NVTN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2021] AATA 3989

NVTN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3989 (11 October 2021)
Division:GENERAL DIVISION
File Number: 2021/4839
Re:NVTN
APPLICANT

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

DECISION
Tribunal:Member Rebecca Bellamy
Date of Decision: 11 October 2021
Date of Written Reasons: 1 November 2021
Place:Brisbane

The decision under review is affirmed.
.................[SGD].................................................
Member Rebecca Bellamy
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class XB Subclass 204 - Women at Risk visa under s 501(3A) Migration Act – 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 – consideration of Australia’s international non-refoulement obligations – history of violence and alcohol-related offending including sexual offending against a vulnerable person – decision under review affirmed
LEGISLATION
Criminal Code 1899 (Qld)
Migration Act 1958 (Cth)
CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
FYBR v Minister for Home Affairs [2019] FCAFC 185
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Home Affairs v Omar (2019) 272 FCR 589
SECONDARY MATERIAL
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171; Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, GA Res 44/128
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137; Protocol Relating to the Status of Refugees, opened for signature 31 July 1967, 606 UNTS 267
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
1 November 2021
THE ISSUE BEFORE THE TRIBUNAL

The Applicant is a 30-year-old citizen of the Democratic Republic of Congo (“DRC”). In September 2007, when he was sixteen years old, he moved to Australia with his mother and siblings on a Class XB Subclass 204 - Women at Risk visa (“visa”).[1]
[1] Exhibit G1, Section 501 G Documents, G2, page 182.
On 25 November 2020, 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 8 December 2020, the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”).[3] These submissions were received by the Respondent on 11 December 2020. On 19 July 2021, the Respondent decided not to revoke the cancellation.[4]
[2]     Ibid, pages 183 to 190.
[3]     Ibid, pages 97 to 116.
[4]     Ibid, pages 9 to 33.
The Applicant subsequently lodged an application for review in this Tribunal on 20 July 2021.[5] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
[5] Ibid, G1, pages 1 to 8.
The hearing of this application took place across four days between 20 and 23 September 2021. The Applicant gave evidence via video conference. The Applicant’s wife and another witness gave evidence by telephone. The Tribunal also received the written evidence listed in the attached Exhibit Register, 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 21 October 2020, the Applicant was sentenced to a term of imprisonment of eighteen months (along with separate terms of twelve and six months, respectively). 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 to 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 five 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
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 1991 in the DRC.[9] In around 2005, he fled to a refugee camp in Malawi.[10] He arrived in Australia in September 2007.[11]
[9]     Exhibit G1, Section 501 G Documents, G2, page 121.
[10]    Ibid, page 119.
[11]    Ibid, page 182.
The materials before me do not indicate when the Applicant committed his first offence, however he was first dealt with by a court in November 2009. In that sentencing episode, he was fined for unlicensed driving (x 2 charges), no authority to drive, and exceeding the speed limit by 10-19 km/h.[12] In relation to those offences, the Applicant said he did not realise the registration was expired and that he needed to drive to and from work after school.[13]
[12] Ibid, page 37.
[13] Transcript (20 September 2021), page 43, lines 42 to 47; page 44, lines 1 to 15.
Between 2009 and 2020, the Applicant committed more than 35 offences along with six breaches of community-based orders, including that he:
·drove without a valid license, or permitted his car to be driven by a person without a valid license, on at least twelve occasions;
·drove while over the legal alcohol limit on seven occasions[14] and twice refused to provide a breath sample;
·gave false details to police officers on four occasions, three of which appeared to relate to traffic infringements;
·obstructed police, or failed to obey a police direction on four occasions;
·committed nine violent offences, including assault occasioning bodily harm, unlawful wounding and “serious assault police officer whilst adversely affected in public place”;
·used a carriage service to menace harass or cause offence and breached a family violence restraining order multiple times;[15]
·engaged in indecent dealing with a person with an impairment of the mind (three offences); and
·committed other offences such as wilful damage.[16]
[14]   The Western Australian drink-driving offences appear in the “Check Results Report” along with other criminal offences. In 2020, a Magistrate in Queensland referred to drink-driving in South Australia and Queensland (Exhibit G1, Section 501 G Documents, G2, pages 50 and 51). These would appear to be contained in separate traffic histories which are not before the Tribunal.
[15]    The Applicant was not convicted of these because he left the State. In in the hearing he admitted to having engaged in the relevant conduct. See Transcript (21 September 2021), page 101, lines 7 to 24.
[16]    Exhibit G1, Section 501 G Documents, G2, pages 34 to 37.
The vast majority, but not all, of the Applicant’s offending is alcohol-related. An impression of the nature and seriousness of the Applicant’s offending can be gained from a selection of offending episodes. In relation to some, I have the benefit of police or court material that indicates when the offences were committed and the facts of the offending.
Assault – biting
In April 2010, the Applicant bit the arm of a crowd controller at a nightspot who was trying to eject him due to his level of intoxication.[17] The bite punctured the skin and caused bleeding. In the hearing the Applicant admitted to this offence.[18]
[17] Exhibit R2, Respondent’s Summonsed Material, SM3, page 115.
[18] Transcript (20 September 2021), page 55, lines 29 to 40.
Assault – child victim
In June 2010, the Applicant assaulted his seven-year-old foster brother, with whom he was temporarily living, by hitting him several times with a stick in a misguided effort to discipline him. He had picked the victim up after being called by the victim’s school because of his problematic behaviour. On the walk home, he hit the victim and witnesses reported it.[19] Even after a witness intervened, the Applicant delivered another four or five blows to the victim and engaged in threatening behaviour towards the witness.[20]
[19] Exhibit R2, Respondent’s Summonsed Material, SM3, page 113.
[20] Exhibit G1, Section 501 G Documents, G2, page 41.
In the hearing, the Applicant said the victim was living in his mother’s house and, while his mother was temporarily away, the Applicant was also living there.[21] He did not know it was illegal to hit the victim because when he was a child his parents smacked him with a stick.[22] He was shocked when he was charged with assault. However, he did not tell the police this. Rather, he told the police that he only slapped the victim, and he pleaded not guilty.[23] He admitted that he did so because he did not think he should be charged. He claimed he could not remember a person intervening and engaging in threatening behaviour towards that person.[24] He was not intoxicated when he committed this offence.[25]
[21]    Transcript (20 September 2021), page 47, lines 1 to 29.
[22]    Ibid, page 48, lines 1 to 21.
[23]    Exhibit G1, Section 501 G Documents, G2, page 41.
[24]    Transcript (20 September 2021), page 51, lines 38 to 41.
[25]    Ibid, page 50, lines 1 to 26.
I accept that, because of the Applicant’s own upbringing, he did not realise it was illegal or aberrant to discipline his foster brother in that way. However, even taking that into account, the Applicant hit a little boy many times and did not stop when a witness intervened.
When the Applicant was sentenced on 25 February 2011, the learned Magistrate noted that he had already been convicted of two assaults (on security officers) and, referring to the Applicant, he said:
“He’s just not stopping”.
In response, the Applicant’s lawyer said:
“… It’s quite clear that he needs some sort of intervention, anger management counselling.”[26]
[26] Exhibit G1, Section 501 G Documents, G2, page 46.
The Applicant was sentenced to eight months imprisonment, suspended for fifteen months. His Honour told the Applicant:
“Understand this: If you come back to the court with any form of assault or attacking anyone, you will go straight into prison for this. Do you understand that?
Good. For the unlawful assault…you're sentenced to eight months' imprisonment suspended for 15 months. That means if you do anything wrong in the next 15 months, you go into prison, and you will put yourself in prison; no-one else.”[27]
[27] Ibid, page 47.
The Applicant said he remembered being sentenced but he did not remember the Magistrate’s warning.[28]
[28] Transcript (20 September 2021), page 57, lines 40 to 45.
Assault – female victims
A little over a month later, on 31 March 2011, the Applicant slapped a woman across the face in a nightclub and when her female friend intervened, he slapped her across the face too.[29] He was subsequently convicted of two offences of common assault. In the hearing, the Applicant said he remembered the incident, but was too drunk to recall any details of the offences.[30]
[29] Exhibit R2, Respondent’s Summonsed Material, SM3, page 111.
[30] Transcript (20 September 2021), page 58.
Unlawful wounding
On 12 May 2012, the Applicant attacked a neighbour with a broken beer bottle, injuring his arm so that it required two sutures. The victim described the Applicant as angry, with big eyes, shaking and smelling of alcohol. He tried to disarm the Applicant and the Applicant said, “Now you are going to go down. I'm going to kill you today and cut your head off.”[31]
[31] Exhibit G1, Section 501 G Documents, G2, pages 58 to 60.
On 9 November 2012, the Applicant was convicted of unlawful wounding after a summary trial. He had told the police that the victim injured himself in an effort to frame him and collect criminal compensation,[32] however the learned Magistrate described his account as “comprehensively lacking in credibility”.[33] His Honour ultimately concluded that the irresistible inference was that the Applicant armed himself with the neck of a broken bottle and, in the process of threatening the victim with it, wounded him.[34]
[32]    Ibid, page 66.
[33]    Ibid, page 65.
[34]    Ibid, page 70.
In the hearing, the Applicant said he and the victim were both drunk and fighting, and that his watch scratched the victim. He denied having injured the victim with a broken beer bottle.[35] I do not find the Applicant’s evidence to be more persuasive than the Magistrate’s analysis of the evidence and ultimate finding of guilt beyond reasonable doubt. I am satisfied that the Applicant angrily attacked his neighbour with a broken bottle whilst threatening his life.
[35] Transcript (20 September 2021), page 64, line 37 to 47; page 65, lines 1 to 47; page 66, lines 1 to 18.
The Applicant claimed that in 2015 he apologised to the victim and the victim’s partner.[36]
[36] Exhibit G1, Section 501 G Documents, G2, page 119.
Breach of suspended sentence
Since the imposition of the suspended sentence in February 2011, the Applicant was dealt with on four separate occasions for breaching it by continuing to offend. On the fourth occasion, he was sentenced to imprisonment for eight months to be served concurrently with a sentence of seven months’ imprisonment that was imposed for the unlawful wounding of his neighbour. The Applicant also breached a community-based order and an intensive supervision order.[37]
[37] Ibid, page 36.
Driving offences
In February 2014, the Applicant was convicted in South Australia of “Drive under disqualification or suspension” and “Give false answer to identity of driver/owner of vehicle” and sentenced to six weeks’ imprisonment, immediately suspended.[38] The Applicant said his friend was driving and he crashed into a pole. His friend told him he was not supposed to be driving and he would go to prison and blamed the Applicant because he was giving the Applicant a lift. They got out of the car and the friend called the police then ran off. The Applicant later said that he, not his friend, called the police but could not explain why his friend did not try to stop him from calling the police if he was worried about going to prison. The Applicant then said that he called an ambulance, not the police, because his arm was sore, and that the police came.[39] When asked why his friend was worried about going to gaol if the Applicant called an ambulance, not the police, the Applicant said that his friend told him that if he called the ambulance the police would come. He said he decided to call the ambulance knowing that the police would come and with the intention of taking the blame for his friend.[40]
[38]    Ibid, G6, page 287.
[39]    Transcript (21 September 2021), page 95, lines 7 to 47; page 96, lines 1 to 31.
[40]    Ibid, page 96, lines 18 to 31.

