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

Nyemah and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2107 (22 June 2021)
Division:GENERAL DIVISION
File Number(s): 2021/1761
Re:Moses Nyemah
APPLICANT

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

Tribunal:Senior Member B J Illingworth
Date:22 June 2021
Place:Adelaide

WRITTEN REASONS FOR DECISION DATED 16 JUNE 2021 NAMELY:
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision dated 29 June 2020 and substitutes a decision revoking the mandatory cancellation of the Applicant’s Class XB Subclass 200 Refugee visa granted on 30 August 2002.
..................[SGND]....................
Senior Member B J Illingworth
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class XB Subclass 200 Refugee visa – where Applicant does not pass the character test – serious criminal record – whether “another reason” to revoke visa cancellation – Ministerial Direction 90 – Discretion exercised – Decision under review set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Secondary Materials
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member B J Illingworth
22 June 2021
INTRODUCTION and BACKGROUND

Moses Nyemah (the Applicant) was born on 25 September 1984 and is now 36 years of age. He is a citizen of Liberia where he lived until he was five years of age. During the Civil War he witnessed his mother being raped and murdered, the murder of a number of his siblings and other atrocities.
The Applicant fled Liberia to neighbouring Guinea with his father, aunt and other family members. They resided in a refugee camp for 14 years[1] enduring poverty, starvation, hygiene issues and limited water supply. The Applicant was there a victim of violence, being bashed and threatened by other groups in the refugee camp, and he reported sexual and physical violence by the man to whom he was introduced as his uncle[2].
[1] Exhibit A, G Documents, page 53.
[2] Exhibit C, Psychology Report of Mr Mehdi Abiyat, page 2.
The Applicant arrived in Australia on 25 February 2003 when he was 18 years of age. He travelled to Australia with his father, stepmother and her children. On arrival he started English classes. He commenced a chef course at TAFE where he met his partner TGC with whom he subsequently had two children who are now approximately 12 and 13 years of age.
From August 2005 until 30 July 2017, the Applicant committed numerous offences including hindering and resisting police, disorderly behaviour, property damage, cultivating cannabis plants, carrying an offensive weapon, driving with excess blood alcohol, numerous offences of failure to comply with bail agreements, and estreatment of bail[3]. In March 2016, he received a conviction for two counts of failing to comply with bail agreements, two counts of failing to pay taxi fares, carrying an offensive weapon and stating a false name. He was sentenced to seven days imprisonment which was suspended upon him entering into the bond to be on good behaviour for 12 months, but he was otherwise dealt with mainly by conviction and fine or discharged without penalty or fine.
[3] Exhibit A, G Documents, pages 24-25.
From 30 July 2017 to December 2018, the Applicant committed a number of offences including offences of violence, theft, robbery, and aggravated robbery. He appeared in the District Criminal Court on 18 March 2020 before His Honour Judge Stretton (the Learned Sentencing Judge) for sentence. His Honour summarised the Applicant’s offending since 2005 and the matters for which he was being sentenced, as follows[4]:
[4] Ibid, pages 26-31.
There are a number of street offences, such as hindering police, refusing to provide them with your name and address, or resisting them. You also have other street offending, which includes carry offensive weapons, driving with excess alcohol, and the like. In more recent times, you have offences of dishonestly taking property, trespassing in residences and carrying an article of disguise.
Against that background, on 30 July 2017, you were at Findon Shopping Centre, whereupon you were observed by the victim to have left an adjacent pharmacy, causing the security system to beep, and were observed to place an item in your pocket. The victim notified pharmacy staff, who escorted you back into the pharmacy over that issue.
Shortly afterwards you approached the victim, telling him ‘Why did you tell him? I will stab you’. The victim walked away from you. You approached the victim from behind and struck him from behind to the side of the head with your open hand.
…
Approximately three weeks later, whilst on bail for that assault, you attended the Liquorland premises at Cheltenham. There you were identified by CCTV footage as stealing a one-litre bottle of Canadian Club Whiskey…
On 11 May 2018…you were convicted of basic assault and dishonestly taking property and without further penalty, were released on a bond to be of good behaviour in the sum of $500 for 12 months…it was a condition of that bond that you be of good behaviour and that you come up for sentence if called upon.
…
…you told the court you did not remember the incident as you were intoxicated.
…you simply continued to commit offences. On 21 October 2018, you committed the offence of resisting police, on 24 November 2018, a further offensive hindering police, and on 1 December, a further offence of dishonestly taking property without consent.
…you were dealt with leniently… for all of that offending.
About a week after your 1 December 2018 offence of dishonestly taking property without consent, you committed the major charges before the court today.
At about 9:40 p.m. on Thursday, 6 December 2018 you entered the Port Anchor Hotel in Port Adelaide. You walked behind the bar and attempted to shove the cashier aside whilst she was counting money. She then had to forcibly remove you, although you resisted, from that area. You then walked back around the bar, jumped the counter and grabbed a handful of cash that had been being counted. You were grabbed by the cashier but you wrestled yourself free from her and ran away. You escaped with $350 cash. That compromises the offence of robbery.
The following day, Friday, 7 December 2018, you are in the Port Adelaide Backpackers Hostel. You approached the unmanned front counter and tried to pull open the locked door to the cashbox. A witness saw what you were doing and told you to stop but you kept at it, breaking the door of the cashbox off, whereupon you stole an envelope containing $300 and ran out. That comprises the offence of theft.
About four or five hours later that day, at about 7:50 p.m. you approached the counter of the drive-through bottle shop at the Royal Hotel at Townsville and when the cash register was opened, you reached over the counter attempting to grab $50 notes from the till. The attendant grabbed you and pushed you back, whereupon you removed your backpack and produced a metal pole from it, as if to threaten the attendant. The attendant put his hands in the air and stepped back, whereupon you approached the cash register, removed $1000-worth of $50 notes and ran away. That behaviour amounted to aggravated robbery.
