Nkani and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2022] AATA 1239

Nkani and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1239 (10 May 2022)
Division:GENERAL DIVISION
File Number(s): 2022/1330
Re:Takudzwa Nkani
APPLICANT

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

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:10 May 2022
Place:Sydney

The decision under review is affirmed.
.....................................[sgd].................................
Chris Puplick AM, Senior Member
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – previous cancellations considered – no issue of cancellation referring to previous convictions – Ministerial Direction 90 – protection of the Australian community – family violence – best interests of minor children – expectations of the Australian community – non-refoulement obligations claimed – fear of witchcraft in country of return – impediments to removal – impact on victims – strength, nature and duration of ties to Australia – decision affirmed
LEGISLATION
Crimes Act 1900 (NSW) s 114, pt 4
Migration Act 1958 (Cth) ss 499, 501, 501CA
Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth)
CASES
Bullmore v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1106
CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858
Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47
CVN17 v Minister for Immigration and Border Protection [2019] FCA 13
CZCV and Minister for Home Affairs (Migration) [2019] AATA 91
Do and Minster for Immigration and Border Protection [2016] AATA 390
Dunasemant v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 13
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19
FKP18 v Minister for Immigration and Border Protection [2017] FCA 1555
FYBR v Minister for Home Affairs [2019] FCAFC 185
Healey and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4309
Healey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 499
LRMM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2012] FCA 1039
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Minister for Home Affairs v Omar [2019] FCAFC 188
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48
QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394
Son and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2947
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tewhare and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2875
XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Australian Law Reform Commission, Recognition of Aboriginal Customary Laws (Report No 31, June 1986)
David F Martin, ‘Aboriginal sorcery and healing, the alchemy of Aboriginal policy making’ (2007) 33 Journal of the Anthropological Society of South Australia
Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Drug Court of NSW, 2020 Annual Review (Report) < Biri, and Molly Manyonganise, ‘Back to Sender: Re-Visiting the Belief in Witchcraft in Post-Colonial Zimbabwean Pentecostalism’ (2022) 13(49) Religions
United Nations, ‘Witchcraft killings of people with albinism have risen during the COVID-19 pandemic, says UN expert’ (29 July 2021) United Nations News: < FOR DECISION
Chris Puplick AM, Senior Member
10 May 2022