The Applicant was then unable to rationally explain why he was convicted of the false information offence if he gave his details to the police and they accepted that he was driving – which they must have to have charged him with the disqualified/suspended driving offence. The Applicant did not have a license at that time. It was put to him that he was stopped by the police, they asked him for his identification and he lied to them about it.[41] He denied that and said he did not have a reason to withhold his details. However, he clearly did as he was unlicensed. I reject the Applicant’s very fluid and implausible account.
[41] Transcript (21 September 2021), page 95, lines 13 to 47; page 96, lines 1 to 57; page 97, lines 1 to 45.
The Applicant did not say he had been drinking prior to these offences. However, it appears from the comments of Magistrate Shearer in 2020, that he was caught drink-driving twice in South Australia, so it is possible that he was drink-driving on this occasion.
Offending in the context of an intimate relationship
According to police records,[42] on 26 November 2016, the Applicant attended his ex-girlfriend’s property and banged on the door. They had been in a relationship for around two years which had ended one month prior to this incident. She called the police. Before the police arrived, the Applicant smashed the rear kitchen window and went inside. He then ran upstairs to the bedroom where the victim was, slapped her on the face and began arguing with her regarding a mobile phone. He then smashed the phone on the wall and the ground and demanded the victim go downstairs with him, which she did. The Applicant went into the garden, and then returned with a long branch. He held the branch above his head and started to argue with the victim again. He then said he was tired and would deal with her later and laid on the lounge. The victim ran from the property and again called the police. The police attended and found the Applicant asleep. When they attempted to escort him from the property, he tried to spit at them.
[42] Exhibit R2, Respondent’s Summonsed Material, SM3, page 100.
On 21 February 2017, the Applicant was convicted of obstructing public officers, possession of stolen or unlawfully obtained property, and criminal damage or destruction of property.[43] He was not convicted of assault. In the hearing, the Applicant said he was not violent, he did not hold a stick above the victim’s head and that he did not spit at police. He admitted to having smashed the mobile phone.[44] I am satisfied that he committed the offences of which he was convicted.
[43] Exhibit G1, Section 501 G Documents, G6, page 287.
[44] Transcript (20 September 2021), page 81, lines 34 to 47; page 82, lines 8 to 14.
In the first two weeks of December 2017, the Applicant sent his on-and-off-again girlfriend two naked photographs of her by SMS. The first photograph was taken from a high angle looking down showing her on her knees, looking down at her mobile phone. The second was taken from a high angle looking down on her back while she was engaged in sexual intercourse with the Applicant. The victim had never seen the photographs of herself before and had not given permission for them to be taken. Between 20 and 23 December 2017, she received text messages from the Applicant containing the two naked photographs again with a text stating, “I’m going to put them on social media and ruin your life”. At the time, she was overseas and did not report it to the police.[45]
[45] Exhibit R2, Respondent’s Summonsed Material, SM3, pages 93 to 94.
In February 2018 the victim and the Applicant were on amicable terms and she spoke with him on-and-off by SMS because she wanted him to remove the photographs from his phone.
On 4 March 2018, the victim stopped speaking with the Applicant after she caught him sleeping with another female. On 6 March 2018, the victim received a text message containing the two photographs stating:
“Shaming a cheater is not a crime so be prepared I am gonna post your nude photos all over the net social media and to your employer”.
On 14 March 2018, the victim attended the Magistrate’s Court and made an application for a Family Violence Restraining Order (“FVRO”) against the Applicant. It was served on him on 15 March 2018 at his workplace at 9.30am that morning. Over the next two hours, the victim received several missed telephone calls from a private number to her work and personal mobile phones. She answered one of them and heard the Applicant say, “Hello” before she ended the call. At 11.16am, the victim reported the matter to the police. At 2.27pm, the Applicant called her again and when she answered he said, “I’m begging you let’s meet and talk”.[46]
[46] Ibid.
On 11 April 2018, the Applicant failed to appear in court in relation to three charges of breaching a FVRO and one charge of using a carriage service to menace, harass or cause offence. He had moved to Queensland three days earlier. A warrant was issued for his arrest.[47]
[47] Exhibit G1, Section 501 G Documents, G6, page 287.
In the hearing, the Applicant admitted to having sent the victim the photos, phoning her and sending threatening text messages. He said the victim was seeing different men, that one of them sent the photos to him and that the photos were of the victim and that other man. He told the victim that if she did not want to tell him the truth, he would expose her to a colleague who was a mutual friend. He claimed that the day after the order was served, the victim texted him and asked him to call her, so he did. She kept calling him and even came to see him in Queensland after he moved.[48] He denied that it was him in the photos.[49] The Applicant said he had not consumed any alcohol the day he made the phone calls.[50] He claimed the victim texted him in an effort to get him to call her so that he would breach the restraining order – she did it to get him into trouble.[51]
[48]    Transcript (21 September 2021), page 102, line 32 to 46; page 103, lines 41 to 47.
[49]    Ibid, page 107, lines 45 to 47; page 108, lines 1 to 5.
[50]    Ibid, page 109, line 40.
[51]    Ibid, page 110, lines 29 to 40.
The Applicant’s explanation for his offending is inconsistent with the contemporaneous, apparently impartial police report. Specifically, there is no mention of another man having been in possession of the photographs. I prefer the police records to the Applicant’s account given years afterwards.
On 8 April 2018, the Applicant moved to Queensland. He had been in a long-distance relationship with a Congolese lady, “Ms N”. When he came to Queensland, he lived with her and her two daughters on-and-off and moved in with her at some point before their wedding in December 2019.[52] The Applicant said when he lived with her, he would drink on the weekends – Fridays and Saturdays.[53] Ms N said for the first year when the Applicant was in Queensland, he would drink after work and on weekends, but before they got married she told him to stop. He drank in the house but when he was under the influence of alcohol he left. For example, he would go to a friend’s place and take the car most times.[54] The Applicant said he did not drink in front of Ms N or the children, preferring to drink in the car, or outside the house.[55]
[52]    Transcript (22 September 2021), page 166, lines 1 to 25.
[53]    Transcript (21 September 2021), page 116, lines 1 to 7.
[54]    Transcript (22 September 2021), page 168, lines 39 to 45; page 169, lines 1 to 2.
[55]    Transcript (21 September 2021), page 124, lines 34 to 39.
According to Ms N, she told the Applicant not to drive after drinking, however she said:
“…that’s a man, they’re grown-up men, and especially when they drink, I don’t know, never drunk, but when someone is under alcohol influence sometimes they don’t listen, but what you can do as a woman just show him, like, this is bad, you know.”[56]
[56] Transcript (22 September 2021), page 169, lines 6 to 10.
Drink-driving
At 12.40am on 9 September 2018, the Applicant was caught drink driving. He told the police he had consumed several glasses of Jack Daniels and Coke over a one-and-a-half-hour period prior to driving.[57] In the hearing, the Applicant gave a different account. He said he had been drinking all day and passed out. He awoke at night and drank water. He then decided to drive to a colleague’s place to swap their work boots. He did not realise he was drunk because he had been sleeping and thought he would be okay to drive.[58]
[57] Exhibit R2, Respondent’s Summonsed Material, SM1, pages 6 to 7.
[58] Transcript, page 134, lines 17 to 29; page 135, lines 20 to 35.
I find it implausible that the Applicant, with his history of alcohol abuse, believed he was sober enough to drive merely because he had been sleeping. Further, I find it implausible that his purpose in driving at 12.40am was to swap boots with a colleague. I find the account he gave to the police at the time more plausible. I find that the Applicant had consumed a considerable amount of alcohol in the hour-and-a-half before driving.
Sexual offending
On 30 September 2018, the Applicant committed sexual offences against an eighteen-year-old girl with Down Syndrome after her birthday party. The victim’s sister told the police that after the party ended, she conducted a walk around her house, shut the front door and went to bed, knowing that only her five friends were at the house. The victim went to bed. As a friend was leaving through the front door, the Applicant entered the house without permission. He entered the room where the victim was and got into her bed. He rubbed her breasts without her permission. The victim’s sister walked into the room and saw the Applicant on the victim who was lying face down with her skirt pulled up above her stomach and her pants down. The Applicant had his pants down and was pushing into the victim’s groin. The victim’s sister yelled, “get off” and an argument ensued. The Applicant drove away from the premises at speed, hitting another vehicle as he drove off. The victim told the police that she did not, at any time, give consent to be touched by the Applicant.
The Applicant was remanded in custody and he was not released until 2 May 2019. When questioned by the police, he denied having committed any offences.[59] However, he ultimately pleaded guilty to, and was convicted of, three offences of indecent dealing with a person with an impairment of the mind. The learned sentencing Judge made the following factual findings:[60]
·the victim had an intellectual, cognitive and neurological impairment that deprived her of the cognitive capacity to provide consent;
·she lived with her sister and carer;
·the Applicant was 27 years old all that the time of the offending and did not know the victim;
·there was a party at the victim’s address and the Applicant was among a number of people who attended;
·the Applicant left the party but returned later in the early morning, went into the victim’s room where she was asleep, climbed onto her bed and touched her genital area and breasts over her clothes and underwear;
·as the victim lay face down on her bed, the Applicant pulled his pants down, lay on top of her, held her legs open with both hands below her bottom, and ejaculated onto the bed (his DNA was located on her doona, pillowcase and bedsheets); and
·the Judge inferred that the victim had suffered harm and been adversely affected as a result of the offending.
[59] Exhibit R2, Respondent’s Summonsed Material, SM1, pages 8 to 11.
[60] Exhibit G1, Section 501 G Documents, G2, pages 55 to 56.