About half an hour later, you attended the bottle shop of the Hilton Hotel at South Road, Hilton and upon the pretext of making a purchase, waited until the cash register was opened and grabbed all the $50 notes from it. The attendant grabbed you but you shook yourself free and ran away. That comprised the offence of theft.
The Applicant’s offending in December 2018 also resulted in him being called up for sentence as a consequence of the breach of his bond dated 11 May 2018. He received a total sentence of 3 years and seven months’ imprisonment with a non-parole period of two years to commence on 19 August 2019 when he was taken into custody. The Applicant is due for release on parole on 18 August 2021 but a compulsory course that he must complete before release will likely result in this release date being later in time.
On 29 June 2020, a delegate of the Minister (the Respondent) mandatorily cancelled the Applicant’s Class XB Subclass 200 Refugee visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Act), on the basis that he did not pass the character test and had been sentenced to imprisonment for 12 months or more and was serving a full-time custodial sentence.
On 23 July 2020, the Applicant made representations relating to the cancellation of the visa and on 24 March 2021, a delegate determined that the visa cancellation should not be revoked. On that same day, the Applicant applied to the Tribunal for review of the decision not to revoke the visa cancellation.
The hearing was conducted on 3 June 2021 and 4 June 2021. The Applicant was represented by Dr Timothy Haines, Emulink Migration & Intercultural Consultancies, and the Respondent was represented by Mr Tom Ellison, Australian Government Solicitor. The Tribunal received documentary evidence as listed in the exhibit list, held on the Tribunal file. During the hearing, the Applicant and his aunt gave evidence and were assisted by interpreters. The Applicant’s former partner also gave evidence.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act which relevantly provides that :
4. The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
The Tribunal is satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Accordingly, there are two issues before the Tribunal namely (a) whether the Applicant passes the character test; and (b) whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
It is conceded by the Applicant that he does not pass the character test. I am satisfied that having regard to the sentence imposed by the District Criminal Court on 18 March 2020, that the Applicant does not pass the character test. He has “a substantial criminal record”, within the meaning of paragraph 501(7)(c) of the Act and therefore does not pass the character test on account of paragraph 501(6)(a).
The applicant cannot rely on s 501(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked. Hence, the question for the Tribunal is whether pursuant to s501CA(4)(b)(ii) of the Act there is another reason why the original decision should be revoked.
When considering the exercise of the discretion in s 501CA(4) of the Act the Tribunal is bound by subsection 499 (2A) of the Act to comply with any direction 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[5].
[5] On 1 April 2021, the former applicable direction, Direction No. 79, was revoked and replaced by Direction No. 90.
In deciding whether to refuse or cancel a non-citizen’s visa, or whether not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform the decision maker’s application of the considerations identified in Part 2 where relevant to the decision. Those principles may be briefly stated as follows:
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.
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.
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.
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.
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 paragraphs 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, and 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. These considerations are
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)links to the Australian community, including:
(i)strength, nature and duration of ties to Australia; and
(ii)impact on Australian business interests.
I will now deal with each of those Primary and Other Considerations in turn.
Primary Consideration 1 – Protection of the Australian Community
Paragraph 8.1 of the Direction requires decision-makers keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of the direction requires decision-makers 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.
I will deal with each of those considerations in turn.
The Nature and Seriousness of the Applicant’s Conduct to Date
Paragraph 8.1.1(1) informs decision-makers of those matters to which the decision-maker must have regard when considering the nature and seriousness of the Applicant’s conduct. Violent and/or sexual crimes, crimes of a violent nature against women or children regardless of the sentence imposed, and acts of family violence regardless of whether there is a conviction for an offence or a sentence imposed, are viewed very seriously by the Australian Government and community. The decision-maker must have regard to the sentence imposed by the courts, the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness, the cumulative effect of repeated offending, whether the non-citizen has provided false or misleading information to the Department and whether the non-citizen has reoffended since been formally warned or otherwise made aware in writing about the consequence of further offending.
The Applicant arrived in Australia when he was 18 years of age. His offending commenced within approximately two years of his arrival in Australia after which he offended regularly. The Learned Sentencing Judge described much of the Applicant’s offending as “street offences”. I agree with that description. From 2005 until 2019, he appeared before various Magistrates’ Courts in which he has been dealt with by without conviction, dismissal without penalty, conviction without penalty, or conviction and fine. In 2016, he received a conviction and seven days’ imprisonment which was suspended upon entering into a bond to be of good behaviour.
The first time the Applicant was sentenced to a period of imprisonment to be served, was on 18 March 2020 when he was dealt with by the Learned Sentencing Judge. He had not previously been warned about the potential consequence of his offending. I am conscious that the imposition of a custodial sentence to be served is a sentence of last resort and is a reflection of the objective seriousness of the Applicant’s offending.
The Respondent submitted that the more recent offending demonstrated a trend of increasing seriousness. His offending as described by the Learned Sentencing Judge on 6 and 7 December 2018 saw him stealing money from hotels, a hostel and a drive-through bottle shop. In respect of the hotels, staff where present when he grabbed money from behind the bar and from the cash register. On those occasions, he had what is best described as a scuffle with those employees who tried, unsuccessfully, to stop and restrain him. In the case of the drive-through bottle shop, when a staff member tried to stop him, the Applicant produced a metal pole from his backpack “as if to threaten the attendant”.
The Applicant’s counsel submitted that this was not demonstrative of a trend of increasing seriousness in offending, that the Applicant did not instigate the violence, and that it was the staff of the venues that first initiated the violence when trying to stop the Applicant.
That submission lacks merit. The Learned Sentencing Judge said the Applicant’s offending was serious and a drug affected crime spree over the course of 6 and 7 December 2018, compounded by the fact that he was on a bond to be of good behaviour at the time which the Applicant ignored. A female cashier from one of the hotels was shocked and upset by the Applicant’s offence and, at the time of sentencing, was still traumatised by the offending. His Honour said, “the current offending represents a disturbing escalation of your offending in this community”[6]. I agree with that description.
[6] Ibid, page 30.