Mr Takudzwa (Taku) Valentine Nkani (also known as Jean Patrice Aime)[1] (the Applicant) has applied to this Tribunal asking it to effectively revoke a decision made by the Minister (the Respondent) via his delegate to cancel the Applicant’s current Class BW Subclass 856 Employer Nomination visa.[2]
[1] As will later be explained, this alias is the identity of another person which the Applicant appropriated.
[2] The Applicant arrived as a child included on his Mother’s Employer Nomination visa.
The cancellation decision was made pursuant to subsection 501CA(4) of the Migration Act 1958 (Cth) (the Act).
The Applicant is a citizen of Zimbabwe who is now 30 years of age. He arrived in Australia in January 2006[3] (aged 13 years) in the company of his mother and two stepsisters and has not departed Australia since that date.
[3] G-documents at 173.
It was the written and oral evidence of the Applicant’s mother that her husband remained behind in Zimbabwe and that she at least returns regularly to visit him there.[4]
[4] Statement of JM, undated.
The initial decision to cancel the Applicant’s visa was made on 8 April 2021[5] and thereafter, following consideration of representations by the Applicant that this decision be reviewed, the decision was affirmed on 14 February 2022.
[5] In respect of the current visa cancellation process only – as will be discussed, previous warnings and visa cancellations have been made.
On 4 December 2018, the Applicant was convicted, under the alias Jean Patrice Aime, of Commit s 114 offence,[6] having previous conviction; Enter building/land w/I commit indictable offence; and Goods in personal custody suspected being stolen (not m/v).
[6] Pursuant to section 114 of the Crimes Act 1900 (NSW), being armed with intent to commit indictable offence.
For these offences, the Applicant was sentenced to an aggregate term of three years imprisonment. The sentence was appealed, and on 10 April 2019 the sentence was varied to 18 months imprisonment.
This conviction led to the Minister determining that the Applicant had a “substantial criminal record” under the provisions of the Act.[7] A “substantial criminal record” is defined in the Act as any term of imprisonment for 12 months or more.
[7] Migration Act 1958 (Cth) (Act) ss 501(6)(a) and 501(7)(c).
This in turn led to the mandatory cancellation of his visa, and he was notified accordingly on 15 February 2022.
On 18 February 2022, he applied to this Tribunal for a review of that decision. The matter was heard on 28 and 29 April 2022 using the Microsoft Teams platform and in accordance with the Tribunal’s COVID-19 protocols. The Applicant was self-represented and appeared from the Christmas Island detention centre, the Minister was represented by Counsel. A third date of hearing was further listed on 3 May 2022 to hear closing submissions from both parties. On that date, the Tribunal and Respondent appeared by Microsoft Teams, with logistical difficulties at the Christmas Island detention centre resulting in the Applicant appearing by phone instead.
PREVIOUS APPLICATIONS
This is not the first occasion on which consideration has been given to the cancellation of the Applicant’s visa.
On 18 July 2012 the Applicant was advised by the Respondent that consideration was being given to cancellation of his visa under section 501 of the Act on character grounds.[8] It was the Applicant’s oral evidence that this letter was sent to his residential address at a time when he was in detention in the Bathurst Correctional Centre, and he did not find out about it in detail until he left custody some 6 weeks later. Thereupon he made representations (as invited) as to why this decision should be revoked.
[8] Consequent upon the Applicant being sentenced to a term of imprisonment of 15 months on 1 May 2012 related to a number of offences. At the time the mandatory cancellation provisions of the Act were not in place and so the matter was subject to a discretionary determination by the decision-maker.
After consideration of those representations, a delegate of the Minister wrote to the Applicant on 15 May 2014 that they had “made a decision not to cancel your visa on character grounds on this occasion.” That letter contained a “formal warning” to the Applicant that further offending on his part may lead to his visa being cancelled. There is evidence before the Tribunal which would support the Applicant’s claim that he never received this letter – it is stamped as having been returned to the Department in Melbourne on 21 July 2014 and the acknowledgement attachment to the letter is unsigned.[9]
[9] G-documents at 169-171.
When pressed about his knowledge of this particular correspondence and its import, the Applicant stated that he assumed, following at least one enquiry he made and subsequent lack of follow up, no further action was being taken in relation to any visa cancellation. He was however fully aware that consideration had been given to the cancellation of his visa.
In September 2014 the government introduced the Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth) which, for the first time, provided for a system of mandatory cancellations of visas where non-citizens had been convicted of a term of imprisonment of 12 months or more (pursuant to subsection 501(3A) of the Act).
On 6 September 2018 the Applicant’s visa was subject to mandatory cancellation as a result of the Applicant’s conviction on 8 September 2017 of certain break and enter offences which resulted in the imposition of a sentence of two years imprisonment. In determining that the Applicant failed the character test, the decision-maker also stated:
“The information based on which the decision maker was satisfied that you do not pass the character test is Sentencing remarks from the Local Court of New South Wales at Downing Centre on 01 May 2012.” [10]
[10] G-documents at 183.
The reliance upon findings made in previous cancellation decisions is a matter referenced below. However, in addition to reference to the May 2012 matter, there was a new basis for the mandatory cancellation arising from the September 2017 conviction.
In any event, the Applicant made representations about the cancellation decision and on 24 February 2020 a delegate of the Minister revoked the cancellation decision. In the letter notifying the Applicant of this revocation decision a warning was issued in the following terms:
“Warning: if you engage in further criminal or other serious conduct, this may again result in your visa being cancelled on character grounds.”[11]
[11] Ibid at 166 – bolding in the original.
On this occasion, the Applicant clearly received and understood the correspondence as he signed a statement to this effect on 24 February 2020.[12]
[12] Ibid at 168.
On 8 April 2021 the Respondent had cause to examine the Applicant’s visa status for a third time. On this occasion a second mandatory cancellation of the Applicant’s visa was a result of:
(a)a finding that he did not pass the character test because of his conviction on 4 December 2018 and the imposition of a three-year sentence, reduced to 18 months on appeal; and
(b)a finding that the Applicant was in full-time custody as a result of his conviction on 22 February 2021 of an assault charge for which he was sentenced to a term of imprisonment of 12 months.[13]
[13] Ibid at 174.
The reference to the December 2018 conviction and partial reliance upon it in making the cancellation finding may raise an issue determined by the Full Federal Court in the recent decision in XJLR.[14] In that matter the Court held that it was impermissible for a decision-maker to take into account certain matters which had been relied upon in an earlier cancellation decision. This involves the question of whether the 4 December 2018 conviction was before the decision-maker and taken into account by them in making the February 2020 revocation decision.
[14] XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6. The Commonwealth has sought special leave to appeal against this decision.
Nevertheless, the Tribunal does not think that this compromises the cancellation decision, not least reason being that even if the December 2018 conviction should not have been referenced, the February 2021 conviction and sentence would have triggered the mandatory cancellation under subsection 501(3A) of the Act.
THE BASIS OF THE REVIEW
In proceedings such as this the Tribunal is required to address two questions, namely:
(a)does the Applicant have a “substantial criminal record” and thereby fail the “character test” set out in the Act;[15] and
(b)if he does, is there “another reason” why the cancellation decision should be revoked?[16]
[15] Act ss 501CA(4)(b)(i) and 501(6)..
[16] Act s 501CA(4)(b)(ii).
In determining whether or not “another reason” exists, the Tribunal is bound[17] to have regard to the provisions of Ministerial Direction 90 (MD90)[18] as explained below.
[17] Act ss 499(1) and 499(2A).
[18] Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.
The answer to the first question is uncontested. The Applicant has been sentenced to a term of imprisonment of more than 12 months and so, by definition, he fails the “character test”.
Thus, the remaining task of the Tribunal, standing as it does in the shoes of the original decision-maker,[19] is to consider the evidence before it, including any evidence which may not have been before the original decision-maker,[20] and any representations made by the Applicant, to answer the second question.
[19] AFY18 v Minister for Home Affairs [2018] FCA 1566 at [9].
[20] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37].
Pursuant to paragraph 500(6L)(c) of the Act the Tribunal is required to make its decision by 10 May 2022 or else the decision under review is taken to be affirmed.
THE APPLICANT’S PERSONAL NARRATIVE
The Applicant has submitted a number of statements[21] to the Tribunal outlining his personal history and narrative and further details of these are to be found in his Personal Circumstances Forms dated 11 February 2020[22] and 5 May 2021.[23] Details of his personal narrative are also set out in statements from family members and were the subject of extensive oral evidence taken over the course of the hearing.
[21] Hand-written submission dated 21 March 2022, emails dated 1 April 2022 and 2 April 2022 and two undated written documents received 21 April 2022 comprising a two-page statement and a nine-page submission.
[22] G-documents at 98-110.
[23] G-documents at 82-97
In essence the Applicant states that he was born as a consequence of his 17- or 18-year-old mother being sexually assaulted by a teacher of hers and that he was then essentially looked after by his grandmother and an abusive grandfather. When his grandmother died he was moved around from place to place until taken in by an aunt (CG) and uncle (DG), but that once again he experienced abuse at the hands of this uncle. He also states that he was subject to physical abuse at school. Both he and his mother confirmed that, as a result of the circumstances of his birth they suffered a considerable degree of community hostility and stigmatisation.
The Applicant states (and his mother confirms) that the person who sexually assaulted his mother was a powerful person in their community and because he blamed her for the breakup of his own family, he accused the Applicant’s mother of being involved in witchcraft. As a result of this, and fearing physical harm, the family were chased out of their village.
Eventually, his mother (JM) migrated to Australia and he and his two stepsisters RM and TM, joined her about one year later.
At some time shortly thereafter his aunt and uncle (CG and DG) also migrated to Australia along with their daughter PG.
The two families then lived together in Kogarah, but the Applicant (then aged 16-17 years) again became the victim of his uncle’s abuse which resulted in the Applicant calling the Police and having his uncle charged.
The Applicant’s mother confirms that DG “used to abuse my son”.[24]
[24] Statement of JM, undated.
There are no details of this as the Applicant states that, despite reporting the matters to the Police, under severe pressure from his family he withdrew any charges, and the matter did not procced further. However, the families did separate and the Applicant, his mother and stepsisters moved to Bankstown.
The Applicant started school studies in Year 8 and successfully completed Year 10, gaining a certificate. He commenced Year 11 in a new school where he “found it very hard blending and fitting into the Australian culture to the point that [he] started to feel depressed and neglected.”
The Applicant states that he then dropped out of school and started to hang around with the wrong crowd of friends who introduced him to the use of alcohol and drugs and from there he fell into a life of petty crime commencing with his first offence in 2010.
At some time in or around August 2020[25] the Applicant entered into a relationship with TG, a First Nations Australian. It appears that this relationship was one marked by frequent arguments and recurring acts of physical violence perpetrated by both parties. In September 2020 TG gave birth to a daughter (SG) who is not the daughter of the Applicant.[26] The Applicant states that their “relationship was good but became toxic in February 2021”.[27]
[25] G-documents at 19 and 89.
[26]G-documents at 118. The Applicant claims that SG has been removed from the custody of her mother by the child protection authorities in NSW.
[27] G-documents at 89.
In February 2021 one of these confrontations resulted in an incident of family violence occasioning intervention by the Police who issued an Apprehended Violence Order against the Applicant and he was charged and convicted of an offence of assault (domestic violence) arising.
THE APPLICANT’S OFFENDING RECORD
The Applicant’s first offence was committed in 2010 when he was 18 years of age and just over four years since his arrival in Australia. The Applicant’s offending record is set out in the Respondent’s Statement of Facts, Issues and Contentions (SFIC at [11]) and detailed in the Criminal Record reports of the NSW Police Force and the Australian Criminal Intelligence Commission.[28] The Tribunal accepts the summary given by the Respondent in its SFIC and adopts it as follows (citations omitted):
[28] Respondent’s Tender Bundle (Tender Bundle) – NSW Police Material at 2-17; Australian Criminal Intelligence Commission report, G-documents at 32-37.
In summary, his criminal history between 2010 and mid-2018 comprises the following:
(c)on 4 May 2010, he was convicted of Break & Enter house etc steal value <=$15,000; Robbery in Company; and Resist officer in execution of duty. He received a 6-month suspended sentence was placed on a one-year bond;
(d)on 29 March 2011, he was convicted of Affray and two counts of Assault occasioning abh[29] in company of other(s). He was sentenced to 10 months’ imprisonment with a non-parole period of 4 months, and placed on a 2-year bond;
(e)on 6 February 2012, he was convicted of Aggravated enter dwelling w/offender in company and placed on 12 months’ probation;
(f)on 1 May 2012, he was convicted of Affray; Dispose property-theft=serious indictable offence <=$5000 and 2 counts of Break & Enter house etc steal value <=$60,000. He was sentenced to 15 months’ imprisonment and placed on a 2-year bond;
(g)on 4 July 2013, he was convicted of Goods in personal custody suspected being stolen (not m/v);
(h)on 19 August 2013, he was convicted of Steal from the person; Resist officer in execution of duty; Stalk/intimidate intend fear of physical / mental harm; and Affray. He received an 18-month sentence, but on appeal this was replaced, on 19 December 2013, with a 9-month intensive correction order;
(i)on 7 July 2016, he was convicted by the Parramatta Drug Court of the following offences: 2 counts of Break & Enter house etc steal value <=$60,000; Fail to appear in accordance with bail acknowledgment; and Resist or hinder police officer in the execution of duty. An aggregate sentence of two years was initially suspended, but the suspension was reversed on 8 September 2017 following the Applicant’s failure to comply with his Drug Court conditions. The applicant was later released on parole, but that parole was revoked on 17 January 2018; and
(j)on 22 May 2018, he was convicted of the offences of Have custody of an offensive implement in a public place; and Assault occasioning actual bodily harm. He was fined and placed on an 18-month bond.
[29] Actual bodily harm.