In the hearing, the Applicant claimed that he had attended the party with his wife but returned later because he thought he had left his wallet there. He said that a friend gave him a drink and, unbeknown to him, the drink had drugs in it. He could not find his wallet and he was, “wasted” so he passed out on the couch. He denied the allegations and said that he did not remember what happened. However, when he was asked if he accepted what the court said happened, he said, “Yes, probably and I’m so ashamed”. When it was put to the Applicant that the victim’s sister had ended the party and gone to bed, he said when he came back the party was still on.[61] However, I reject that, given it is at odds with the contemporaneous report given by the victim’s sister to the police, and the Applicant was sentenced on the basis that he returned in the early morning and the victim had gone to bed which are both circumstances indicative of the party having ended.
[61] Transcript (21 September 2021), pages 116 to 117; page 120, lines 9 to 31; page 121, lines 1 to 28.
Although the Applicant was not convicted in relation to driving away from the scene while drunk and hitting another car, I accept that he did those things. He did not deny it in the hearing, rather his evidence was to the effect that he could not recall how he got home.
Assault, wilful damage, obstruct police
On 21 July 2019, a little over two months after the Applicant was granted bail, he punched a man in the cheek after the man confronted him about making advances towards his friend’s girlfriend. The victim retreated and walked toward a vehicle. The Applicant followed and was held back by several people. The victim got into a car while the Applicant yelled at him. The Applicant then kicked and punched the door of the car, causing a dent. Police attended. The Applicant refused to give his name, resisted the police’s attempts to handcuff him and move him into a police vehicle, and when he was inside the police vehicle, he kicked the window approximately four times.[62]
[62] Exhibit R2, Respondent’s Summonsed Material, SM1, pages 12 to 14.
In the hearing, the Applicant admitted to having pushed the victim and kicking the car, but he denied punching the victim or kicking the police vehicle. He said he had nothing to do with the victim or his friend’s girlfriend. Rather, he said he was at a party and was triggered by a comment along the lines that he should go back to Congo. He said his wife was not at the party as she does not go to parties. He admitted to resisting the police somewhat and said they used excessive force and he panicked.[63] On 25 September 2019 the Applicant was convicted of common assault, wilful damage, and obstruct police officer.[64]
[63] Transcript (21 September 2021), page 130, lines 6 to 47; pages 131 to 133.
[64] Exhibit G1, Section 501 G Documents, G6, page 286.
Unlicensed driving
On 12 September 2019, the Applicant was caught driving unlicensed. His license had been disqualified in January 2019 for two years. He told the police he was only driving to pick up his partner from work as she was not feeling well. In the hearing he said he was driving home from work and that he did it for financial reasons, because he could not afford an Uber or a taxi. He said he was not drunk on that occasion.[65]
[65] Transcript (21 September 2021), page 134, lines 41 to 47.
The Applicant married Ms N in December 2019 and their daughter was born in mid-2020. After the wedding Ms N tried to find other couples for her and the Applicant to spend time with so they could guide the Applicant especially with respect to his drinking.[66] She also asked a member of the Congolese community, “Mr B”, to help arrange support for the Applicant. Mr B met with the Applicant in relation to his alcohol dependency, however when they were still at the stage of looking for ways to get professional help, the Applicant was arrested for the offences discussed below.[67]
[66]    Ibid, page 169, lines 22 to 30.
[67]    Exhibit G1, Section 501 G Documents, G2, pages 174 to 176.
Drink driving, disqualified driving serious assault police
On 9 August 2020, the police saw the Applicant speed through an intersection at 80 km/h in a 60 km/h zone. The vehicle was swerving from the gutter on its left to the oncoming lane on its right. The Applicant admitted he had been drinking and said he had just come from a party. The Applicant pulled a sum of cash out of his pocket and his wallet, which the police did not accept. He refused repeated directions to take a breath test and told the police they might as well arrest him. When he was in the back of the police vehicle, he turned towards the police officer sitting beside him and deliberately coughed in his face, from around 50cm away, and said words to the effect that he had COVID and the police officer would now have it. The officer felt air on his face. The officer was considered high risk due to suffering from asthma. At the police Watch House, during the removal of the Applicant’s clothing, he attempted to turn around and cough on two police officers, saying, “You’re going to get a disease now”. He later admitted to the police that he was angry, so he said he had a disease. The Applicant was remanded in custody that day[68] and has been in custody ever since.
[68] Exhibit R2, Respondent’s Summonsed Material, SM1, pages 27 to 28.
In the hearing, the Applicant indicated that he had no memory of what he had said to the police officer. He said the police could not prove that he coughed in front of the officer’s face because there was a distance between him and the officer, but he felt very guilty about it so he pleaded guilty.[69] Given the evidence that the Applicant and the officer were both in the back seat of a vehicle and the officer’s evidence that he felt air on his face when the Applicant coughed, I do not accept that the Applicant pleaded guilty in circumstances where the offence could not have been easily proven.
[69] Transcript (21 September 2021), page 137, lines 1 to 38.
On 21 October 2020, the Applicant was convicted of serious assault police officer while adversely affected in public place and sentenced to twelve months imprisonment, to serve six months of that sentence (including time already served on remand) before release on parole. He was further sentenced to eighteen months imprisonment for disqualified driving and six months imprisonment for drink driving.[70] The remarks made by the learned sentencing Magistrate are cogent, particularly the following passages:
[70] Exhibit G1, Section 501 G Documents, G7, pages 298 to 299.
“Your behaviour in this case occurs on only the – August of this year, after you had been manifestly inadequately dealt with on the 2nd of October 2019 in Ipswich for disqualified driving, and also manifestly inadequately dealt with on the 10th of January 2019 in Brisbane for high range drink driving while you were disqualified. I can only surmise that the Court in neither case was given your full history, because if they had and were aware at the time that you committed those offences you had eight previous convictions for disqualified driving and five – and five previous convictions for drink driving in South Australia and Western Australia, that those penalties would have been sentences of imprisonment, in my view. Particularly when one has regard to your Western Australian criminal history which shows that as recently as the 1st of March 2018, you were sentenced to 12 months imprisonment, intensive supervision order and seven months for the equivalent of disqualified driving. You were also – so you were on that order up until the 1st of March of 2019 and the offence of disqualified driving and high range drink driving that you were dealt with for in Brisbane on the 10th of January was committed during the operational period of that order. So one can only roll one’s eyes at the penalty that a Magistrate in Brisbane imposed upon you for high range drink driving while disqualified, in those circumstances.
You have been sentenced to imprisonment again and again in Western Australia for this sort of offending. You have breached all of them. Way back in 2012 even – even – albeit for an offence of violence, you were sentenced to 18 months on an intensive – what they call an intensive supervision order which you breached by disqualified driving and a suspended sentence. So basically, your history over the last ten years demonstrates someone with a dangerous propensity for violence, someone who has no regard for the law, no regard for Court orders, and displays their contempt and disdain for lawful authority by repeatedly offending in breach of orders, in breach of the sentences, and without any regard for the consequences of those breaches or the persons that may be affected by your criminal behaviour. In this case, of course, yet again, you were behind the wheel of a car when you were disqualified. Drunk; yet again. And in this case you seriously assaulted a police officer who has pursued and arrested you, by coughing directly into his face and telling him you had an infectious disease and that he was now going to be infected by it.
The Court of Appeal has commented upon the seriousness or the fact that you are telling police when you assault them that they had been infected with a serious disease is an aggravating factor in the case of Terare [2014] QCA 260 at paragraph 37. The Court noted that in effect, serious assaults upon police are more serious where offenders claim to suffer from serious contagious diseases, even if they do not actually have a contagious disease. Because you place the officer in a position where they are thereafter afraid that they have caught something contagious, they have to go through testing to find out whether they have or they have not, and they suffer the mental anguish in the meantime of wondering whether you have infected them. So that seriously aggravates the offending. And in your case where you have ten previous convictions for disqualified driving, six previous convictions for drink driving and now we add mid-range drink driving while disqualified and a serious assault into the mix, to apply what the High Court said in Veen (No 2), your behaviour in this case is not an uncharacteristic aberration, it is in fact entirely characteristic of your behaviour since you arrived in Australia…
And in my view, the protection of the community and punishment are the overriding sentencing considerations in this case, because deterrence has not been of any value so far. You are clearly undeterred by the prospect or the reality of going to jail in the commission of the offences. You have been given the opportunity time and time again to rehabilitate yourself, as is indicated by the plethora of community based orders that have been imposed upon you in Western Australia over the last decade and you have not taken the opportunity to rehabilitate yourself despite that significant expenditure of public resources.
Your antecedent criminal history illuminates a complete lack of morals…It also demonstrates your dangerous propensity to commit these types of offences, and a need to impose condign punishment.
…
You pose an unacceptable risk to the safety of other residents of Queensland who may have the misfortune to be on the road at the same time as you when you are breaking the law. You have demonstrated repeatedly over the years no regard whatsoever for the rights and safety of others…
Whilst there is no evidence before me to substantiate the assertions that are made in relation to your background, I will accept them for what they are. But your history is so long now, you have reached a point which you cannot continue to rely upon trauma as a child as an excuse or an explanation for persistent, continuous criminal behaviour. You have been in this country for long enough now that you well and truly ought to have learnt to obey the law and to have accustomed yourself to Australian laws and behaviours and to be behaving accordingly.”[71]
[Underlining added]
[71] Exhibit G1, Section 501 G Documents, G7, pages 49 to 52.