The Applicant put himself into a situation that inevitably resulted in conflict with staff. More particularly, that he entered the bottle shop with a concealed metal pole which he produced as if to threaten the attendant was very serious. The production of a metal pole was reprehensible. The use of the weapon was an aggravating feature of his offence and hence he was charged with aggravated robbery.

The offence of robbery involves theft of property or money with violence or with threats of violence. He engaged in offences of dishonesty that placed others at risk and was clearly offending of increasing seriousness. The offending occurred in a very short period of time, which suggests his increasing level of desperation and brazen disregard for others, arguably in consequence of his drug abuse.
I agree with the Respondent’s submission that there was a trend of increased seriousness of offending. The Applicant in evidence said he had no recollection of his offending, but he did not dispute the circumstances of the offending as summarised by the Learned Sentencing Judge. He could not explain the reason for having the metal pole in his possession. I note that in his letter to the National Character Consideration Centre dated 23 July 2020[7], he said he kept the pole for protection because he was paranoid and felt people were out to get him. He expressed his contrition and remorse for his offending.
[7] Ibid, page 54.
The offending was not the most serious of its type which come before the criminal courts. Nonetheless, the offending placed members of the community at risk of both psychological and physical injury. The female victim of the robbery was traumatised by the Applicant’s conduct. The offending was serious.
In cross-examination, the Applicant was also referred to various Police Apprehension Reports which included alleged incidents of domestic violence. He was not convicted for those alleged offences, but I am reminded of the principles that inform the Tribunal in paragraph 8.1.1(1)(a)(iii) including I must have regard to acts of family violence regardless of whether there is a conviction.
Domestic Violence
Incident dated 6 March 2012[8]
[8] Exhibit B, Supplementary G Documents, pages 203- 204.
The Applicant and his former partner TGC were reported to have been in a relationship for about eight years with two children of that relationship who were then three and two years of age.
At about 9:30 p.m., TGC was home with both children when the Applicant arrived intoxicated. They argued. TGC went to another room cradling their two-year-old child. The Applicant entered the room and became aggressive. The Applicant punched TGC with a clenched fist to the face and head whilst she held the child. She reported to police that she was struck about 10 times causing bruising and pain to the left side of her face, under her eyes and with a lump on the left side of her head. The Applicant then went to the lounge room, sat down with the eldest child, and fell asleep. TGC reported that the Applicant became violent when he drank alcohol, and similar incidents had happened several times in the past, but he never hurt the children.
When police arrived at about 11:15 p.m. they observed bruising to TGC’s face, under her eyes and with a lump on the left side of her head. Police located the Applicant still asleep on the couch. He smelt strongly of intoxicating liquor and police were unable to awake him. They issued an intervention order. Police successfully woke the Applicant at 12:45 a.m. and he was arrested.
Incident dated 28 October 2012[9]
[9] Ibid, page 231.
It is reported that shortly after 7.00 p.m. his partner TGC was home with her two children “when the [Applicant] began berating her for getting involved in other people’s business. The [Applicant] picked up a kitchen knife and held it about 10 – 15 cms away from the neck of the victim and said something like, “you deserve to be hurt for getting involved in other people’s business”.
Incident dated 3 March 2013[10]
[10] Ibid, page 244.
It is reported that the Applicant and a friend were at his home. TGC refused to drive them to another address. The Applicant punched the TGC to the forearm after she put her arm up to protect her head. The Applicant went to the kitchen, picked up a kitchen knife, and was telling his TGC to drive them to the address. The TGC left the address and called the police.
In cross examination the Applicant recalled an occasion when he took a can of fruit from the fridge, opened it, and accidently poured the juice over his partner who called the police. He otherwise denied the alleged incidents but later said he could not remember them.
I note that as part of the apprehension report for the offence dated 28 October 2012, it is also reported that at about 8:30 a.m. on Tuesday, 6 November 2012, the Applicant and his partner argued which resulted in the Applicant tipping a container of fruit in syrup over the partner, which I infer was the incident to which the Applicant was referring.
The Tribunal accepts that the Applicant suffered from Post-Traumatic Stress Disorder (PTSD) following the horrors he experienced in Liberia and the refugee camp in Guinea. His early life was tragic.
Counsel for the applicant referred the Tribunal to an article from Professor McFarlane which referred to lack of memory being a feature of those who suffer from PTSD, and also referred the Tribunal to the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders[11] in support of that proposition. It was submitted that the Tribunal should find that his lack of memory of those and other events, including domestic violence allegations, should be attributed to his mental health condition.
[11] An updated fifth edition of the Diagnostic and Statistical Manual for Mental Disorders was published on 18 May 2013.
That submission was speculative and not based on evidence before the Tribunal by an appropriately qualified expert who considered the Applicant’s stated memory loss and its relationship to his PTSD, drug and alcohol abuse or combination of those or other issues impacting upon him. It is unfortunate that the Tribunal had limited evidence from appropriate mental health practitioners. Reference to a report from psychologist Ms Darmenia by the Learned Sentencing Judge was not before the Tribunal. Psychologist Mr Mehdi Abiyat provided a report dated 27 May 2021 following a 45-minute telephone consultation, however, it did not address the Applicant’s purported loss of memory. It is noteworthy that the Applicant has not consulted a psychiatrist to date, albeit this has now been arranged. The other evidence was the STTARS counsellor report dated 4 May 2021 which did not further assist the Tribunal to make the finding urged by the Applicant’s Representative.
The Applicant was at the time of the offending in the grips of his alcohol and amphetamine addiction. The apprehension report refers to an alleged incident at 12.30 a.m. on 10 May 2012 when police located in a car driven by the Applicant what was suspected to be cannabis and 6 grams of amphetamine.
The Applicant was also referred to other offending, including on 8 November 2014 in Hindley Street carrying an offensive weapon, namely a knife. He initially said he could not remember the incident and then that it did not happen. He then said it was possible his memory loss could be because of alcohol and drug abuse.