The next set of offences, as outlined above (paragraphs 6 and 20) resulted in the Applicant being sentenced on 4 December 2018 to a term of imprisonment of three years, reduced on appeal to 18 months.
On 15 September 2020, the Applicant was convicted and fined by the Local Court of NSW for the offence of Refuse/fail to comply with direction under Part 14.[30]
[30] Part 14 Crimes Act 1900 (NSW) Miscellaneous Offences.
The Applicant’s most recent conviction stems from events on 18 February 2021. On 22 February 2021, the Applicant was convicted in the Local Court of NSW of Assault occasioning actual bodily harm (DV) and was sentenced to 12 months imprisonment with a non-parole period of nine months. On appeal, the head sentence was not changed but the non-parole period was reduced to seven months.
DISCUSSION OF SELECTED OFFENCES
The Applicant’s record of offending is extensive and continuous over a prolonged period of time. Many of his offences involve acts of violence and several relate to resisting or hindering law enforcement officers in the performance of their duties.
The Tribunal is particularly concerned about three matters which carry considerable weight in its deliberations.
Domestic violence offence
The first of these relates to the domestic/family violence offence which took place on 18 February 2021. The Police report of this incident records:
“About 5:30 pm on Thursday the 18th of February 2021 the victim and the accused entered a taxi bearing New South Wales registration ......... near Broadway shopping centre near UTS in Ultimo. The victim asked to go to Zetland. The accused and the victim began arguing in the taxi while driving around Zetland arguing about personal matters. The accused asked the victim to stop arguing with him and the victim has kept arguing with the accused. As they were driving in the vicinity of Zetland the accused slapped the victim across the face causing a loud sound. This caused the witness to look in the rear vision mirror and he witness the victim repeatedly punching the accused in face. The accused and the victim both started punching each other around the face and chest which was observed by the witness …….
At this time the incident was viewed by numerous witnesses that observed the accused punching the victim three to four times in the face and torso followed by the victim punching and scratching the accused around his face and the torso using her fists and nails. Police were called to the location by onlookers who were witnessing the incident. Police observed the accused and the victim sitting in the back seat of the vehicle. Police observed the accused softly slap the victim across the face. Police asked the accused to get out of the vehicle to which he stated that that "We had a domestic violence incident and it happens all the time but that is why I love her" Police observed the accused had blood around his nose and scratch marks on the left side of his face. Police opened the off side door of the taxi and observed the victim with blood around her nose and mouth, red marks around her neck and right shoulders. Police spoke to the victim who stated that she had not done anything wrong and she was not going anywhere. Both parties refused to give basic details to police. Police have spoken to witnesses and who have advised Police about what had occurred. Police obtained statement s from the witnesses and observed a video recorded by one of the witnesses show both parties assaulting each other. Police arrested the accused and the victim in relation to the matter. Police conveyed the accused and the victim to Mascot Police Station where they have been introduced to the custody manager and read their part 9 right under the Law Enforcement (Power and Responsibilities) Act 2002. While in custody the accused stated on no less than 5 occasions ‘If i want to beat a woman I will beat a woman’. The accused sated ‘I'm sorry baby for beating your arse’. The accused asked the custody sergeant if he was going to get bail after speaking to the custody sergeant the accused stated ‘I don't even give a fuck bro. Look what I will do to her when I get out of here I will beat her arse’. The accused was offered the opportunity to be electronically interviewed in relation to the matter which the accused refused.”[31]
[31] Tender Bundle at 29-30.
In one of his statements the Applicant issues a flat-out denial that he ever made the remarks about beating a woman or beating her arse as alleged in the Police records. He writes:
“I never said that I would beat any woman I want.
I never said that if I get bail I would beat her ass if I was to be released and I don’t give a fuck (I never said that)”.[32]
[32] Applicant’s statement of 21 March 2022.
The Applicant emphatically repeated these denials in his oral evidence to the Tribunal.
The Tribunal is conscious of the warnings given in numerous cases about how to evaluate and assess the reliability or relevance of Police records where the authors of the record are not subject to cross-examination and where applicants contest or deny their accuracy.
In Healey the Tribunal stated:
72. In terms of the probative weight to be given to police records, this material routinely forms part of the evidence in mandatory visa cancellation cases. The documents are usually obtained under summons and do not assume the status of evidence until tendered and admitted. Their value is frequently tested during questioning. The Tribunal is not bound by the rules of evidence and although police records may not have been substantiated in court, there is nothing preventing the Tribunal from considering them under the chapeau of ‘other conduct.’ Witnesses must be afforded procedural fairness, however, by having the records put to them for response. It is not accepted that procedural fairness requires the authors of police records to be cross-examined for weight to be placed on these reports.[33]
[33] Healey and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4309.
In CVN17 Kenny J has pointed out, the Tribunal should treat “police service files” carefully and acknowledge the “limits of the material before it that was said to evidence such conduct, including its cogency and reliability”.[34]
[34] CVN17 v Minister for Immigration and Border Protection [2019] FCA 13 at [98]-[100].
Anastassiou J has similarly expressed the need for care about “reaching a view that criminal conduct has occurred, absent a prosecution and conviction”.[35]
[35] QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394 at [74].
Anderson J in Bullmore noted that:
there is no automatic, unqualified or universal rule as to when an administrative decision maker would be required to facilitate cross-examination of, or not rely on, material which emanates from a source that has not been tested by way of cross-examination in the Tribunal.[36]
[36] Bullmore v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1106 at [69].
Dismissal from the Drug Court programme
New South Wales operates an enlightened system of Drug Courts where offenders whose offending has been largely precipitated by their use of alcohol and other drugs are given an opportunity to enter into a controlled and managed programme in lieu of serving a custodial sentence. Those programmes are managed by NSW Health authorities[37] and require strict adherence to a treatment programme which is designed and tailored for each individual offender.
[37] Through the Justice Health and Forensic Mental Health Network.
On 7 July 2016 the Applicant was before the Drug Court on offences related to break, enter and steal. Senior Judge Dive considered that the Applicant would benefit from the programme and stated:
Mr Nkani you remember you received a two year sentence of imprisonment before the lunch break so I am now going to suspend that on your coming on to your Drug Court Program. Your treatment plan is for you to reside at the address in Wentworth Point, you will have the help of Western Sydney Local Health District, so they will be giving you counselling and also some group programs. You will have a case manager from Community Corrections. That officer will give you lots of support to do your Drug Court Program. You will be coming here to see us in the court room every Monday and Wednesday at 11 o’clock and also doing drug tests down at the Drug Court Registry every Monday, Wednesday and Friday. There are some appointments already organised for you. There are some special clauses; you must not have any alcohol, and no violence, so there are some special conditions in your program.
Mr Nkani, we do hope you can make a success of this, so we wish you well in this, there is a lot of hard work to be done, but we will give you a lot of support to move away from crime and drugs, that is the plan. I will ask Mr Bartels to take you down and meet our team in the Registry and we will see you back here in the courtroom on Monday but you’ll be doing a drug test on Friday and then coming here on Monday, all right.[38]
[38] G-documents at 49.
The evidence contained in various reports by the NSW Department of Corrective Services, and confirmed in cross-examination, establishes that the Applicant was initially admitted to a rehabilitation facility (Adele House) in Moonee Beach on 6 February 2017 but that he discharged himself from that facility on 13 February 2017.[39] He was then at liberty in the community on parole. On 28 February he was scheduled to be admitted to another facility (AAGANA) in Macksville[40] but according to his own testimony when he arrived there on 15 March 2017, he had some form of altercation in the car park with a staff member who allegedly threatened him, so he declined to enter the facility.
[39] Tender Bundle at 259.
[40] Idem.
It appears that, as a result the Applicant transferred to the John Moroney Correctional Centre.[41]
[41] Ibid at 260.