On 25 November 2020 the Applicant’s visa was cancelled.
In December 2020, the Applicant was dealt with for the indecent dealing offences. He was sentenced to imprisonment for two years for one offence and imprisonment for eighteen months for the other two offences, concurrent, to be suspended after serving 214 days.
The materials before me contain several police reports alleging offences against women in Western Australia that did not result in conviction and may not have been the subject of charges. I do not consider it necessary to determine whether the Applicant did the alleged conduct as there is ample evidence of violent offending that did result in convictions and, to my mind, the Applicant’s violent disposition is adequately demonstrated by that offending. Accordingly, I disregard the allegations that did not result in conviction where the Applicant denied the allegations.
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:
(iii)violent and/or sexual crimes;
(iv) crimes of a violent nature against women or children, regardless of the sentence imposed;
(v) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(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:
(iii) …;
(iv) 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;
(v) …;
(vi)…;
(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)….
The Applicant’s offending includes repeatedly hitting a child, who was his foster brother at the time and was therefore particularly vulnerable. He received a suspended sentence of eight months’ imprisonment that he was ultimately required to serve in gaol after repeatedly breaching the suspended sentence. The Applicant also slapped two women and attacked a man with a broken bottle. For the latter offending, he was sentenced to seven months’ imprisonment. He has obstructed, tried to spit at and coughed on police officers who were performing their duties, and he was sentenced to twelve months’ imprisonment for the coughing.
The Applicant committed sexual offences against a young woman with Down Syndrome. Whether or not his real reason for returning to her residence – without his wife – was an innocent one (to look for his wallet), once he was there, his behaviour towards the victim was deliberate and predatory. There is a particular obligation on those of us in the community who are not vulnerable to take care with those who are. This is a fundamental tenet of the Australian way of life, essential to the fabric of our community. When vulnerability is preyed upon it is abhorrent, and that was recognised in the charges that were brought against the Applicant in this case where the victim’s intellectual impairment was treated as an aggravating factor. Further troubling aspects of this offending are that it occurred in the victim’s home, a place where she would expect to be safe, and it happened in the aftermath of her birthday party, an event that should have been a coming together of people who cared for her. The Applicant was sentenced to two years imprisonment and eighteen months imprisonment (concurrent) for that offending.
Even without considering the penalties imposed for the violent and sexual offending, it is very serious.
The incident where the Applicant broke into an ex-partner’s home and smashed her phone, and his threats to publish naked photos of an ex-partner on the internet, may not have involved actual violence but the behaviour is nonetheless aggressive and intimidating.
The drink driving offending is serious because of the risk to the safety of others and because the Applicant did it multiple times. In relation to the offence in August 2020, the police saw the Applicant swerving in and out of the oncoming traffic lane. For that offence, he was sentenced to six months’ imprisonment. In addition to the prosecuted drink driving offences, in 2018 he had driven drunk, hit another vehicle, and continued driving. This is serious conduct.
The Applicant has offended frequently since 2009 and while there does not appear to be a trend of increasing seriousness because his offending became serious very early, the relatively recent indecent dealing offences in 2018 are the most serious offences. The cumulative effect of repeated offending is broadly that multiple people in the Australian community, including a vulnerable child, have been physically attacked and one vulnerable adult has been sexually violated. Additionally, police officers have had to deal with an intoxicated, abusive, uncooperative suspect on many occasions, and a great deal of public resources have been expended apprehending, prosecuting, and dealing with the Applicant for his various crimes. The Applicant’s history of unlicensed driving and his multiple drink driving offences reflect a serious disregard for road rules and the safety of other road users.
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.
Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker 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.
Should the Applicant engage in further violent offending, the harm to individuals in the Australian community includes physical and psychological injury. Breaking into a residence, smashing property, making threats – all are likely to result in at least immediate emotional and psychological distress, with longer term impacts also a potential consequence. The harm from further predatory sexual offending includes severe psychological and emotional harm. Obviously, drink-driving increases the risk of accidents, which can result in serious physical injury or death. The harm from uncooperative, nasty behaviour towards police officers includes psychological stress, and in particular the threat of infecting a police officer with a disease causes at least short-term mental anguish. This should be seen in the context that it is well-known that police officers often place themselves in positions of danger in their efforts to protect the community from harm and, as such, it can be a psychologically onerous occupation which can be made worse by behaviour such as the Applicant’s.
It is not only immediate victims of these kinds of offences who suffer harm. Those close to victims are often impacted, including emotionally and psychologically.
The Applicant has caused a great deal of harm in the Australian community and he has the potential to do a great deal more should he be returned to that community and continue to commit offences of the kind he has committed.
Likelihood of engaging in further criminal or other serious conduct
According to the Applicant, in 2009, he started experiencing flashbacks due to the trauma he experienced in the DRC.[72] In the hearing, he stated that he started drinking in around 2010[73] (he later said he could not recall exactly when he started drinking[74]) and before then, he found it very hard to manage the flashbacks – he was hitting himself and getting angry.[75] He did not receive any professional help or counselling. He attempted suicide and relied on alcohol.[76] He also experienced nightmares and difficulty sleeping. In 2012, he was diagnosed with Post Traumatic Stress Disorder (“PTSD”).[77]
[72]    Exhibit G1, Section 501 G Documents, G2, page 33, paragraph 33.
[73]    Transcript (20 September 2021), page 44, lines 41 to 43.
[74]    Transcript (21 September 2021), page 93, lines 5 to 39.
[75]    Transcript (20 September 2021), page 44, line 45 to 47; page 45, line 2.
[76]    Exhibit G1, Section 501 G Documents, G2, page 119.
[77]    Ibid, page 122.
The Applicant said his risk of reoffending is related to alcohol, estimating that 90% of his offending was caused by alcohol abuse.[78] He stated that he now realises how much he has hurt his loved ones by offending and is ashamed of his criminal record.[79] He now hates alcohol.[80] He claims he is now a different person to who he was before, and with the love of his wife and family and the church pastor, he is sure he will succeed.[81]
[78]    Ibid, page 123.
[79]    Ibid, page 91.
[80]    Transcript (21 September 2021), page 139, lines 40 to 48.
[81]    Exhibit G1, Section 501 G Documents, G2, page 120.
Much of the Applicant’s offending is indeed alcohol-related, most notably the assaults he committed while intoxicated, the indecent dealing and the drink-driving offences. However, the fact that this offending was alcohol-related does not mean it was solely attributable to intoxication: not everyone who abuses alcohol commits serious offences. Further, the Applicant chose to keep abusing alcohol, knowing he tended to commit offences when intoxicated. The learned Magistrate who sentenced the Applicant in October 2020 referred to the Applicant’s, “complete lack of morals” and, “dangerous propensity to commit these types of offences”.[82] I respectfully agree with that assessment.
[82] Transcript (20 September 2021), page 52, lines 4 to 6.
The Applicant’s lack of regard for the law, court orders and the police are not only evident in the offences he committed when intoxicated. His early driving offences (in 2009) and the unlicensed driving offence in 2019 were not alcohol-related,[83] nor was the assault on the Applicant’s foster brother in 2010[84] and his breaches of the FVRO in 2017.
[83] Ibid, page 43, line 42; page 44, line 15; Transcript (21 September 2021), page 134, lines 41 to 47.
[84] Ibid, page 50, lines 1 to 26.
Until his most recent incarceration, the Applicant had done very little to address his propensity to offend. He said there were a couple of periods when he abstained from alcohol for several months at a time, although he was vague about those. It appears that one period in 2016 coincided with some counselling that was arranged through a refugee service in Western Australia but for financial reasons he could not continue, and he reverted to drinking.[85] He said that at some stage when he was in Western Australia, he went to a doctor and got medication to help with the flashbacks and to help him sleep. He did not seek help for his drinking.[86] He said the first time he realised that alcohol was the key to his offending behaviour was in 2019 to 2020. He stated he had not realised it before because he was struggling and he used alcohol to sleep.[87] Given so much of the Applicant’s offending was alcohol-related, it is quite implausible that he did not realise earlier than 2019 that his alcohol consumption contributed to his offending and I do not accept that.
[85]    Ibid, page 18, lines 35 to 46; page 23, lines 28 to 46; page 24, lines 1 to 2.
[86]    Ibid, pages 60, lines 31 to 45; page 61, lines 1 to 9.
[87]    Ibid, page 19, lines 25 to 39.
In 2011, the Applicant’s own lawyer told the court in front of him that he needed, “some sort of intervention, anger management counselling”.[88] However, while the Applicant recalls having some anger management counselling in gaol at some point,[89] he did not seek any in the community.
[88] Exhibit G1, Section 501 G Documents, G2, page 46.
[89] Transcript (20 September 2021), page 57, lines 7 to 13.
The Applicant indicated that he moved to Queensland on 8 April 2018. He stated that this was not to avoid charges, but because he: had lost his job, learned of the death of a family member in the DRC, was struggling psychologically and Ms N advised him to come to Queensland to get help.[90] However, after moving to Queensland, he did not engage in any kind of trauma counselling or other mental health intervention. Nor did he do so after he was released from custody in May 2019. When he finally did take steps to get help (discussed more below), it was because Ms N arranged it.
[90] Transcript (21 September 2021), page 101, lines 22 to 24; page 111, lines 40 to 45.
There is a brief risk assessment before me which was conducted by a psychiatric registrar at the Maryborough Prison Mental Health service, dated 29 January 2021. It states that the Applicant had a primary diagnosis of PTSD with a secondary diagnosis of alcohol dependence. At that time, he was not receiving any psychotherapy intervention, but the writer opined that future treatment would ideally include trauma focused CBT (Cognitive Behavioural Therapy), or EMDR (Eye Movement Desensitisation and Reprocessing). He said major barriers to future treatment and care included poor engagement, limited resources/access to psychotherapy, and risk of future harmful use of alcohol. He noted that if the Applicant did not have the support he needed, the likelihood of him using alcohol as a form of self-medication was increased.[91]
[91] Exhibit A2, Clinical Record and Attachments, page 100.
The Applicant has been participating in an Alcoholics Anonymous program while in custody.[92] He is also doing a drugs and alcohol recovery course online[93], and he has been engaging in regular counselling since entering Immigration Detention in relation to alcohol and his trauma.[94] He is also on the waiting list to engage with the Queensland Program of Assistance to Survivors of Torture and Trauma (“QPASTT”).[95]
[92]    Exhibit G1, Section 501 G Documents, G2, page 91.
[93]    Transcript (20 September 2021), page 17, lines 32 to 36.
[94]    Ibid, page 21, lines 35 to 45.
[95]    Ibid, page 22, lines 1 to 6.
International Health and Medical Service (“IHMS”) records indicate that on 16 February and 30 March 2021 the Applicant asked to see a psychologist as he was struggling to cope mentally.[96] In February 2021 he started taking medication to help him sleep[97] but over the next few months, he complained that he was given the medication too early in the evening,[98] and throughout May he declined his medication. He attended weekly psychology appointments between March and June 2021.[99]
[96]    Exhibit A2, Clinical Record and Attachments, Client Medical Request Forms.
[97]    Ibid, page 70.
[98]    Ibid, page 56.
[99]    Ibid, Request for Service forms, pages 121 to 133.
On 27 May 2021 the Applicant refused his medication saying he wanted to take a two week break.[100] He told the Tribunal that the medication he was refusing was to help him sleep (which appears correct) and it was not helping with his flashbacks. He has not found medication helpful and prefers to rely on counselling which he is willing to continue in the community.[101] The Applicant indicated that he would take medication if it helped and did not cause problems.[102] At this point however, it is only therapy that has been recommended.
[100] Ibid, pages 37 to 46.
[101] Exhibit G1, Section 501 G Documents, G2, page 93.
[102] Transcript (21 September 2021), page 145, lines 19 to 36.
IHMS records dated 8 June 2021 noted that the Applicant reported finding his psychology appointments very helpful and wanting to continue them.[103] On 21 June 2021, a psychologist in Immigration Detention reported that the Applicant was engaging well in therapy and making large strides in addressing his previous trauma. He was practicing relaxation, meditation and positive thinking regularly. He opined that the Applicant would benefit from further sessions in the future. He said the Applicant’s increased awareness and confidence in managing his symptoms of past trauma was leading to improved coping strategies and that he was presenting with an improved mental state and level of resilience than when therapy commenced.[104] The Applicant said he has learned some techniques to help manage his stress, flashbacks and panic attacks.[105]
[103] Exhibit A2, Clinical Records and Attachments, page 33.
[104] Exhibit A2, Notes of Greg Hutcheon, pages 101 to 103.
[105] Transcript (20 September 2021), page 20, lines 25 to 40.
IHMS records indicate that on 30 June 2021, the Applicant voiced frustration at officers knocking on his door loudly as it triggered his anxiety, but he did not take up an offer to engage with a counsellor or psychologist at that time.[106] This relatively recent example of the Applicant experiencing anxiety because of commonplace suggests that there is still work to do in relation to managing his past trauma.
[106] Ibid, pages 28 to 29.
The Applicant claimed that if he got his visa back, he would find a professional to help him and do whatever it takes to be a normal person and raise his children.[107] The children he referred to are his biological daughter with Ms N and her other two daughters. He said he has spiritual and emotional support from Ms N and the pastor of her church.[108]
[107] Exhibit G1, Section 501 G Documents, G2, page 87.
[108] Ibid, page 91.