The Applicant said that he became homeless in 2015. He could not remember the imposition of a suspended sentence of imprisonment of seven days for carrying an offensive weapon in 2016, albeit he acknowledged he spent short periods of time in custody when arrested. In February 2017, in Sturt Street, he was found in possession of a white crystal substance believed to be amphetamine[12]. The Applicant was referred to a drug assessment appointment and drug referral program but said he never received a drug diversion appointment and did not attend for a drug assessment.
[12] Ibid, page 330.
The Applicant was under the supervision of the Department for Correctional Services in 2017 and was referred to their records for that year[13]. Those records confirm he was residing in a Housing SA rental property. In June 2017, he reported no changes but that he was studying construction online and was to do work experience. On 30 June 2017, he was offered the opportunity to undertake a Resilience and Wellbeing program which he said he wanted to pursue.
[13] Ibid, pages 926 – 930.
The records of 18 July 2017 indicate the Applicant reported no change in circumstances or concern, albeit the Applicant said that no one asked if he had any concerns.
However, two weeks later on 30 July 2017, the Applicant committed the offence at the Findon Shopping Centre including striking a member of the public from behind and to the side of the head with an open hand as referred to in the Learned Sentencing Judge’s sentencing remarks. The sentencing remarks were read to the Applicant. He denied approaching or striking a person. He said his lawyer told him to plead guilty. He then said he could have committed the offence but did not remember the incident.
It is clear that at the time of the Applicant’s offending in December 2018 he was still addicted to and using drugs. As the Learned Sentencing Judge observed, his offending on 6 and 7 Decembers 2018 was a drug-affected crime spree. When apprehended on 7 December 2018 the Applicant was not interviewed by police because it was suspected he was under the influence of drugs.
As to the Applicant’s purported loss of memory, it is not sufficient to merely put an article from a psychiatrist or a diagnostic manual to the Tribunal and invite the Tribunal to make a finding that the loss of memory was due to the Applicant’s PTSD. There were a number of additional factors to be considered including his drug and alcohol abuse, auditory and visual hallucinations which may, for example, have been drug induced or possibly based on some other pre-existing psychological illness. The Applicant’s partner said that he suffered such hallucinations before the Applicant abused drugs and alcohol.
I accept the Applicant suffered a loss of memory, and poor memory which may have had a number of possible causes including his psychological condition and or drug and alcohol abuse. However, I am satisfied that his offending was serious.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Paragraph 8.1.2(1) provides that in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers 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 assessing the risk that may be posted by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account (i) information and evidence on the risk of the non-citizen re-offending; and (ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the Applicant’s offending to date, including any escalation in offending, properly informs 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. The Direction that the Australian community’s tolerance of harm becomes lower as the seriousness of the potential harm increases is also a relevant consideration.
The offending in December 2018 was serious and any risk of reoffending is unacceptable. The impact upon potential victims and members of the community who may be present is such that the Australian community would have no tolerance to members of the community being exposed to even a low risk of offending of that nature should it be repeated.
Further, the allegations of domestic violence are similarly to be regarded as so serious that again a low risk of reoffending is unacceptable and such risk of future offending would not be tolerated by the Australian community. Family violence is plainly abhorrent, and the Australian community would have no tolerance of a person being exposed to even a low risk that such offending might be repeated.
However, there are matters personal to the Applicant that bear upon this and other Primary Considerations which give explanation for his offending and inform the risk of reoffending and the weight to be given to this Primary Consideration. They include his tragic life before arriving in Australia, his mental health and subsequent drug and alcohol addiction, which expert evidence informed me, and I accept, was the Applicant self-medicating in an attempt to address significant mental health and related issues. That included a lengthy history hearing voices in his native language, seeing ghosts and creatures walking over him which I accept caused him significant stress and distress.
The Applicant’s life before arriving in Australia is not challenged. When aged 5 years, civil war broke out in Liberia. He witnessed rebel forces rape and murder his mother and murder the majority of his family, including his siblings. He fled to Guinea with his father, aunt and her children. They remained in a refugee camp for 14 years enduring poverty, starvation, lack of hygiene and limited water supply[14]. The Applicant was also the victim of violence committed by others in the refugee camp and was physically and sexually abused by his uncle.
Supporting Survivors of Torture and Trauma (STTARS) report dated 4 May 2021 by Counsellor Kerri Berardi[15]
[14] Exhibit A, G documents page 53.
[15] Exhibit M.
The Applicant was 18 years of age when he arrived in Australia in February 2003 and, at or about that time, he and his family were referred to STTARS for support. The Applicant said in evidence that he did not understand the role and function of STTARS. I also note that following arrival the Applicant was referred to English school. I accept that he did not then understand the role and function of STTARS.
I accept that he did not then engage further with STTARS or receive treatment for his mental health condition.
The counsellor reported that he was admitted to Glenside Hospital[16] in 2014 for drug induced psychosis. It was also reported that the Applicant was referred for specialist torture and trauma counselling by Skylight Mental Health (Skylight) on 15 December 2017. That referral said he was experiencing anxiety, difficulty with memory and concentration, low motivation, low energy, felt unsafe, had trust issues and a reluctance to connect with his own community.
[16] Glenside Hospital is a psychiatric hospital treating patients with mental health issues.
The Applicant was again referred to Skylight in June 2018. He was experiencing suicidal thoughts, emotional distress, crying, repeated expressions of helplessness and social withdrawal with intense fear and intense anger. He experienced significant helplessness and persistent worries. He had images of memories that were distressing, and he had poor memory and concentration. The referral said the Applicant had substance use and was experiencing hallucinations and audible voices. The Applicant was seeking support for his mental health as he had not engaged in therapy at that time.
It was reported that on 19 March 2021, the Applicant was referred by a social worker at Port Augusta prison for specialist torture and trauma counselling. He was experiencing difficulties with his memory and concentration, difficulty sleeping, was stressed, experiencing intrusive thoughts and memories, persistent pain with no medical cause, thoughts of self-harm and suicidal ideation and past substance use.