The Drug Court programme, with which the Tribunal is intimately familiar, is not an easy one to which to adhere, nevertheless it has a high rate of completion.[42] Unfortunately, the Applicant was not one of the Court’s success stories and in March 2017 a warrant was executed for his failure to comply with the Court’s conditions.[43] On 8 September 2017 he appeared before the Court and was transferred from the programme to parole but he breached this and the parole was revoked on 17 January 2018 with the Applicant returning to custody.
[42] Drug Court of NSW, 2020 Annual Review (Report): < Tender Bundle at 13; G-documents at 145-146.
The Aime offence
On 4 December 2018 the Applicant was before the Court for a series of offences primarily related to break, enter and steal for which he received an aggregate sentence of 18 months. In this instance he was before the Court as “Jean Patrice Aime”. There are several things to be noted about this. In the first instance the use of that name did not lead the Court to any conclusion about its origin.
Secondly, the use of the false name was not some spur of the moment activity but rather, as the Applicant subsequently admitted “used… to avoid arrest.”[44]
[44] Tender Bundle at 282.
Thirdly, the Applicant told the Tribunal in response to a direct question about how he chose such a name, that he had “made it up”. This is simply not true. Corrective Services (NSW) records demonstrate that Jean Patrice Aime was a friend with whom he shared accommodation.[45] In other words he stole the identity of another person/friend who was put to considerable inconvenience in attempting to clear his name of association with criminal activity and restore his own personal identity. Identity theft is a serious matter and makes victims of entirely innocent people. That the Applicant would take the details of his flat-mate, a person who describes him as “a friend” is all the more intolerable and reprehensible and bespeaks of a profound lack of personal character and integrity.
[45] Ibid.
EVIDENCE FROM WITNESSES
The Applicant called several witnesses to speak on his behalf. Those who attended and gave evidence had provided the Tribunal with a prior written statement.
The Respondent pressed the Applicant in cross-examination as to the extent to which there had been some co-ordination of the writing and typing of these statements. This line of questioning was based on the evidence that in one of the Applicant’s own submissions (AE4 – received 21 April 2022) the word slobber appears when the Applicant meant to write sober in multiple instances. This same unusual mistake, the use of the word slobber in place of sober then occurs in both the undated statement of the Applicant’s mother and twice in the undated statement of Thomas Platt. The matter was raised by the Respondent but did not form part of its closing submissions and the Tribunal has not seen fit to delve further into the matter.
Kirsten Barrett-Miller
Ms Kirsten Miller is a former partner of the Applicant and clearly has a residual degree of fondness for him and wishes to support him in his future endeavours. They have known each other for about ten years and were in a relationship for about five years finishing some two years ago. Ms Miller knew something of the Applicant’s criminal history but was not conversant with details of his latest (family violence) offence. She had visited the Applicant in gaol. She wrote to the effect that she did not believe the Applicant was violent towards women and described his recent partner (TG) as “toxic”. She was aware of the Applicant’s problems with drugs and alcohol and told the Tribunal that when the Applicant was drunk he would become verbally but not physically abusive. She believed that the Applicant’s principal problem was that he associated with the wrong people who encouraged his substance abuse which led to offending behaviour.
Ms Miller was a witness of credibility wo was direct and helpful to the Tribunal and clearly understood some of the problems faced by the Applicant which she believed he was capable of addressing.
Thomas Platt and Paul McCann
Messrs Thomas Platt and Paul McCann are both friends of the Applicant and have known him for some years. However, their contact with him in recent times has been limited. Both visited the Applicant in gaol, and both had only a limited degree of familiarity with the Applicant’s offending behaviour, especially his family violence offence. Both took the view that the Applicant’s main problem was association with the wrong sort of people but that away from that environment he was a good person. While not suggesting any improper collusion the Tribunal did note that Mr Platt writes that:
Taku is a genuine, friendly and honest person who just seems to get caught up in the wrong crowd at the wrong time.[46]
while Mr McCann also writes:
Taku is a genuine, friendly, passionate person who just seems to get caught up in the wrong crowd at the wrong time.[47]
[46] Support letter of Mr Thomas Platt, undated.
[47] Support letter of Mr Paul McCann, email dated 6 April 2022.
Both gentlemen were cross-examined by the Respondent and agreed that the Applicant had a serious drinking problem, but they would not describe him as an “alcoholic”. Both opined that the risk of the Applicant reoffending was small because he had “learned his lesson and wanted to change”. Neither had ever seen the Applicant behave violently. Both also offered to support the Applicant in some way were he to be released into the community although these were generally unspecific undertakings.
The Tribunal found both Mr Platt and Mr McCann to be genuine and honest witnesses, committed friends of the Applicant and people who have his best interest at heart.
Alpha Bangura
Mr Alpha Bangura gave evidence on the Applicant’ behalf and the Tribunal had the benefit of his written statement and some screenshots of conversations between him and the Applicant.
Mr Bangura was not a witness of credibility. He made claims before the Tribunal (under oath) that he had an ABN for the business he ran, that he was somehow the principal or director of a company called A&E Silicone Solutions and that while he had drunk with the Applicant, he had never seen him “off his face” or using drugs. None of these statements is true. Mr Bangura does not have an ABN, there is no company by that name and the direct evidence of the Applicant was that he and Mr Bangura used to get drunk together and take drugs together.
There is no doubting that Mr Bangura is a close friend of the Applicant, although his contact with him has been limited in recent years and he never visited the Applicant in gaol. The Tribunal has no doubt that were the Applicant to be released into the community he would find some degree of support from Mr Bangura but, given the overall lack of credibility of this witness, the Tribunal places no weight on any such assurances.
The Applicant’s mother and stepsister gave evidence over a rather shaky internet connection from Zimbabwe and provided written statements to the Tribunal.
JM and RM
JM (the Applicant’s mother) provided collaborative details of the Applicant’s family background although there was some degree of confusion as to the details of her own father’s demise. Her written support letter, read at face value would imply that he “lost his life” as a result of some degree of community assault on the family whereas her oral evidence suggested that he died of HIV, albeit as something of an outcast in his community. JM was direct and forthright answering difficult question about her relationship with her some which she admitted was “emotionally distant”. She had never had the opportunity for her son to live with her until the family arrived in Australia and then, on more than one occasion she had told the Applicant to leave the family home because his behaviour (under the influence of alcohol and drugs) had become unacceptable.
She had limited knowledge of the full extent of the Applicant’s offending and had deliberately eschewed from visiting him in gaol. In relation to the family violence offence she stated that she “could not downplay (it) as a serious offence”.
The Respondent pressed JM in some detail about comments made by both the Applicant and herself as to threats against the Applicant (including threats against his life) which might materialise if the Applicant were sent back to Zimbabwe. In essence, these amounted to concerns about the practice of witchcraft in traditional societies and the genuine fear which people can hold about being subject to the imposition of spells, taboos and curses in relation to their physical wellbeing. JM herself revisits Zimbabwe on a regular basis and has done so over the past 16 years. The primary purpose of her visits are to maintain contact with her husband (MM) although she describes conditions in Zimbabwe as “horrible” and says that it “has gone from bad to worse” since the collapse of the Mugabe regime.
Overall the Tribunal formed a very positive view of JM. She was honest and forthright and did not attempt to avoid answering difficult and often highly personal questions. She is obviously concerned for her son. She believes he has the capacity to change for the better. She is prepared to welcome him back into her home should he be released and she has great sympathy for the difficulties of his early childhood and teenage years.
RM is the Applicant’s stepsister. Like her mother, she was a witness of great integrity and was prepared to answer difficult and personal questions in a direct and detailed fashion. She agreed that the relationship between JM and the Applicant was often a “difficult” one and that fault lay on both sides. She knew a great deal about the Applicant’s personal life, describing Ms Miller as a very good and positive influence on him and TG as toxic. She did not know a great deal about the Applicant’s offending behaviour, nor about all the times he had been incarcerated. She had not visited him in gaol but had done so in the Villawood detention centre.