There does appear to be support available from the Applicant’s wife and her community. Mr B provided a letter of support[109] and gave evidence in the hearing. According to his letter, he is a registered migration agent who first met the Applicant around November 2018. He had known Ms N for around eight years. He met with the Applicant in relation to his alcohol dependency however the Applicant was arrested soon after. Since then, he has been providing emotional support to Ms N and her family, checking in on them.
[109] Ibid, pages 174 to 176.
Mr B made brief mention of the Applicant’s community work and support he had been providing to members of the Congolese community of Queensland during tough times without stating what specific support the Applicant had provided. The Applicant did not claim to have provided support to his community and the weight of evidence indicates that it was Ms N, much more than the Applicant, who was involved in the Congolese and Church communities.
Mr B said the Applicant’s removal from Australia would cause tremendous hardship (presumably to the Applicant’s family). He said the Applicant had been calling him regularly, that he is very remorseful and that he continues to show his willingness to get any support available.[110]
[110] Ibid.
“Mr C”, who described himself as a spiritual leader of the Congolese community also provided a letter of support.[111] He said he has known the Applicant since 2019 through his involvement in church activities. He described the Applicant as a responsible man who takes care of his family and always helps people in need. Again, he did not state how the Applicant had specifically helped people in need. Further, his description of the Applicant as responsible overlooks his problematic drinking and his criminal offending. Mr C said he has observed some changes in the Applicant’s behaviour without saying what, and that he is an active member of the church.
[111] Ibid, page 177.
There is a letter of support from the Senior Pastor at a Worship Centre. He said he has known Ms N for many years and attended her wedding to the Applicant. He was just beginning to try to help the Applicant when the Applicant was arrested for drink-driving. He wishes to ensure that the Applicant receives the supports he requires to amend his ways, and he is willing to give him spiritual mentoring. His friends from the church are ready to help the Applicant to make good choices.[112]
[112] Ibid, pages 179 to 180.
The Applicant’s mother described herself as a pastor and said she would provide spiritual support to the Applicant.[113]
[113] Ibid, page 168.
If the Applicant gets his visa back, he intends to live with Ms N and the three girls and get a job. Ms N said she and the Applicant met in 2013 and fell in love in 2016. She considered that they were in a long-distance relationship from 2016.[114] When the Applicant moved to Queensland, he told her he had been involved with another woman in Western Australia and she was unhappy about it but forgave him. She said she would never allow a man to cheat on her.[115] The Applicant gave similar evidence, and he said he is now in a committed, monogamous relationship with Ms N.[116]
[114] Transcript (22 September 2021), page 164, lines 8 to 43.
[115] Ibid, page 176, line 35.
[116] Transcript (21 September 2021), page 102, lines 10 to 15.
Ms N said in the first year of their marriage she saw significant improvement in the Applicant’s behaviour and alcohol consumption, and he was significantly invested in supporting the family and raising their children. She described him as kind-hearted and respectable but said that when he feels low, he resorts to alcohol. Before his recent incarceration he had attended her church with her, and her pastor was committed to assisting him and mentoring him. Before the most recent drink-driving episode he had spent a few months without drinking and when he did drink, he did it at home and responsibly.[117]
[117] Transcript (22 September 2021), page 170, lines 35 to 47.
Ms N said she has been working hard to find support mechanisms for the Applicant when he is released and her pastor is committed to doing whatever he can to support the Applicant. In a letter of support, she said she does not drink and she would encourage the Applicant to avoid any places where there is a chance of him consuming alcohol. In her oral evidence, she took a stronger stance, saying that if the Applicant drinks again she will kick him out, and she will not let him drive her car if he is drunk.[118] Ms N believes they have a strong community behind them and that many have expressed their interest in supporting the Applicant when he is released.[119] However, it emerged in the hearing that Ms N is not aware of the Applicant’s Western Australian criminal history or his South Australian criminal history,[120] and she does not believe he committed the indecent dealing offence.[121] Accordingly, she is not aware of the extent of the challenge that she is taking on.
[118] Ibid, page 175; page 176, lines 1 to 5.
[119] Exhibit G1, Section 501 G Documents, G2, pages 131 to 135.
[120] Transcript (22 September 2021), page 173, lines 1 to 10.
[121] Ibid, page 174, lines 19 to 23.
The Applicant said he has some pro-social friends who he knows through the church[122] and I accept that. I accept that he will live with Ms N and that he has reasonable prospects of securing employment through an employment agency he used before he was incarcerated. I accept that Ms N and others will seek to support the Applicant to abstain from alcohol and abide by the law.
[122] Ibid, page 154, lines 15 to 21.
However, the Applicant’s mother and the community supports can only offer help, and they do not appear to have precise plans as to what support they can provide or arrange apart from spiritual guidance. They did not mention Alcoholics Anonymous or targeted rehabilitation with respect to violent or sexual offending. Further, I am concerned that Ms N will not be any more able to curb the Applicant’s drinking or offending than she was prior to his visa cancellation. First, he has treated her disrespectfully from the outset, two-timing her when they were in a long-distance relationship, and later continuing to engage in irresponsible drinking behaviour despite her objections. Further, after he attended a party with her, he returned later by himself and engaged in non-consensual sexual activity with another person. Second, she gave evidence that she had never physically tried to stop the Applicant from taking the car when he was intoxicated, adding that she is too tiny.[123] Accordingly, she cannot stop him from drink driving if he chooses to. Third, while she said she would kick him out if he drinks, she needs his financial help and emotional support (as she stated in her letter of support)[124] and he knows that, which detracts from the force of that threat. The Applicant’s successful rehabilitation very much relies on him committing to the treatment he needs and consistently choosing to abstain from alcohol and crime.
[123] Ibid, page 169, lines 12 to 16.
[124] Exhibit G1, Section 501 G Documents, G2, pages 131 to 135.
The Applicant has not consumed alcohol since he was incarcerated, however he has had periods of sobriety before, then relapsed. He abused alcohol for some ten years so that behaviour is entrenched. He is currently in a structured environment where alcohol cannot be openly consumed. I accept that he has learned cognitive techniques that he finds helpful and he currently intends to continue trauma counselling. It remains to be seen whether he will follow through in the wider community.
There is no expert evidence before the Tribunal as to how effective the anger management has been. The Applicant has not attempted to do any kind of counselling or rehabilitation in relation to his sexual offending, and when asked about it, his answer focused on alcohol rehabilitation and anger, without acknowledging any need for sex offending rehabilitation.[125]
[125] Transcript (21 September 2021), page 140, lines 12 to 24.
Based on his preparedness to give false evidence to the Tribunal, I am not persuaded that in the last twelve months the Applicant has developed respect for the law and the legal system. Further, the fact that he denied some offending and gave untrue evidence about the circumstances of other offending calls into question whether he truly holds himself accountable for his behaviour in the past and whether he will do so going forward. It also calls into question the genuineness of his expressions of remorse and commitment to rehabilitation.
Despite the Applicant’s recent efforts, his expressed remorse and aspirations, and the support he has available to him, I have real concerns that if he is returned to the wider community, he will revert to the use of alcohol and he will re-offend.
I consider there to be at least a moderate risk that the Applicant will commit further offences of the kind that he has committed.
Conclusion: Primary Consideration 1
Primary Consideration 1 weighs very heavily against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction relevantly provides:
(1)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 (see paragraph (3) below).
(2)…
(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)….
The Applicant assaulted his foster brother with whom he was living at the time. It was a sustained attack whereby he hit the child multiple times with a stick. It was an isolated offence. The Applicant appears to now accept responsibility for the offence, although there is no evidence about to what extent he understands the impact of the offending on the victim. According to him, he believed at the time that his behaviour was appropriate as that was how he was disciplined in his culture as a child. The response by the criminal justice system disabused him of that belief and there is no evidence that he has engaged in similar conduct in the thirteen years since the offence.
I have addressed this offending in Primary Consideration 1. The fact that it was an instance of family violence must add to its seriousness under the Direction. I take that into account in my overall assessment of whether there is another reason to revoke the visa cancellation.
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 s 501CA is or is not in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under eighteen years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if 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 several 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).
Ms N works as an assistant nurse.[126] Her eldest daughter, “Child O”, was born in the DRC in 2007, the product of rape when Ms N only fifteen years old.[127] Her middle daughter, “Child T”, was born in a refugee camp in 2011 and her father has never been involved in their lives.[128] She had a third daughter, “Child A” with the Applicant in mid-2020.[129] The Applicant was imprisoned only weeks after the birth. Ms N and the three girls live together. They are all Australian citizens.[130] The Applicant was part of their household from April until September 2018, and again from May 2019 to August 2020, a total of around 21 months.
[126] Exhibit G1, Section 501 G Documents, G2, page 123.
[127] Ibid, page 104.
[128] Ibid.
[129] Ibid, page 123.
[130] Ibid, page 127.
According to the Applicant, his stepdaughters consider him to be their biological father[131] and he believes Ms N has told them that.[132] Ms N gave somewhat corroborative evidence, although she appeared to blur the meaning of father figure and biological father: her evidence indicated that she presented the Applicant to her daughters as their father without much explanation.[133] For the Applicant’s part, he said he did not know how, if Ms N had told the girls that he was their biological father, she had explained his absence until 2018 to them.[134] I think it likely that the Applicant has been presented to these girls as their father going forward for all intents and purposes, but I do not accept that that Child O or Child T believe the Applicant to be their biological father. Nor do I accept that they were suffering from the absence of a father before the Applicant joined their family. Ms N said that her daughters grew up around women, and before 2018 they had never expressed any interests in who their father was. It was only now that they were asking questions like, “Where is our father?” and, “Who is [the Applicant]?”.[135]
[131] Transcript (20 September 2021), page 28, lines 34 to 46; page 33, lines 1 to 13.
[132] Exhibit G1, Section 501 G Documents, G2, page 123.
[133] Transcript (22 September 2021), page 167, lines 35 to 47; page 168, lines 1 to 25.
[134] Transcript (20 September 2021), page 33, lines 14 to 47.
[135] Transcript (22 September 2021), page 167, lines 35 to 47.
The Applicant claimed to be provider to all the children and to love them all.[136] Child T had difficulty reading and writing and the Applicant helped her with that.[137] He speaks with the children by phone after school and on weekends.[138] He said his separation from them was affecting them, especially Child O who tells him in phone calls that she is sad that he is not there.[139] He said he promised his stepdaughters, “the best life, protection and to be there for them” and it is important to him to fulfil that promise.[140] The Applicant considers that it will be hard for Child A to grow up without a father.
[136] Exhibit G1, Section 501 G Documents, G2, page 87.
[137] Transcript (20 September 2021), page 5, lines 14 to 20.
[138] Exhibit G1, Section 501 G Documents, G2, page 103.
[139] Ibid, page 87.
[140] Ibid, page 103.
I think the Applicant exaggerated his relationship with Child O and Child T. First, he omitted their dates of birth in the first Personal Circumstances form[141] that he initially submitted (but not the second) and he could not immediately recall his stepdaughters’ birthdays when asked in the hearing.[142] In another section of his revocation request he referred to the possibility that his daughter, “who is one year old and two months” would grow up without a father. When it was put to him in cross-examination that he did not mention his stepdaughters growing up without a father, he gave an unconvincing explanation for that omission.[143] I do not accept that the Applicant feels the same bonds with Child O and Child T as he does with Child A.
[141] Part of his revocation request. See Ibid, pages 81 to 96.
[142] Ibid, page 29, lines 1 to 15.
[143] Transcript (20 September 2021), page 31, lines 7 to 34.
According to Ms N, despite his drinking problem, the Applicant was a responsible husband and a good father. She said he worked hard to provide for their family and had encouraged their children to study and respect everyone. He played a big part in the lives of his stepdaughters, for example helping them with their homework.[144] While incarcerated, he called regularly to speak with her and the children. At the date of her letter of support, being December 2020, she said Child A had not had a chance to get to know the Applicant.[145]
[144] Exhibit G1, Section 501 G Documents, G2, page 126.
[145] Ibid, pages 131 to 135.
Ms N sometimes works nightshifts and initially Child O and Child T have to look after Child A which impacts their sleep. Members of the Congolese community help look after Child A when Ms N works at night, although sometimes that task still falls to Child O and Child T.[146]
[146] Transcript (20 September 2021), page 11, lines 1 to 20.
There is a letter before me from Child O describing herself as the eldest daughter of the Applicant and speaking positively about him. She said their lives will not be the same without him and asked if he could be given another chance.[147] Another letter from Child O, to the Applicant, indicated that she would like him to return to their home and said, “Hope to hear from you soon.”[148] There is also a letter from Child T to the Applicant entitled “Hello Dad!” that expresses that she loves and misses him.[149]
[147] Exhibit G1, Section 501 G Documents, G2, page 178.
[148] Ibid, page 169.
[149] Ibid, pages 170 to 171.
Ms N and the Applicant have a $50,000 loan that they took out to start a business, which they never managed to get started, and they must repay that. There is also a car loan of around $10,000. Ms N is struggling financially.
The Applicant gave evidence that he located his uncle (who was subsequently killed) through Facebook, by connecting with people in the DRC. That indicates that social media and internet is available to some people in the DRC. Accordingly, there would be some potential for the Applicant to maintain contact with his family here if he were removed to the DRC, although I am not prepared to find that it would be frequent or regular.
Child A
Child A is sixteen months old. The Applicant spent only a few weeks with her after she was born. Ms N has always fulfilled the parental role for Child A and there is no suggestion that she is not well cared for. I accept that if the Applicant gets his visa back, he will live with Ms N and Child A and fulfil a parental role. The extent to which that would be a positive thing depends on whether he successfully rehabilitates himself. Separate to that, I accept that the Applicant would gain employment and assist Ms N financially which will indirectly benefit Child A. As Child A is so young, there are many years in which the Applicant could potentially fulfil a positive role in Child A’s life. I do not regard the Applicant’s relationship with Ms N as stable. However, if the relationship breaks down, I think it likely that the Applicant would want to maintain a parental relationship with Child A and he would be required to pay child support.

