step-mother or that her step-mother would not help her with them. Her step-mother helped her when she went to hospital to have a baby and she described her relationship with her as good.[123] She said she does not tend to take her children to her step-mother’s home often because she does not have a yard whereas her friend has a yard and trampoline. She takes her children to that friend every Sunday.[124] This appears to be the same friend who has six children of her own, with whom Ms S sometimes leaves her children.[125]
[123] Transcript, page 72, lines 5 to 9.
[124] Transcript, page 83, lines 45 to page 84, line 4.
[125] Transcript, page 83, lines 25 to 40.
Fatuma is the community secretary for an Oromo community organisation, which is a social group. Ms S and the Applicant are part of this group. The group gets together for barbecues and they help each other at events like weddings and funerals. Fatuma considers that if the Applicant is not permitted to remain in Australia it will have a major impact on Ms S as he is someone she can rely on and who helps her a lot. Fatuma sleeps at Ms S’s house on weekends when she is free, which she said was quite often but not constant.[126] She helps with the children when she is there.[127] Ms S’s family also visits Fatuma.
[126] Transcript, page 91, lines 30 to 35.
[127] Transcript, page 91, lines 35 to 39.
Abdikadir said his parents and grandmother are close with Ms S and the Applicant.[128] They sometimes visit her and she speaks on the phone with his grandmother.[129]
[128] Transcript, page 94, lines 38 to 43.
[129] Transcript, page 96.
Dr Palk opined that the Applicant’s removal to Ethiopia would have a substantive detrimental impact on the Applicant’s parents, siblings, and extended family members that live in Australia, however he did not provide a basis for that opinion. Given the evidence that the Applicant does not have a close relationship with his father, he rarely sees his younger siblings, his mother has not lived in the same country as him since he was four years old, and his stepmother has little interest in him, I respectfully reject Dr Palk’s assessment. I find that the Applicant’s removal to Ethiopia would likely sadden the Applicant’s father but not to any great degree and it would have no impact on his step-mother. There is no evidence about his it might impact his relative in New South Wales, however I am prepared to assume that this person would be saddened.
Impact on Australian business interests
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)

Overall, this Other Consideration weighs heavily in favour of revocation of the cancellation of the Applicant’s visa.
CONCLUSION
Any real risk of repeated violent offending of the kind previously engaged in is unacceptable, and there is a real risk in this case. While the combination of Primary Consideration 3 and Other Considerations (b) and (d) weigh strongly in favour of revocation, they are not sufficiently compelling to outweigh Primary Consideration 1. Primary Consideration 4 adds further reasons not to revoke the cancellation of the Applicant’s visa. Consequently, there is not another reason to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 178 (one hundred and seventy-eight) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy

.............................[SGD]...........................................
Associate
Dated: 7 March 2022

Date of hearing: 8 and 9 February 2022

Solicitor for the Applicant:

Ms Carolyn Juratowitch

Hub Community Legal

Solicitor for the Respondent
Ms Claire Laizans

Minter Ellison

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

G1

Section 501 G-Documents (G1 to G33 paged 1 to 222)

R

-

20 December 2021

A1

Applicant's Statement of Facts, Issues and Contentions (paged 1 to 13)

A

17 January 2022

17 January 2022

A2

Applicant’s Bundle of Documents (1 to 7, paged 1 to 55)

A

-

17 January 2022

A3

Applicant’s Additional Bundle of Documents (1 to 3, paged 1 to 21)

A

-

2 February 2022

R1

Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 13)

R

28 January 2022

28 January 2022

R2

Respondent’s Supplementary Documents (S1 to S4, paged 1 to 119)

R

-

28 January 2022

ANNEXURE A - EXHIBIT LIST

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1 to G33 paged 1 to 222)	R	-	20 December 2021
A1	Applicant's Statement of Facts, Issues and Contentions (paged 1 to 13)	A	17 January 2022	17 January 2022
A2	Applicant’s Bundle of Documents (1 to 7, paged 1 to 55)	A	-	17 January 2022
A3	Applicant’s Additional Bundle of Documents (1 to 3, paged 1 to 21)	A	-	2 February 2022
R1	Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 13)	R	28 January 2022	28 January 2022
R2	Respondent’s Supplementary Documents (S1 to S4, paged 1 to 119)	R	-	28 January 2022