She was able to give some corroborative details about the Applicant’s early life and indeed advised she had originally been told that he was her “cousin” rather than her stepbrother. This was confirmed in JM’s testimony and is noted in a Community Corrections report.[48] She had been out of contact with him for a period of some seven years when she returned to live in Zimbabwe (with her sister) and this had contributed to her lack of knowledge of most of his offending record.
[48] Tender Bundle at 150.
She described her stepbrother as suffering from a “victim mentality” and with a tendency to resort to the use of illicit substances “when things get hard”. She was not aware of any violent behaviour on his part but confirmed that abusive verbal arguments often took place in the home.
As with JM, the Tribunal accords a high degree of credibility to her written and oral testimony, although her understanding of some of the social conditions in Zimbabwe (such as levels of life expectancy and unemployment) were not well grounded.
MINISTERIAL DIRECTION 90
The Direction commences with a Preamble which applies to all parts of the Direction and establishes a number of guiding principles which provide a framework within which decision-makers should approach the task of deciding whether to affirm or set aside a decision made under subsection 501(2) of the Act.
In particular, the Direction provides inter alia that:
·being able to come to or to remain in Australia is a privilege conferred 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;
·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;
·there is an expectation that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in conduct that raises serious character concerns, regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community; and
·Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community for a short period of time.
Sub-paragraph 8.1(2) of Part 2 of the Direction starts with a general instruction for a decision-maker to consider the “nature and seriousness of the conduct”.
In terms of the “nature and seriousness of the conduct” the decision-maker is obliged to consider the extent to which the conduct involves crimes of a violent or sexual nature, crimes against women and children and acts of family violence. The decision-maker must also (inter alia) consider the frequency of the offending behaviour and whether it displays and trend of increasing seriousness, the cumulative effect of repeated offending and whether an individual has received prior warning about the consequences of further offending.
The Direction then elucidates four primary considerations which should generally be given greater weight than the other considerations:
·protection of the Australian community from criminal or other serious conduct;
·whether the conduct engaged in constituted family violence;
·the best interests of minor children in Australia; and
·expectations of the Australian community.
It is worth noting that the issue of “family violence” was introduced into MD90 as a major addition from the set of criteria which existed under its predecessor Ministerial Direction 79. This reflects a clear statement of government/public policy that crimes of family/domestic violence and violence against women or vulnerable people are to be regarded as matters of exceptional seriousness.
Section 9 of Part 2 of the Direction provides that other considerations must be taken into account where relevant, which include (but are not limited to):
·international non-refoulement obligations;
·extent of impediments if removed;
·impact on victims; and
·links to the Australian community, including:
ostrength, nature and duration of ties to Australia; and
oimpact on Australian business interests.
The Tribunal is required to consider each of the items. However, it should be noted that there is ample High Court authority for the principle that it is up to the Tribunal itself to assess the weight which should be given to each of the respective criteria. Explicitly, the Court stated in SZJSS that: “[t]he weighing of various pieces of evidence is a matter for the Tribunal.”[49]
[49] Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [33]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41.
Once weight is assessed for each criterion, where there are competing assessments, and a balance to be arrived at, it becomes a matter of the Tribunal engaging in a process of “calculus” [50] to arrive at a final determination.
[50] Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47 at [52].
In determining the “weight” to be given to each of the criteria, the Tribunal assigns:
·“neutral” weight where the criterion counts neither for nor against the Applicant;
·“limited” weight where the criterion counts one way or another but not to any great extent and where evaluation is finely balanced but just falls on one side or the other;
·“moderate” weight where the criterion counts one way or another but it is clear that the evaluation falls on one particular side; and
·“significant” weight where the criterion counts one way or the other very heavily (and in some cases definitely) on one particular side.
Protection of the Australian Community
The Tribunal must 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.
This was the criterion upon which the Respondent placed most emphasis and in essence it advanced the proposition that the seriousness of the Applicant’s offending was at the higher end of the range and that circumstances related, in particular to his alcohol and drug use, suggested that the likelihood of his reoffending was considerable.
There can be no doubt that the Applicant’s offending record is serious. It started in 2010 which was four years after his arrival in Australia and spans more than a decade thereafter. It has shown a degree of increasing seriousness in terms of the offence committed, although there is a litany of offences involving acts of violence. He has served five separate terms of imprisonment and has at least six incidents of having breached bail or intensive correction or AVO requirements[51] and committed further offences while on parole. He has absconded interstate.[52] He has stolen and used another person’s identity.
[51] Tender Bundle at 347-370.
[52] G-documents at 144.
On two occasions, the details of which were known to him, the Australian government has threatened to cancel his visa and then given him and second and third chance to become a law-abiding member of the community. He displays an utterly cavalier approach to this matter as a Corrective Service report records:
“Taku has reported that his Visa has been cancelled due to current sentence, and understands he is likely to be deported. Taku has taken this in his stride stating it?s not the first time this has occurred and each time (possibly 6 other times) he has been sent to Villawood and then lodges an appeal and has been successful in being able to remain in the country. When asked if he feels he will be successful this time he reported that he will accept whatever the outcome as it is the way it should be. Taku can appear very philosophical around his life story and journey. Taku reports that he will not make an appeal on his visa whilst in custody as this allows him more time in the country as the process takes time.”[53]
[53] Tender Bundle at 317.
None of the repeated chances which he has been given, by way of visa cancellation revocation, parole, Drug Court programme or intensive corrections order have been taken seriously or have prevented the Applicant from serious reoffending. Nor have any of the courses which the Applicant states he has undertaken in gaol or elsewhere.[54]
[54] Ibid at 321; G documents at 157-159.
The “salutary effect of the cancellation of his visa”[55] which is apparent in many other cases appears to have had no effect here.
[55] Healey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 499 at [16].
His Intensive Correction Order Assessment Report by NSW Community Corrections, dated 16 December 2013 hearing date evaluates the Applicant as at a “medium” risk of reoffending,[56] whereas this has been raised to “medium/high” in a similar report of 10 May 2016.[57] He then had an assessment which reverted this risk of reoffending back to “medium” on 9 April 2019,[58] but this is in relation to the period of time in which he was identified as Mr Aime and cannot be taken as valid.[59]
[56] Tender Bundle at 357.
[57] Ibid at 366.
[58] Ibid at 373.
[59] While it does suggest the assessor is aware of the Applicant’s true identity, it must be noted that this particular report does not make any clear reference as to earlier offending. Therefore it cannot be determined by this Tribunal whether the persons undertaking the assessment were privy to the full scope of the Applicant’s history.
Clearly there is an underlying aetiology for the Applicant’s offending which relates to the misuse of alcohol and other drugs. By his own admission these have included marijuana, speed, “ice”, cocaine and MDMA.[60]
[60] Tender Bundle at 230-246.
The Applicant claims that he is “still addicted to drugs and alcohol and it’s very hard for me to quit”.[61] On the other hand he insisted under cross-examination that he could drink moderately and not become drunk, which was also the evidence of one of his friends. The Applicant made a significant submission that if given the opportunity he would embark on a course of medication based on the use of Acamprosate (Campral) and/or Naltrexone to overcome his “drinking problem”.[62] Unfortunately he misconceives both the therapeutic use of these medications and the fact that they require complete abstinence to start to have any effect at all.
[61] Applicant’s Statement dated 21 April 2022.
[62] Attachment to Applicant’s Statement dated 1 April 2022.
There is no medical diagnosis to support the proposition that the Applicant has a clinical diagnosis or dependency on alcohol as distinct from being what he describes as a “binge drinker” who regularly got “wasted”.[63] Similarly, the Tribunal cannot import into the Applicant’s narrative and needs a finding that he has a health issue which needs to be addressed in these findings.[64]
[63] Applicant’s statement dated 1 April 2022.
[64] LRMM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2012] FCA 1039 at [25]-[28].
The Applicant has made several attempts to “get clean” and was accorded a particular opportunity through the Drug Court programme. None of his efforts have succeeded and all have been vitiated by the Applicant’s failure to take advantage of opportunities presented.
The Applicant has repeatedly stated his regret for his offending behaviour and has, to his credit, not sought to deny the history of offending; albeit perhaps minimising the full extent of it in doing so.[65]
[65] G-documents at 136.
His stepsister in her evidence referred to the Applicant having a “victim mentality” and that is borne out in his own statement to the effect that:
“*I have shown numerous times that I have difficulties in the community when it comes to my identification, alcohol and drug addiction, mental health and stability .
*I have been given so many chances to rehabilitate myself and I agree to that but I need ongoing support and the appropriate solution to my problems.
*If the courts asks me, Why should I be given a chance when I have been given soo many chances before I would reply by stating the following.
*I STATED in my previous submissions of 2018-2020 that I need help in the community if I was to be released back into the community but I did not receive any form of help except for centrelink.”[66]
[66] Applicant’s Statement dated 21 April 2022.
This is manifestly not the case and ignores all the assistance that was available to him through the Drug Court and the Community Corrections supervisory programme. It also ignores the genuine help offered by members of his family, which he elsewhere recognises.[67]
[67] Ibid.
There cannot be any safe conclusion other than that the Applicant has committed numerous series crimes of increasing intensity, many of which involved acts of violence. The Tribunal accepts he has made several efforts at rehabilitation, but all have failed and there is no reason to believe that there is a prospect that this situation will change.
The Applicant is at a high risk of reoffending and those reoffences are likely to pose a significant danger to members of the Australian community.
The Tribunal regards this criterion as counting against the Applicant to a significant degree.
Family violence
The Tribunal has discussed above the details of the Applicant’s offending and the circumstances of those offences.
The Tribunal is given guidance by MD90 as to the factors which it should consider in assessing risk in relation to this matter. The Direction states (at sub-paragraph 8.2(3)):
(3) In considering the seriousness of the family violence engaged in by the non citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person's last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non-citizen’s migration status should the non-citizen engage in further acts of family violence.
In terms of evidence family violence acts there is only one incident before the Tribunal for consideration, that which occurred on 18 February 2021 as described above. This involved an incident in a taxi resulting in a physical altercation between the Applicant and his partner (TG). It should be noted that the Applicant was legally represented in these proceedings, he pleaded guilty and there was no challenge raised to the Police Facts as tendered to the Court. In the sentencing remarks, Magistrate Williams said:
With Mr Nkani's history I do note he does have some matters of violence. He has a number of other type of offending offences on his criminal history. The Court must be concerned as to his continuing offending. I note matters that Mr Harris has addressed on in relation to his needs. In looking at the facts it is clear that the elements of this offence have been made out, it is also clear that there was a reasonable amount of violence from Mr Nkani to the victim in this matter. The victim has also highlighted in the facts as to what appears to be some violent acts upon Mr Nkani. The Court needs to denounce the actions of Mr Nkani in relation to domestic violence offences and also impose an appropriate penalty that acts as a deterrent to Mr Nkani and also to other members of the community in committing these types of domestic violence offences.[68]
[68] G-documents at 39-40.
The learned Magistrate sentenced the Applicant to a term of imprisonment of 12 months with a non-parole period of 9 months and then added:
It is hoped that when he is released and on parole that actions will be taken in relation to his needs and issues with regards to drugs and alcohol and also domestic violence if they could be addressed. Mr Nkani, that completes your matter.
ACCUSED: Thank you, your Honour, I appreciate it.[69]
[69] Ibid at 40.
The Tribunal notes that the Applicant’s legal representative did not challenge the version of events as produced by the Police and, as such, is inclined to accept that the Applicant said the threating words about his attitude towards violence against women which have been outlined above, despite his subsequent denials. This conclusion is reinforced by the Applicant’s own statement to the effect that:
“While at the police station we kept on talking to each other an also argued abit [sic] so the police officer decided to put an Avo against each other. We did not ask for an Avo but I understood that the officer put the Avo just to keep us safe in case our arguing continued further on.”[70]
[70] Applicant’s Submissions dated 21 April 2022; Details of the AVO (3 March 2021 to 2 March 2023) in Tender Bundle at 22.
Although this is the only incident which resulted in the Applicant appearing before the Court, the Tribunal notes that there is a record of his mother reporting that the Applicant “was increasingly violent in his manner at home having disputes with the family”[71] and while his previous partner (Ms Miller) writes that “I can honestly tell that he is not violent towards women”,[72] her oral evidence was to the effect that the couple often had abusive verbal arguments resulting in what she described as “pushing and shoving on both sides”.
[71] Tender Bundle at 150.
[72] Statement of Kristen Barrett Miller, undated.
The Tribunal is satisfied that the Applicant has committed acts of family violence and that, in line with the gravity of this offence identified in the Ministerial Direction, this counts significantly against the Applicant.
Best interests of minor children
The Applicant has no biological children of his own, however he has identified a number of minor children with whom he claims some degree of relationship.
Family members
There are two minor children of CG and DG who are his cousins, although the Applicant describes them as his nieces.[73] His cousin PG is now an adult and has two children of her own.
[73] G-documents at 107.
The cousins are identified as HG, EG, VG and AG.
HG and VG are the younger sisters of PG while EG and AG are her children.
The Applicant has provided contradictory evidence about their dates of birth. In his Personal Circumstances Form (dated 11 February 2020) he does not list AG but gives birth dates as follows:
[HG]     7 November 2009
[VG]     25 February 2013
[EG]     5 September 2017.[74]
[74] Ibid.
In a submission dated 19 December 2021 he gives:
[HG]     25 February 2008
[VG]     7 November 2021
[EG]     5 September 2017
[AG]     13 October 2021.[75]
[75] Ibid at 122.
There are clearly discrepancies in the Applicant’s accounts which derive from a combination of not remembering and simply mistaken writing down of dates or transposing figures.
The Tribunal sought to elucidate some more certain dates of birth from other members of the family, and on the basis of that evidence accepts that HG was born in 2008 and VG in 2012.
Nevertheless, even if the Tribunal gives the Applicant the benefit of any doubt and accepts that all four cousins are minors, there is scant, if any evidence of the Applicant playing any meaningful role in their lives. At best there is a statement from the Applicant to the effect that:
“[HG] and [VG] are my aunty’s children… I have watched them grow since birth and the love I have for them is priceless. They see me as their big brother because I am the only son in my whole family. When I was in the community I used to visit them at least twice in a week and they used to cry when I leave to go home.”[76]
[76] Ibid at 105.