Articles 2, 6 and 7 of the ICCPR[183] are collectively taken to create an obligation not to remove a person to a place, if there are substantial grounds for believing that there is a real risk of irreparable harm in the form of torture or cruel, inhuman or degrading treatment or punishment, or being arbitrarily deprived of their life.
[183] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976); Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, GA Res 44/128 (15 December 1989, entered into force 11 July 1991).
The country information before the Tribunal does not support the Applicant’s claim that he would be harmed by the DRC government because of his ethnicity. However, there is a great deal of tribal conflict in the South-Eastern parts of the DRC where the Applicant grew up. For example, in May 2019 there was fighting between ethnic Banyamulenge and three other militias from different tribes which destroyed dozens of villages and displaced over 100,000 people.[184] While it is not spelt out, it is reasonable to infer that villages were targeted because of the ethnicity of the residents. I am satisfied that if the Applicant were to return to South-Eastern DRC, there is a real chance that he could be caught up in tribal violence and thereby suffer significant harm.
[184] Exhibit G2, Supplementary Section 501 G Documents, G13, page 458.
The country information before me does not support there being a real risk of ethnically motivated violence against persons of the Applicant’s tribe in other parts of the country including the capital, Kinshasa. One of the DRC’s international airport is in Kinshasa, so the Applicant could access Kinshasa without travelling within the DRC itself. The Applicant did not express a preference for any particular region of the DRC or put forward any reason why he could not settle in Kinshasa, apart from his evidence that he would not be safe anywhere in the DRC. I am not satisfied that it would be unreasonable for the Applicant to live in Kinshasa.
I have before me a report by the United Kingdom Home Office entitled “Country Policy and Information Note Democratic Republic of Congo: Unsuccessful Asylum Seekers”, dated January 2020. It indicates that while there are some reports of ill-treatment of failed asylum seekers, those reports are unsubstantiated. In general, it concludes that returnees are likely to be questioned by the immigration authorities, and they may be asked to pay a bribe to facilitate their passage through immigration and security (and that being unable to pay may result in delays), but there were no substantiated allegations of arbitrary arrest or ill-treatment of any DRC national who was a returning failed asylum seeker or a foreign national offender.[185] There is an unsubstantiated report of returnees having difficulties obtaining documentation, however there have been no such reports in relation to returnees from the United Kingdom or elsewhere since February 2018.[186]
[185] Ibid, G12, pages 323 to 324.
[186] Ibid.
A “Democratic Republic of the Congo 2020 OSAC Crime & Safety” report from the United States (“US”) Department of State, the purpose of which is to inform United States citizens of the risks they may face in the DRC, notes that anti-Western sentiment towards visitors relates more to their perceived wealth than their nationality. The context indicates that the report is referring to anti-Western sentiment in the general community.[187] Should the Applicant be removed to the DRC, he will not be wealthy and he has not given any indication that he would seek to represent himself as wealthy. I am not satisfied that there is a real possibility that the Applicant would suffer harm in the DRC on the basis of being a returnee, including being a returnee from a Western country.
[187] Ibid, G13, page 458.
Part of the Applicant’s claim in relation to his fear of harm in the DRC is that the government would not protect him. The country information supports this, indicating that the police force in Kinshasa and throughout most of the country is generally ineffectual and dysfunctional. I am satisfied that this would be problematic should the Applicant be removed to the DRC because of the poor security situation there. According to the US Department of State, there are risks of terrorism (although the risk is low in Kinshasa), crime, civil unrest, armed conflict and kidnapping in parts of the DRC. The security situation in parts of the Eastern Congo is particularly unstable due to the activities of armed groups and ongoing military operations that continue to destabilise the region. In Kinshasa, there is opportunistic crime such as theft and kidnapping for ransom. Small-scale armed disputes, criminality and lawless behaviour prevail through the country. Armed groups frequently act with impunity. The overall situation in many parts of the country is volatile and unpredictable.[188]
[188] Ibid, G13, pages 454 to 463.
In addition, while political tensions and violent protests have decreased since the election in 2019 (the first time there had been a peaceful and democratic transfer of power), Kinshasa and other major economic centres experience occasional demonstrations by political opposition parties, students, workers unions, civil servants and churchgoers. Many demonstrations turn violent due to efforts by security forces to disperse the crowds quickly. They use tear gas and live ammunition, resulting in injuries and deaths.[189] The country information also indicates that illegal armed groups kidnap people generally for forced labour, military service, or sexual slavery.[190]
[189] Ibid.
[190] Ibid, G14, page 467.
The country information does not indicate that outside South-Eastern DRC, the Applicant would be a target of societal crime or violence not faced by the general population, or for any reason personal to him.
In terms of risk of harm from the government, in 2020 the US Department of State reported that DRC security forces commit arbitrary or unlawful killings in operations against illegal armed groups. The state security forces are believed to abuse and torture civilians, particularly detainees and prisoners. The examples given related to protesters or persons accused of crime. Conditions in most prisons throughout the country are harsh and life-threatening due to food shortages, gross overcrowding, inadequate sanitary conditions and inadequate medical care.[191] The Applicant did not express any interest in participating in illegal armed groups, protesting, or any other political or tribal-based activities. It is a matter of speculation whether he would commit the types of offences that could result in his imprisonment in the DRC, and whether the police and prosecuting authorities would take any interest in him.
[191] Ibid, page 469.
There is insufficient evidence before me to support a finding that the Applicant engages Australia’s non-refoulement obligations. However, it is readily apparent that he will be at considerable risk of generalised crime and violence in his daily life if he is removed to the DRC.
In the event of a non-revocation decision, it is open to the Applicant to apply for a Protection visa where his claims can be more extensively articulated and considered. However, given the exclusions in subsections 36(1C)(b) and (2C)(b) of the Act that reflect Article 33(2) of the Refugees Convention, it seems unlikely that such an application would succeed. Nor is there any suggestion that the Minister would use any of his discretionary powers to allow the Applicant to re-enter the wider community. The likely legal consequence of a non-revocation decision is therefore that the Applicant would be removed to the DRC as soon as practicable.
As the Applicant suggested that the DRC would not give him travel documents,[192] I asked the Respondent to provide information about that, which the Respondent very helpfully did. In submissions after the hearing, the Respondent indicated that Australia has returned DRC citizens where they have held a DRC passport, or where they have personally applied for a DRC passport. However, in a particular case where the Australian government has tried to engage with the DRC government for the issue of travel documents on behalf of a DRC citizen, there have been significant difficulties getting a response. The Applicant did not indicate whether, in the event of a non-revocation decision, he would apply for a DRC passport. Choosing not to would likely result in detention for an indeterminate period while the Australian government sought travel documents for him. If he were to apply for a Protection visa, he would continue to be detained for an unknown period while that application was determined.
[192] Transcript (21 September 2021), page 151, lines 9 to 16.
Conclusion: Other Consideration (a)
This Other Consideration weighs heavily in favour of revocation.
(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 relatively young man who is able bodied but has some medical conditions. He suffers from Gastro-oesophageal reflux disease (“GORD”) when he is stressed or eats certain types of food. He takes daily medication for it.[193] He also has a skin condition which he is able to treat effectively with a certain kind of soap (“black soap”) that was available in the DRC but is not available in Australia.[194] He suffers from PTSD and an alcohol dependence that is currently in remission in a controlled environment.