The counsellor reported that the Applicant, albeit being referred in 2003, 2017 and 2018, did not engage with STTARS and his file was closed because they were unable to contact him. Having been referred to STTARS on 19 March 2021 and assessed on 14 April 2021, as at the date of the report (4 May 2021), the Applicant had attended seven telephone sessions with STTARS between 14 April 2021 and 3 May 2021 and remained a current client.
The history provided to STTARS was consistent with the evidence before the Tribunal. Further, it is reported that in Guinea the Applicant saw people being killed. He described it as a dangerous place and that he did not feel safe. He reported hearing voices and seeing things at different points in time during his residence in Australia.
The counsellor opined that throughout counselling the Applicant experienced intrusive thoughts and images and nightmares. Nightmares were often about his country and the war. It was opined that those who experience trauma, particularly at a young age, experience incoherent and fragmentary images of events consequently affecting that person’s day-to-day functioning. The counsellor reported:
Literature related to trauma reactions in children and young people broadly agrees that prolonged and repeated exposure to interpersonal trauma, in the course of a child’s development, as is the case of [the Applicant] leads to acute and long lasting emotional, cognitive and behavioural changes.
The Applicant saw a doctor on 29 May 2021 who prescribed antidepressant medication and completed a referral to a psychiatrist. As at the date of the report the Applicant was awaiting an appointment.
The counsellor opined that the Applicant was highly symptomatic requiring mental health support. It was confirmed he spent 3 to 4 months in Glenside Hospital in 2014 because he was “seeing and hearing things”. The Applicant reported that he “felt like things were crawling on him”. Following his release from Glenside Hospital, the sickness returned. In 2016 and 2017 the Applicant reported there “was a ghost in the house, little ones with tiny eyes that were in the cupboards and drawers”. He reported seeing ghosts for some time.
The Counsellor reported:
Culture plays a role in how much support an individual will seek, particularly if there is shame and stigma associated with mental health. It could be that his past substance abuse may have been a factor contributing to his behaviour, however, other factors such as past trauma, witnessing violence from a young age and losing his primary attachment figure, as well as paranoia and cultural beliefs would also affect his reasoning and behaviours.
Under heading “Assessment” the counsellor opined that:
[the Applicant] disclosed past trauma and symptoms consistent with post-traumatic stress disorder characterised by hyperarousal (poor attention, concentration and sleep disturbance), intrusion (nightmares, memories), avoidance and constriction (being detached from others) and low mood (depression). He appears to be experiencing unresolved grief and loss and the effect of this on his development after witnessing his mother killed in front of him when approximately 5 years old.
The counsellor said, “research indicates that if trauma is experienced at this age, it is not uncommon for the individual to experience lifelong affects.” The counsellor referred to the Applicant’s admission to Glenside Hospital in 2014 and his hallucinations. She said:
It is important to consider the developmental impact of trauma, the role of culture, loss of attachment and the internal conflict of trying to avoid the memory of the violence or his mother while needing to process the grief and loss associated with the event.
…
It is a known feature of former presentation that a survivor may mask symptoms for some time, particularly if experiencing psychosis by purposefully avoiding reminders of the trauma. This is often part of a person’s coping mechanism and is an important means of psychological health protection, with specially during periods of prolonged uncertainty.

It is reported that the Applicant is hopeful of completing his chef course at TAFE and is eager to continue to engage in trauma counselling. The counsellor opined “…It would benefit [the Applicant]…to strengthen his relationship with his children and explore past trauma further and develop positive coping strategies.”
Skylight report dated 24 July 2020 – Community Mental Health Worker Ms Hannah Ramsden[17]
[17] Ibid, pages 59 – 60.
Counsellor Ms Ramsden referred to the Personal Helpers and Mentors (PHaMs) Program (the Program) provided by Skylight which delivers 1:1 support for individuals whose lives are severely affected by mental illness. The Program focuses on recovery. The Applicant has been a participant since August 2016 and the Program was directed to the Applicant maintaining housing, independent living and engaging with job network providers to improve his mental health. Unfortunately, the author provided no detail of his participation and over that period of time. The Applicant said in evidence that he didn’t engage to a significant extent with Skylight, albeit he intends to do so in the future. I accept the Applicant’s evidence.
In the future, Skylight offers the Applicant support, including to enable the Applicant to apply to the National Disability Insurance Scheme, provide one-on-one support and will assist the Applicant to explore ongoing longer term supports.
Report of Mr Mehdi Abiyat, psychologist dated 27 May 2021[18]
[18] Exhibit C.
Mr Abiyat practices in psychological servicing of people suffering depression, anxiety and particularly PTSD. He provides services to clients from Culturally and Linguistically Diverse (CALD) backgrounds. He conducted a phone assessment of the Applicant.
The Applicant provided a history consistent with his evidence, including reference to sexual and physical abuse by his uncle in the refugee camp. He provided similar evidence with respect to hallucinations and, when discharged from Glenside Hospital, he was still hearing voices and seeing creatures which creatures were ordering him to take things that belong to others. Voices were speaking to him in his native African language Mandingo. He eventually became homeless, met the wrong people and reported breaking into shops and hotels for money, alcohol and cigarettes and stealing property. He acknowledged his wrongdoing.
Mr Abiyat opined that the Applicant satisfied the diagnosis of PTSD, but the severity of his symptoms could not be determined during the telephone consultation. However, based on the history provided, his condition could easily amount to complex PTSD which, if confirmed, has more severe, persistent and cumulative effects on emotional and physical wellbeing. Those effects include difficulty with self-esteem, trust, shame, identity and emotional regulation. Usually coping mechanisms utilised by those in the Applicant’s circumstances may include drug and alcohol abuse.
Mr Abiyat opined that the Applicant had a good chance of rehabilitation from his substance abuse and mental health problems. He needed comprehensive multidisciplinary therapy work targeting his physical health, his habits and his untreated serious mental health issues. He needed structured psychotherapy support to deal with assistance into the future.