There is no corroboration of these claims from any of the family members including the parents of the children and his relationship with the children is not mentioned in the letters of support provided by his Mother and his cousin PG.
In oral evidence it was established that the Applicant has never actually met EG and AG although he may have spoken a few words to them on the telephone when he was speaking to their mother PG.
In relation to HG and VG it was the Applicant’s oral testimony that he last saw them some four to five months prior to his latest incarceration and had only spoken to them on the phone from prison/immigration detention on an occasional, irregular basis.
There is simply no evidence before the Tribunal to establish any degree of meaningful relationship between the Applicant and these minor cousins, the youngest two of whom may well have been born after he was most recently incarcerated.
SG (Daughter of TG)
SG (born 1 September 2020[77]) is the child of the Applicant’s former partner TG. Whatever contact the Applicant had with this child was restricted to the period between September 2020 and February 2021 when the couple split after the domestic violence incident referred to above.
[77] Ibid at 90.
There is no reliable evidence to suggest that the Applicant has any plans for future engagement in this child’s life. Although some suggestion exists that the Applicant wanted “to fix” his relationship and get back together with TG[78], there is equally compelling evidence that he has no idea what TG wants[79], that he admits to the authorities that “relationship can get physical and Taku states that he is not bothered if the relationship remains or not”[80] or that “he plan(s) on staying single”.[81]
[78] G-documents at 89.
[79] Ibid at 122.
[80] Tender Bundle at 317.
[81] Ibid at 329.
In correspondence with the Tribunal (dated 2 April 2002) the Applicant describes TG and her mother as “two of the most toxic women I have ever met in my whole entire life” and he goes on to say “people told me numerous times to leave and not be part of that family… I was stupid enough to even think that I could have a future with her…”
Furthermore, he has no idea where TG resides at the moment and he goes further to indicate that it is his understanding that SG has been removed from her care by the NSW child protection authorities.[82]
[82] G-documents at 118.
The Tribunal has no difficulty in coming to a conclusion that the Applicant has no intention of resuming any sort of meaningful relationship with TG, nor that there is any prospect of his playing any role whatsoever in the life of SG.
There is always a remote possibility that were the Applicant to be returned to the community he might establish some sort of avuncular relationship with his cousins and the Tribunal should not discount this possibility.
In terms of this criterion the Tribunal finds that it counts in favour of the Applicant but only to a limited degree.
Expectations of the Australian community
Sub-paragraph 8.4(1) of the Direction provides that:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a non- citizen to enter or remain in Australia.
Sub-paragraph 8.4(2) also provides that non-revocation of the cancellation of a non-citizen’s visa may be appropriate simply because the nature of the character concerns or offences committed is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
That norm referred to in the Direction is to be understood as providing that:
·the Australian community expects non-citizens to obey Australian laws while in Australia;
·where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk they may do so, the Australian community expects the Australian Government to not allow such a non-citizen to enter or remain in Australia; and
·non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person not continue to hold a visa.
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 (sub- paragraph 8.4(3)).
This consideration is about the expectations of the Australian community taken as a whole, and in this respect, decision-makers are required to proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (sub-paragraph 8.4(4)).
This consideration has been the subject of extensive judicial discussion which is ultimately determinative.[83] That is, it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. The expectations of the Australian community that decision-makers are required to consider are those set out in MD90 at paragraph 8.4. Although these principles are discussed in relation to the former MD79, those principles are relevantly analogous in principle with respect to MD90.
[83] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75] per Charlesworth J.
It has further been held that the consideration is “[i]n substance … adverse to any applicant” in virtually all circumstances and was indeed, designed to be so.[84]
[84] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76] per Mortimer J.
There is nothing before the Tribunal which would allow it to do anything other than to accept that this criterion weighs against the revocation of the cancellation decision.
In terms of the offending record of this Applicant and the Tribunal’s conclusions about his risk of reoffending the Tribunal considers that this criterion counts against the Applicant to a significant degree.
“Other” considerations
Having considered what the Direction designates as “primary” considerations, the Tribunal must turn to those designated as “other”. As Colvin J has made clear in Suleiman that:
[t]o treat the other considerations as secondary irrespective of its character in this particular case does not conform to the language of Direction 65.[85]
[85] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [28]. Ministerial Direction 65 was a precursor of MD90 and was operative from 23 December 2014 to 28 February 2019.
His Honour made it clear that the weight of “other” considerations could, in appropriate circumstances, overbear the weight of the primary considerations to the advantage of the Applicant.[86]
[86] Ibid at [26].
Colvin J’s statement was considered and not disapproved by the Full Federal Court in HSKJ[87] and more clearly supported by Wigney J in FHHM. [88]
[87] Minister for Home Affairs v HSKJ [2018] FCAFC 217 at [31]-[35].
[88] FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775 at [21].
This principle has been affirmed in a number of Tribunal cases,[89] for example being made explicit in CFHQ where Deputy President Redfern, referencing Suleiman stated:
…factors set out in Direction 65 as ‘other considerations’ should be given appropriate weight, which may, in some cases, outweigh the primary considerations.[90]
[89] Son and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2947 at [131]-[137].
[90] CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858 at [88].
In Tewhare the Tribunal made it clear that:
While affording to primary considerations more weight than the other considerations is generally the case, I am not precluded, in the context of any particular matter, from giving equal or greater weight to any consideration. As such, in an appropriate case, other considerations may, for instance, be given more weight than primary considerations.[91]
[91] Tewhare and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2875 at [50].
In CZCV the Tribunal stated:
When read in light of the Full Court’s comments in HSKJ, in the Tribunal’s opinion, it would be correct to state that although the Tribunal cannot elevate an other consideration to become a primary consideration, it can give greater weight to an other consideration over a primary consideration.[92]
[92] CZCV and Minister for Home Affairs (Migration) [2019] AATA 91 at [164]. As noted above, Ministerial Direction 65 (effective 23 December 2014 to 28 February 2019) is an analogous predecessor of Ministerial Direction 90 and the relevant parts are expressed in the same terms.
The Full Bench of the Federal Court gave specific reconsideration of the reasoning in Suleiman in its recent determination in FHHM where it said[93]:
[34] The point made in Suleiman was that the other considerations referred to in the direction were not inherently secondary and were not secondary in all circumstances. Generally, the primary considerations were such that they were to be given greater weight. However, particular circumstances may pertain that may justify greater weight being given to one or more of the other considerations than one or more of the primary considerations. It may be noted that the reference in Suleiman to an inquiry as to whether the case is outside the circumstances that generally apply should not be read as requiring an inquiry as to whether there was something about the nature of the case of the person wanting to maintain their status as a visa holder that was unusual or uncommon or out of the ordinary. Rather, the question was whether there was some reason why the general circumstance where the primary considerations should be given greater weight than the other considerations should not apply when it came to weighing the various considerations that were relevant to the particular case.
[39] …the reasons in Suleiman are not dealing with the weight to be given as between primary considerations. They are dealing only with the relative weight as between other considerations and primary considerations.
[40] …the final sentence in [23] of Suleiman… is dealing with two possibilities. First, one or more of the other considerations being treated as a primary consideration. Second, one of the other considerations being afforded the greatest weight of all the considerations (including primary considerations).
[93] FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19.
Non-refoulement obligations
The Respondent states (SFIC at [88]):
“The Applicant has not made any claims which require assessment in relation to Australia’s international non-refoulement obligations, nor does the other available evidence indicate that such an assessment is necessary in this case.”