[193] Exhibit A2, Health Discharge Assessment for Person in Criminal Detention, page 1; Transcript (20 September 2021), page 19, line 41 to 45; page 20, lines 1 to 25.
[194] Ibid, page 21, lines 28 to 34.
The Applicant would not have access to the same level of medical or psychological support in the DRC that he has in Australia. He would probably have to manage his GORD himself, and his PTSD and alcohol dependence may well go untreated. As would the emotional and/or psychological impact of being removed to DRC and permanently separated from his family. The Applicant said it is easy to obtain alcohol in DRC although it is against the Christian faith to consume it, and he is Christian.[195] I accept that despite the consumption of alcohol being against the values of the community he is likely to be around, it will be a struggle for the Applicant to control his alcohol consumption and refrain from engaging in anti-social behaviour while intoxicated. I acknowledge that the Applicant has previously made suicide attempts due to his PTSD going untreated.
[195] Ibid, lines 5 to 25.
The Applicant has no relatives or other connections in the DRC. He will initially have no social or economic support there. The much more limited access that the Applicant would have to social, medical/psychological and economic support in the DRC is commensurate with what is generally available to other citizens of the DRC. This would probably impact the Applicant more because he would not have familial or social support in the DRC.
According to the Bertelsmann Stifung’s Transformation Index (BTI) 2020, in the reporting period 1 February 2017 to 31 January 2019, the population of the DRC was 84.1 million, average life expectancy was 60 years, and 91% of the population lived in poverty. For many Congolese, survival is only ensured through subsistence farming and informal small-scale trading. Poverty has little systematic relation to ethnicity or identity. Churches and family members often provide some social assistance.[196] The outlook for the Applicant in terms of maintaining basic living standards is bleak. In his favour, he is capable of manual labour and he is comparatively well educated, given only 46.2% of Congolese children complete secondary education,[197] whereas he completed high school in Australia.
[196] Exhibit G2, Supplementary Section 501 G Documents, G15, pages 525 and 526.
[197] Ibid, page 533.
As the Applicant lived in the DRC until he was fifteen, I am satisfied that he is sufficiently familiar with the language and culture that he will not encounter any substantial cultural or language barriers.
This Other Consideration (b) weighs heavily in favour of revocation of the mandatory cancellation.
(c) Impact on victims
There is no evidence before the Tribunal relevant to this Other Consideration.
(d) Links to the Australian Community
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 in 2007 at the age of sixteen and he committed his first offence around two years later. He lived in the wider Australian community for around twelve years before his most recent period of incarceration.
The Applicant said he has been working since 2008.[198] The evidence he provided about his employment history was a little inconsistent in relation to the dates when he said he was employed by various employers, however I accept that he has a solid history of gainful employment. Further he gave evidence of having a job when he was at school to help support his family. The Applicant said that he is a blood donor at the Red Cross[199] and I am prepared to accept that. I also accept that he had some involvement with Ms N’s church from 2019. I am satisfied that the Applicant has, at times, been a provider to his family or origin and to his family with Ms N. There is no specific evidence of any additional voluntary contributions to, or productive engagement in, the wider community.
[198] Exhibit G1, Section 501 G Documents, G2, page 93.
[199] Ibid.
The Applicant claimed that a decision not to revoke the mandatory cancellation of his visa would traumatise Ms N and she would struggle to cope financially, emotionally, and mentally.[200]
[200] Ibid, page 101.
Ms N and the Applicant are liable to repay a $50,000 personal loan that they took out to start a hair salon. The hair salon did not go ahead and Ms N is unable sell the equipment for a decent return.[201] There is also a car loan that, when the Applicant made his revocation request, he estimated at $32,000, however in June 2021, it was $10,469.[202] The obligation to service these loans, as well as pay rent and other living expenses, has fallen on Ms N since the Applicant has been incarcerated,[203] although for a time there was money in the Applicant’s savings account that Ms N was able to use.[204] A non-revocation decision would mean that the Applicant could not earn an income and thereby assist Ms N with those financial pressures.
[201] Transcript (20 September 2021), page 5, line 42; page 7, line 23.
[202] Exhibit A4, Letter from “Finance 1” to Ms N (dated 17 June 2021).
[203] Exhibit G1, Section 501 G Documents, G2, page 115.
[204] Transcript (21 September 2021), page 139, lines 28 to 31.
The Applicant claimed that he is the only family Ms N has as she lost her parents and siblings in the war in the DRC,[205] and that he and Ms N did not have any family members or close friends in Queensland to help them.[206] However, I do not accept this. Ms N referred to her mother co-signing for a loan[207] and she said she has a brother in Melbourne and a sister in Queensland who she sees occasionally.[208] Ms N said her two older daughters grew up around women, suggesting they were part of a community (of unknown size) of women. Further, Ms N has longstanding involvement in a Congolese church community. However, I accept that even with the family and church community around her, the financial burdens I have mentioned above will fall on her.
[205] Exhibit G1, Section 501 G Documents, G2, page 85.
[206] Ibid, page 124.
[207] Transcript (21 September 2021), page 172, lines 34 to 36.
[208] Ibid, page 175, lines 19 to 28.
Ms N said she is not sure how she will emotionally survive if the Applicant is deported and he is not able to fulfil his role as a father. It would be extremely traumatising for her to raise their children alone and she will not know what to tell the children about what happened to the Applicant.[209] I think this is exaggerated: Ms N raised her three daughters without the Applicant for most of their respective lives, apparently without extreme trauma. Ms N’s relationship with the Applicant has been interrupted by long absences and marred by his poor behaviour. However, I have read a letter Ms N wrote to the Applicant and I accept that she loves him and that his incarceration and the resulting cancellation of his visa is heartbreaking for her. I accept that his removal from Australia, and from the lives of her children, particularly Child A, would cause her further heartbreak and she will not have his emotional, financial, and practical support as she once did.
[209] Exhibit G1, Section 501 G Documents, G2, pages 131 to 135.
The Applicant’s mother and siblings all live in Australia and they are Australian citizens. He said he is particularly close to his mother who is unwell and suffering from “Blood pressure/Heart attack”[210] and had also lost a leg years ago. I accept that his removal to the DRC would cause emotional hardship to his mother and siblings and he would not be able to help his mother financially as he previously did. I am mindful that if he gets his visa back, he is unlikely to be able to provide much financial or practical assistance to his mother in the foreseeable future given his financial obligations and his plan to live with Ms N who lived in Brisbane whereas his mother continues to live in Western Australia.
[210] Ibid, page 127.
I have addressed the impact on the Applicant’s daughter, step-daughters, nieces and nephews under Primary Consideration 3.
The Applicant claimed to have some pro-social friends in Australia through the church. I accept that although those connections would be relatively recent.
Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests.
Conclusion: Other Consideration (d)
Overall, I am satisfied that the Applicant’s links to the Australian community weighs moderately in favour of revocation.
CONCLUSION
I am now required to weigh all the Considerations in accordance with the Direction. The struggle, hardship, and considerable risk of harm that the Applicant will face if removed to the DRC provide strong reasons to revoke the cancellation of his visa. Added to that is the detrimental impact that his removal would have on Ms N, Child A and others. However, the harm the Applicant has done to individuals in the Australian community, his contumaciousness over a ten-year period, and the risk that he will cause further serious harm are, together, more compelling. Primary Considerations 1, 2 and 4 combined outweigh the combination of Primary Consideration 3 and the Other Considerations that weigh in favour of revocation.
A holistic application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa. Consequently, I cannot exercise the discretion in