Forensic Psychological Report before the Learned Sentencing Judge
The Learned Sentencing Judge received a report from psychologist Ms Darmenia which was not before the Tribunal and referred to that report in his sentencing remarks. Ms Darmenia reported that, having regard to hospital information, the Applicant was at least by 2014 a regular user of methamphetamine. She opined that the Applicant presented with chronic mental health concerns, including post-traumatic stress and recurrent depression. She said the Applicant relied on substance abuse to self-medicate chronic distress associated with his traumatic background. He had deteriorating mental health after the breakdown of his relationship with his former partner.
The Applicant met the criteria for alcohol use disorder. His mental health at the time of the December 2018 offending was “particularly poor” in light of his alcohol and drug abuse and recent family deaths. He had been living in the parklands with peers who were a bad influence.
Ms TGC – former partner and mother of the Applicant’s children
Ms TGC provided some helpful evidence with respect to the Applicant and his change in demeanour, particularly over the latter period of their eight-year relationship, and from in or about 2012.
She and the Applicant lived together with their two children, but their relationship deteriorated. She agreed with the Respondent that, in part, this was because of the Applicant’s use of drugs. She became aware that he was using drugs at the end of their relationship, but he never consumed drugs in front of her or the children. She reached the conclusion about his drug use because of the substantial change in his behaviour.
Ms TGC said that the Applicant would cry, and his emotions were “everywhere”. She said he went through a lot back home. She observed a problem with alcohol consumption. She said that something happened in the last 12 months of their relationship. He had bad friends and it went downhill. They had disagreements all the time, but they tried not to argue in front of the children. His mental health deteriorated, and he became very paranoid. He thought everyone was against him. He had flashbacks and hallucinations. She believed his issues arose from events that occurred before coming to Australia.
After separation, the Applicant admitted himself to the Royal Adelaide Hospital. It was a day admission. Ms TGC went to the hospital and urged them not to release him because of her concern about his mental health. She told them he needed help. This, she said, was the first time the Applicant asked for help. He then went to Glenside Hospital[19]. Ms TGC could not recall how long he was in Glenside Hospital but thought it was at least for a week or two. Ms TGC’s parents also helped, including by visiting the Applicant in Glenside Hospital.
[19]
Ms TGC said she still cared for the Applicant. It was emotional seeing him at the hearing. He looked healthy. She described a “massive difference” in him for the better. She did not recognise him when she came into the hearing room. When she last saw him, he was thin and looked unwell.
In cross-examination, Ms TGC was referred to the incidents of domestic violence. In relation to the events of 6 March 2012, she remembered that the Applicant hit her multiple times but could not remember much detail about the event. She remembered that she suffered bruising. She did not want him to be charged with an offence but called the police who took him away. She said at this time his personality changed and “he just flipped”.
In relation to the incident of 28 October 2012, she could not remember the events that well, but vaguely remembered a kitchen knife being held towards her. She agreed that she was truthful with police when she spoke to them about the incidents of violence.
In respect of the incident of 3 March 2013, she had some recollection of that incident and she did recall refusing to drive him. However, she could not remember other occasions and describes those three events as the main incidents.
The only time the children were present was when the Applicant struck her on 6 March 2012. She was holding their youngest child, who was then a baby or toddler.
Ms TGC said that it was only in the last 1 to 1 ½ years of their relationship that the Applicant changed. She thought that what he needed was the right help. He has a “lot of good things in him”. Since separation he has never threatened her, and she did not fear for her safety post separation. She had no concern for the safety of her children when they were in his care. She recalled that he was dating another lady, Ms MG, after their separation who she described as a very nice lady.
I will now turn to consider the nature and seriousness of the Applicant’s conduct and the risk to the Australian community should he commit further offences or engage other serious conduct which informs the Tribunal of the weight to be given to this Primary Consideration.
I accept the Applicant’s diagnosis of PTSD arising from a) events during the civil war in Liberia, including witnessing the rape and murder of his mother, the murder of his siblings and other family members; and b) from his traumatic life in poverty in the refugee camp in Guinea where he lived for 14 years which included being the victim of abuse and violence; and c) physical and sexual abuse by his uncle. Throughout his youth, from 5 years of age and during his adolescence, the Applicant endured constant hardship and suffering which insights much sympathy.
When he arrived in Australia aged 18, he and his family were referred to STTARS but given his age and language limitations he did not understand nor engage with STTARRS to any significant degree. The fact that he soon started to commit street offences is explained by that traumatic background and his mental health condition that was then untreated.
The Tribunal is satisfied that the Applicant started using alcohol and drugs to self-medicate and to enable him to deal with his significant mental health issues which included auditory and visual hallucinations. It is likely that he suffered drug-induced hallucinations, albeit there is some suggestion in the evidence of Ms TGC that this was a feature of his presentation before his drug and alcohol use. The Tribunal accepts that at the time of the events of domestic violence and the December 2018 offending the Applicant was suffering from PTSD and was hearing voices and seeing ghosts and creatures which he felt were crawling all over him.
I accept that his condition gave rise to arguments and conflict in the relationship, and in the last 12 – 18 months of that relationship the Applicant’s presentation changed dramatically. In the words of Ms TGC “he flipped”. This, I accept, led to the incidents of domestic violence and the cessation of their relationship. Ms TGC left their home and did not return.
I must regard the incidents of domestic violence as very serious and I do so.
I note that following separation the Applicant maintained contact with Ms TGC until at or about the time he was imprisoned. There was no further domestic violence. She did not fear him or feel threatened and was not concerned for the safety of their children when they were in his care. He commenced a relationship with Ms MG who provided a short undated statement to the Tribunal[20]. They have known each other for 6 years and lived together for 3 years. They remain good friends. He calls her every day. There was no allegation of domestic violence.
[20] Exhibit E.
The Applicant continued to commit street offences until December 2018. As I have said, the offending in December 2018 was not the most serious offences of aggravated robbery, robbery and theft that come before the criminal courts, but nonetheless they were serious. That escalation in offending was driven by his drug addiction which at its height the Applicant said was a $500 a day habit which he would fund from his savings and the commission of criminal offences including robbery.