The Tribunal accepts this proposition although it notes that the Applicant has expressed a degree of concern about the consequence of his possible removal to Zimbabwe where he says he would be in danger of physical violence that could lead to his death. These concerns will be addressed in terms of the potential impediments if the Applicant is removed.
Suffice to say that the fears expressed by the Applicant do not relate to the “specific type of harm” which is outlined in paragraph 9.1(1) of the Direction which grounds this specification of harm in the international instruments which are listed in that section.
As a result, the Tribunal concludes that this criterion counts neutrally in relation to the Applicant.
Extent of impediments if removed
There are a number of factors which need to be considered in relation to this criterion. Initially it should be noted that the Applicant is a relatively young man, he is physically fit with no diagnoses of significant physical or mental health problems.[94] He grew up until the age of 13 years in Zimbabwe and thus has some understanding of the culture and mores of that country. He speaks excellent English and some Shona, although he says (understandably) his level of fluency has declined over recent years. Nevertheless, he would be able to revive his understanding of the language if required to speak it more often.
[94] G-documents at 95.
Both JM and RM drew attention to the comparative disadvantage of living in Zimbabwe compared with living in Australia. However, the relevant comparator here is not the difference between services or supports available tin Australia as compared with those in Zimbabwe, but rather the extent to which the Applicant, if returned there, would be on equal footing with other comparable citizens of that place.
The latest Department of Foreign Affairs and Trade Country Report – Zimbabwe is dated 19 December 2019. It records, inter alia:
“[2.16] Very little primary data exists on employment in Zimbabwe. Different sources place the unemployment rate as low as 4 per cent and as high as 95 per cent. It is clear, however, that the majority of the labour force that participates economically does so in the informal economy, including many Women and Children. A January 2018 IMF study found that the informal Zimbabwean economy averaged 60.6 per cent of the total economy between 1991 and 2015, accounting for 44 per cent of Gross Domestic Product (GDP), and that Zimbabwe had the third largest informal sector in the world, behind only Georgia and Bolivia…
[2.31] Zimbabwe’s long-running economic and political crises, coupled with the long-running HIV/AIDS crisis and other major disease outbreaks including cholera and measles epidemics, have had a significant impact on the health system and on health outcomes overall. In 2018, life expectancy for men and women was 59 and 63.2 years respectively after reaching a low in 2006 of 34.4 years for men…
[2.32] The HIV prevalence rate has dropped from approximately 29 per cent in 1997 to around 15 per cent currently. Nevertheless, it remains among the world’s highest and continues to suppress the country’s life expectancy rate…
[2.36] In-country sources report that drug and substance abuse is increasing, particularly for unemployed youth. Major abused substances include glue, petrol, cough mixture, alcohol, and cannabis. Treatment and rehabilitation facilities are limited, are mainly provided by NGOs rather than the state, and are often beyond the means of ordinary citizens. Periodic consultations between government and other stakeholders to discuss possible solutions have not resulted in any formal national approach to addressing the issue of substance abuse.”
Although not ideal in any way, these conditions are outlined in the DFAT report do not lend support to any proposition that the quality of life in Zimbabwe is so dire that to repatriate a citizen to that country would put their life, health or general wellbeing at significant risk. The Tribunal accepts that health services may not be comparable to those in Australia but as already noted, this is not the relevant comparator and there is no submission by the Applicant that he actually has significant needs for health services.
In addition, repatriation would allow the Applicant to obtain a National Identity Card, the absence of which he has advanced as a major detriment to him in Australia and although it would not be used for Australian purposes it would give the Applicant the ability to function within Zimbabwean society and if necessary, travel outside that country.
The principal reasons advanced by the Applicant why he should not be returned to Zimbabwe concerns his fears that his father (or father’s family) would seek to do him harm. He has made this claim on several occasions.[95] This was a claim of potential harm which was not raised by the Applicant as a non-refoulement obligation. In Omar the Full Federal Court made clear that:
Giving meaningful consideration to a clearly articulated and substantial or significant representation on risk of harm independently of a claim concerning Australia’s non-refoulement obligations, requires more than the Assistant Minister simply acknowledging or noting that the representations have been made. Depending on the nature and content of the representations, the Assistant Minister may be required to make specific findings of fact, including on whether the feared harm is likely to eventuate, by reference to relevant parts of the representations in order that this important statutory decision-making process is carried out according to law.[96]
[95] G-documents at 96, 110 and 139; Applicant’s Statement dated 21 April 2022.
[96] Minister for Home Affairs v Omar [2019] FCAFC 188 at [39], citations omitted.
Taking as a starting point that there is no evidence as to whether the Applicant’s father is dead or alive, there is also the question of how his father (if alive) would become aware of his son’s return and seek after all the years to inflict harm upon him. The Tribunal understands that the Applicant’s father lives in Harare (a city of over two million inhabitants) and there is no reason the Applicant could not live in another part of the country. Moreover, this fear of harm derives exclusively from what the Applicant has been told by his mother (who certainly suffered accusation of witchcraft against her, causing her to leave her home in fear) and the Applicant has no direct personal basis for holding these trepidations.
Nevertheless, the Tribunal does not agree with the Respondent’s somewhat dismissive approach of the Applicant’s fear of spiritual (and other) harm through the practices of witchcraft. This displays a lack of cultural sensitivity which the Tribunal does not share.
For example, recent reports by the United Nations have drawn attention to the witchcraft killing of people with albinism.[97]
[97] United Nations, ‘Witchcraft killings of people with albinism have risen during the COVID-19 pandemic, says UN expert’ (29 July 2021) United Nations News: <>
An article in the internationally peer-reviewed journal, Religion states:
Witchcraft Beliefs among the Shona: Gordon Chavunduka has studied witchcraft among the Shona people extensively. The Shona people constitute the largest tribal group in Zimbabwe and they comprise a number of divergent ethnic groups such as the Zezuru, Karanga, Manyika, Budya, and Korekore, among others. Chavunduka (2004) points out that witchcraft is one of the most disdained practices among the Shona: the children of witches are mocked and have a difficult time finding a marriage partner. Witchcraft is perceived as one of the major causes of retrogression in every aspect of life. The religious practitioners (n’anga) were, therefore, at the centre of rituals that not only protect individuals, families and communities from evil but also get revenge by sending back the ills intended for the victims by witches. Revenge is perceived as the best way to teach the witches lessons by enabling them to taste their own medicine, and it is also seen as a defence mechanism by the intended victims. Some of the ills that are believed to be caused by witches include; loss of wealth, deaths, sickness, barrenness, bad luck and failure to get a marriage partner. Singlehood and celibacy are not celebrated in most African indigenous cultures because of perceived evil spiritual causation that prevents the most cherished institution of marriage and, subsequently, procreation. If a family becomes vulnerable to attacks, rituals are carried out and incantations are made to the ancestral spirits. They confront the ancestral spirits, demanding protection (kutuka midzimu) (Gombe 1986). The traditional healer (n’anga) mediates in rituals for protecting the individuals and the home (musha) (kudzivirira musha). In some cases, they perform rituals to trap the witches (kuteya varoyi) in order to humiliate them and discourage them from the evil acts. The rituals vary according to families and places because the Shona are not a completely monolithic group, in spite of the commonalities that run through their beliefs and practices. It is important to point out that issues of singlehood and celibacy as important in Pentecostal theology, sermons and deliverance rituals due to the strong belief that bad spells could have been cast on the victim. This extends to marriage breakdown, infidelity in marriage, and anything that causes marital instability. These beliefs inform the popularity of deliverance sermons, sessions and artefacts such as bangles, posters, anointing oil, and seeding into the life of the man of God in order to get protection, deliverance and progress in life. This quest for deliverance, protection and progression is captured aptly in songs and it suffices to give attention to Pentecostal music as an expression of how this indigenous belief has captured the imagination of many. [98]
[98] Kudzai Biri, and Molly Manyonganise, ‘Back to Sender: Re-Visiting the Belief in Witchcraft in Post-Colonial Zimbabwean Pentecostalism’ (2022) 13(49) Religions.