s 501CA(4) of the Act to revoke the cancellation of the Applicant’s visa.
DECISION

The decision under review is affirmed.

I certify that the preceding 196 (one hundred and ninety-six) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy

................[SGD]...................................
Associate
Dated: 1 November 2021

Dates of hearing:

20, 21, 22 and 23 September 2021

Applicant:

NVTN (self-represented)

Solicitor for the Respondent
Mr Tal Aviram
Clayton Utz

ANNEXURE A – EXHIBIT REGISTER

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

G1

Section 501 G-Documents (G1 to G11 paged 1 to 313)

R

-

4 August 2021

G2

Supplementary Section 501G Documents (G12 to G15 paged 314 to 564)

R

-

13 September 2021

A1

Statement of the Applicant (1 email)

A

23 August 2021

23 August 2021

A2

Applicant’s International Health and Medical Services (IHMS) Clinical Records (paged 1 to 237)

A

-

23 August 2021

A3

Email from Applicant

A

24 August 2021

24 August 2021

A4

Email from Applicant and screenshot x 1

A

3 September 2021

3 September 2021

A5

Applicant’s submission in reply (1 email) attaching screenshots x 12

A

7 September 2021

7 September 2021

A6

Applicant submissions (1 email) attaching screenshot x 4

A

8 September 2021

8 September 2021

A7

Applicant further submissions (1 email) attaching screenshots x 4

A

10 September 2021

10 September 2021

R1

Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 31)

R

6 September 2021

6 September 2021

R2

Respondent’s Summonsed Material (SM1 to SM3, paged 1 to 151)

R

-

31 August 2021

Dates of hearing:	20, 21, 22 and 23 September 2021
Applicant:	NVTN (self-represented)
Solicitor for the Respondent	Mr Tal Aviram Clayton Utz

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1 to G11 paged 1 to 313)	R	-	4 August 2021
G2	Supplementary Section 501G Documents (G12 to G15 paged 314 to 564)	R	-	13 September 2021
A1	Statement of the Applicant (1 email)	A	23 August 2021	23 August 2021
A2	Applicant’s International Health and Medical Services (IHMS) Clinical Records (paged 1 to 237)	A	-	23 August 2021
A3	Email from Applicant	A	24 August 2021	24 August 2021
A4	Email from Applicant and screenshot x 1	A	3 September 2021	3 September 2021
A5	Applicant’s submission in reply (1 email) attaching screenshots x 12	A	7 September 2021	7 September 2021
A6	Applicant submissions (1 email) attaching screenshot x 4	A	8 September 2021	8 September 2021
A7	Applicant further submissions (1 email) attaching screenshots x 4	A	10 September 2021	10 September 2021
R1	Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 31)	R	6 September 2021	6 September 2021
R2	Respondent’s Summonsed Material (SM1 to SM3, paged 1 to 151)	R	-	31 August 2021