However, the applicant by his offending placed others at risk of harm, and caused shock, upset and trauma to one victim. The introduction of a weapon, namely the metal pole, was an aggravating feature of one of his offences. Those offences were serious.
In addition to the nature and seriousness of the offending, I must also consider the risk of reoffending in determining the weight to be given to this Primary Consideration. There are significant matters, personal to the Applicant, that bear upon that consideration. It is not uncommon for those who use alcohol and drugs as a form of self-medication to have first suffered a traumatic event in his or her life. In the case of the Applicant, the traumatic events were very significant and ongoing from five years of age until his arrival in Australia aged 18 years.
It is not disputed that the Applicant suffered from PTSD and that together with his alcohol and drug abuse, hearing voices and hallucinations, these factors were significant contributors to his offending including domestic violence.
The Tribunal accepts Ms TGC’s evidence that such violence occurred at the end of their relationship when the Applicant “flipped”. That offending occurred in 2012 and early 2013. He had not previously been violent towards her and since separation that violence has not been repeated. He was subsequently in another relationship without evidence of violence. Hence, a significant period of time has now passed since he demonstrated such very serious conduct.
The Applicant did not engage with STTARS following his arrival in Australia. I accept that he did not understand their role and function until recently. It was not until 2014 when he self-admitted to the Royal Adelaide Hospital and subsequently spent time in Glenside Hospital, that the Applicant first sought help in addressing his debilitating mental health and drug and alcohol issues.
STTARS referred the Applicant to Skylight for specialised torture and trauma counselling in 2017 and again in 2018. I note Skylight reported the Applicant being a participant in the Program since August 2016 but provided no further detail. In that regard, the report is unhelpful. Having regard to the Applicant’s evidence, I am satisfied that such engagement was minimal. However, STTARS report that in 2021 the Applicant had attended seven telephone sessions and remains a current client of STTARS. Further, he saw a doctor in April 2021, was prescribed antidepressant medication and has been referred to a psychiatrist and is awaiting a scheduled appointment. Skylight confirm that they will provide the Applicant with support including to identify longer term support.
Further, the diagnosis of psychologist Ms Darmenia was confirmed by psychologist Mr Abiyat who expressed the strong belief that the Applicant has a good chance of rehabilitation from both his substance abuse and mental health problems. He reported that the Applicant should be provided with structured psychotherapy.
The Applicant has recently demonstrated a positive engagement with those services who can provide appropriate treatment and ongoing support for his mental health condition and, by extension, his need to self-medicate with drugs and alcohol. It is significant that he is now to see a psychiatrist and awaiting an appointment. I am satisfied that the Applicant will continue to pursue treatment through STTARS, Skylight and mental health practitioners directed to the management and recovery from PTSD and associated drug and alcohol abuse.
The Applicant had not been previously warned about the consequence of his offending and its impact upon his right to retain a visa and the privilege to remain in Australia. Given the proceedings before the Tribunal, he is now acutely aware of the potential consequence of his offending and relocation to Liberia. He became distressed and crying during the proceedings when the subject of his relocation, together with the separation from his children and family, was being addressed. I am satisfied that this will be a significant deterrent from future offending.
He has remained in custody for over 18 months. In a handwritten letter from Correctional Officer Lemons[21], I am told that the Applicant worked in the laundry, is a valued participant in the laundry program and holds the position of leading hand. He shows maturity, strong leadership, is always pleasant and polite to staff and inmates and has exceptional time management skills. He demonstrates compassion and empathy, is a good role model for others within the prison system and requires limited supervision.
[21] Exhibit A, G Documents, page 58.
The Applicant has the support of the Catholic Archdiocese of Adelaide. Mr Kuek, Manager at Centacare Catholic Services confirmed in a letter dated 26 May 2021 that continued support would be available should the Applicant be returned to the community[22]. He recently met the Applicant through a referral from Mr Khalid Marogi, Prison Chaplaincy Service who also supports the Applicant[23].
[22] Exhibit F.
[23] Exhibit G.
Mr Sidique Bah, Sierra Leone Community Member, in a letter of support dated 5 May 2021 said has known the Applicant for over 12 years[24]. He confirmed the Applicant’s difficulty in adjusting when he arrived in Australia, his trauma from the loss of his mother and the brutality of the civil war which made him vulnerable and prone to self-destructive behaviour.
[24] Exhibit K.
The Applicant also has the support of his cultural aunt, Fatumata Jalloh, who provided a letter dated 25 May 2021[25] and gave evidence with the assistance of an interpreter. She said that he has the support of family and friends and she will provide a home for the Applicant should he be permitted to return to the community.
[25] Exhibit H.
The Tribunal also received a letter of support from the parents of his former partner and grandparents of his children dated 6 May 2021[26].
[26] Exhibit J.
As Ms TGC observed, the Applicant has changed since his offending and whilst in prison. She did not recognise him when she arrived at the Tribunal. He now looks well. He has remained drug and alcohol free and is engaging with support services and mental health practitioners. I do not lose sight of the fact that he has not been tested in the community, but I am satisfied that the Applicant will continue to engage with the mental health practitioners and support services should he return to the community.
Hence having regard to the considerations in paragraph 8.1(2)(a) and (b), I am satisfied that the incidents of domestic violence were very serious, and his December 2018 offending was also serious. However, having regard to the Applicant’s significant mental health and consequent drug and alcohol abuse that gave rise to that offending, and that the Applicant has now demonstrated a determination to pursue ongoing treatment and engage with supports, together with those deterrent factors to which I have referred, I am satisfied that the risk of reoffending is now significantly reduced, and that he is at moderate to low risk of reoffending should he be returned to the community.
This Primary Consideration must weigh against the revocation of the Applicant’s visa cancellation but, having regard to the reduction in the risk of such reoffending, I give medium weight to this Primary Consideration in favour of the non-revocation of the Applicant’s visa cancellation.
Primary Consideration 2 – Family Violence
Paragraph 8.2(1) of the Direction informs the Tribunal of the Government’s serious concern about conferring on non-citizens who have engaged in family violence the privilege of remaining in Australia. That concern is proportionate to the seriousness of the family violence engaged in by the non-citizen as referred to in paragraph 8.2(3).