The continued practice of certain “witchcraft” practices among Australian Aboriginal peoples has been noted for many years and aspects of this were explored in the 1986 Australian Law Reform Commission’s Report.[99]
[99] Australian Law Reform Commission, Recognition of Aboriginal Customary Laws (Report No 31, June 1986).
The role of the kurdaitcha (gadaidja) man in traditional Aboriginal communities has been recognised as having a major impact upon the way in which life is lived and conducted in certain communities and the practice of “bone pointing” as a method of causing extreme suffering to the point of death is not unknown.[100]
[100] David F Martin, ‘Aboriginal sorcery and healing, the alchemy of Aboriginal policy making’ (2007) 33 Journal of the Anthropological Society of South Australia at 33.
That is not to say that the Tribunal believes that the Applicant’s fear is necessarily well grounded, but it would be inappropriate for the Tribunal to dismiss it as a matter of no merit and a jurisdictional error not to consider it.[101] At the end of the day, the Tribunal does not regard this fear as one which could be objectively assessed as favouring the Applicant.
[101] FKP18 v Minister for Immigration and Border Protection [2017] FCA 1555 at [30]; Minister for Home Affairs v Omar [2019] FCAFC 188.
The Tribunal notes that should the Applicant be able to demonstrate any sound basis for such fears on his part he has the option of seeking a Protection Visa, in which case such claims would be subject to closer scrutiny.
Finally, the Tribunal notes the evidence of JM that it would not be possible for the Applicant to live with or be supported by his stepfather and that there are no other known relatives in Zimbabwe who could fulfill a supportive role.
The Tribunal also accepts that members of the Applicant’s family would suffer impediments if he is removed. Their interests are relevant considerations in this regard.[102]
[102] Dunasemant v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 13 at [9].
It is likely that they would find great difficulty maintaining any sort of close or familial relationship and the return of his mother and stepsister to Zimbabwe on a regular basis is dependent upon the Applicant’s stepfather remaining alive. The Tribunal understands he is 54 years of age but suffers from HIV infection.
On the other hand there is a limited degree of mutual inter-dependence of these family members and the Applicant makes no financial contribution to the support of any other family members.
Consideration of all these factors leads the Tribunal to assess that this criterion counts in favour of the Applicant to a moderate degree.
Impact on victims
Although there have obviously been numerous victims of the Applicant’s offending, none has presented any evidence to the Tribunal, and this is especially the case in relation to TG.
As a result, the Tribunal concludes that this criterion counts neutrally in relation to the Applicant.
Links to the Australian community
The Applicant has lived for most of his life in Australia and all his familial and social ties are here. On the other hand, he has no record of involvement in any form of education and training beyond Year 11 and has not been in steady employment, with no details of any employment recorded past 2014.[103]
[103] G-documents at 94.
There are no ties of an economic or financial nature between the Applicant and anyone else in Australia and indeed some of these things are not surprising given the amount of time the Applicant has spent in goal or immigration detention.
The Tribunal notes that the Applicant himself states that he does volunteer work when he can, but there is no evidence to support this contention.[104] Nonetheless the Tribunal accepts that he has a network of friends some of whom have testified on his behalf but even these individuals admit to limited contact with the Applicant in recent years.
[104] Ibid at 95.
Section 9.4.2 of the Direction requires specific consideration of the impact of any potential removal on Australian business interests. There is no suggestion that the Applicant’s removal would have any impact on any relevant business interests in Australia. As noted, the Applicant does not appear to have been in any form of full-time employment since approximately 2014 and there are no references or letters of support from any previous employers.
Consideration of this criterion leads the Tribunal to assign only limited weight in favour of the Applicant.
THE CALCULUS
Using the weighing criteria outlined above, the Tribunal finds that:
·the protection of the Australian community criterion counts significantly against the Applicant;
·the family violence criteria counts significantly against the Applicant;
·the best interests of minor children count in favour of the Applicant to a limited degree;
·the expectations of the Australian community criterion counts significantly against the Applicant;
·non-refoulement obligations count neutrally in relation to this Applicant;
·the impediments if removed criterion counts to a moderate degree in favour of the Applicant;
·the impact on victims criterion counts neutrally in relation to this Applicant; and
·the links to the Australian community (including relevant business interests) criterion counts in favour of the Applicant to a limited degree.
It must follow from this, particular given the strength of findings in relation to Primary considerations, that the calculus must result in a finding significantly against the Applicant and against any revocation of his visa cancellation.
CONCLUSIONS
The Applicant’s is a difficult and, in many ways, a sorry case in that there is no doubt his formative years were marked by a lack of love, physical abuse and emotional deprivation. However, while that is a sad situation, it is by no means unique. Many people coming to Australia from war zones or as refugees or displaced persons have similar stories. Very few of them go on to develop the criminal record of the Applicant.
The Applicant pleads for a “second chance” and this Tribunal is never averse to granting such requests where they are well grounded.[105]
[105] Do and Minster for Immigration and Border Protection [2016] AATA 390 at [23].
Unfortunately, Mr Nkani has run out of second chances. This is the third visa cancellation, and he appears to have learned nothing in relation to them. He has squandered opportunities offered by bail, parole, intensive corrections orders and the Drug Courts. He has forfeited the right to plead for yet another chance.
To the extent that the Applicant stated in his oral evidence that whatever happened to him, “I won’t give up on myself” and that he was determined “to make myself a better person”, the Tribunal hopes that this turns out to be the case.
DECISION
The decision under review is affirmed.

I certify that the preceding 188 (one hundred and eighty -eight) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

......................................[sgd]..................................
Associate
Dated: 10 May 2022

Date(s) of hearing: 28 & 29 April, 3 May 2022

Applicant: In person

Counsel for the Respondent: Ms A Hammond

Solicitors for the Respondent: Ms H Dejean and Ms C Hillary, Australian Government Solicitor

Date(s) of hearing:	28 & 29 April, 3 May 2022
Applicant:	In person
Counsel for the Respondent:	Ms A Hammond
Solicitors for the Respondent:	Ms H Dejean and Ms C Hillary, Australian Government Solicitor