Paragraph 8.2 (3) provides that when having regard to the seriousness of the family violence the following factors must be considered where relevant:
(a)the frequency of the non-citizen’s conduct and whether there is a trend of increasing seriousness;
(b)the cumulative effect of repeated acts of family violence; and
(c)rehabilitation achieved at the time of the decision, including the extent to which the person accepts responsibility for the family violence and related conduct; the extent to which the non-citizen understands the impact of his or her behaviour on the abused and witnesses; and efforts to address factors which contributed to that conduct.
Paragraph 8.2(3)(d) also requires the Tribunal to have regard to whether the non-citizen has reoffended since formally been warned or made aware by a court, law enforcement or other authority, about the consequences of further acts of family violence; including warnings about the non-citizen’s migration status should he or she engage in further acts of family violence.

As I have said, the Applicant did not receive a warning.
The Applicant has not been convicted of an offence of family violence and his partner Ms TGC did not want him charged, however on those occasions of violence, she contacted the police for assistance. The material before the Tribunal was the police apprehension report which detailed the allegations and observations of police which I am satisfied is information or evidence from independent and authoritative sources indicating the Applicant’s involvement in such violence as required by paragraph 8.2(2)(b) of the Direction
The acts of family violence have been detailed above and I will not repeat them. Ms TGC said that they were the three main incidents of violence, and that they occurred at the end of an 8-year relationship. I accept that those acts of family violence occurred at a time when the Applicant was suffering significant untreated PTSD and related mental health issues, drug and alcohol abuse, and auditory and visual hallucinations. Put simply, he was very unwell and self-medicating by using drugs and alcohol. Although on the second and third occasion the Applicant produced a knife, I am not satisfied that this involved a trend of increasing seriousness in this type of offending. The first of the offences was violent and when the Applicant was holding their 2-year-old child. They were all serious incidents.
Ms TGC said she came to believe towards the end of their relationship that the Applicant may have been using drugs because of the significant change in his demeanour and that he “flipped” but she never wanted him charged with an offence. She said:
“He used to hallucinate with or without anything [drugs]. I think he had flashbacks and he used to cry sometimes without the influence of any drugs or alcohol…in the end it got worse. Before he could control it more and it was rare; I don’t believe that was alcohol or drug related back then. But in the end, I’m not sure what happened, he thought everyone was against him.”
She believed he needed help.
The Applicant in evidence either denied or could not remember the incidence, but he was from a simple background, did not go to school and appeared to have some difficulty in distinguishing between the concept of denial and lack of memory. I am reasonably satisfied that his memory is best described as confused, caused by his debilitating overall condition, and that he was not trying to be evasive. Nonetheless, he has undertaken and completed the Family and Domestic Violence Program whist in prison which is to his credit. He has to complete the Violence Prevention Program before his release on parole and is inquiring about the Drug and Alcohol Counselling Program.
Importantly, the Applicant’s mental health condition had not been formally diagnosed or treated at the time of the family violence despite being put in contact with STTARS when he first arrived in Australia. I am satisfied he was then aged 18 years, had not been to English classes and did not the appreciate STTARS’ role and function. He therefore did not engage with them and they lost contact.
Nonetheless, he has had some limited engagement with both STTARS and Skylight. He self-admitted into Royal Adelaide Hospital and then Glenside Hospital in 2014 seeking help which was after the breakdown in his relationship with Ms TGC. She and her parents supported the Applicant in his attempt to gain assistance.
The Applicant has since been in a further relationship with Ms MG that lasted 3 years with no allegation of family violence. He remains in daily contact with her.
The Applicant has more recently engaged with STTARS and counselling. His diagnosis of PTSD comes from two psychologists who have had limited contact with the Applicant but have not engaged in an ongoing treatment regime. He has, within the prison, seen a medical practitioner who has referred him to a psychiatrist. I anticipate that will assist the Applicant in future treatment and support to deal with his mental health issues. He also has support services ready to help him upon his release from custody.
I remind myself of the serious concerns about family violence expressed by the government and referred to in paragraph 8.2(1) of the Direction. I also remind myself that despite the Applicant not receiving a warning, paragraph 8.2.(3)(d) informs me that the absence of such a warning should not be considered to be in the non-citizen’s favour.
When considering the seriousness of the family violence, I am to have regard to paragraph 8.2(3) of the Direction. The offending occurred at the end of the Applicant’s relationship when he was very ill. His former partner continued to engage with the Applicant after separation, make their children available to him for access and will do so in the future. I note the program undertaken by the Applicant and he expressed an understanding of the impact violence has on others and is to undertake a further program before release directed to violence prevention.
Of particular importance is the efforts the Applicant has taken, and is now taking, to address his mental health and related drug and alcohol use and auditory and visual hallucinations which gave rise to his offending. It is encouraging that he is to now see a psychiatrist for the first time, has engaged positively with support services, including STTARS, and I am satisfied that he was genuine in his expression of contrition and remorse and his intention to continue with relevant treatment.
Were it not for the fact that the family violence occurred 8-9 years ago at a time when the Applicant was particularly unwell, and that he has now made significant effort to engage with rehabilitative services, I would decide that this Primary Consideration ought to weigh heavily in favour of the non-revocation of the Applicant’s visa cancellation. However, having regard to the evidence, I am confident that the risk of future offending is low and, in the unique circumstances of this Applicant, it is appropriate to give less weight to this Primary Consideration in favour of the non-revocation of the Applicant’s visa cancellation than might otherwise have been the case. I therefore give the Primary Consideration moderate weight in favour of the non-revocation of the Applicant’s visa cancellation.
Primary Consideration 3 – The best interests of minor children in Australia
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether non-revocation under section 501CA is 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 18 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 a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
·     the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
·     the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
·     the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
·     the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
·     whether there are other persons who already fulfil a parental role in relation to the child;
·     any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
·     evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
·     evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
There are two children who have been identified and which the parties agree whose interests are affected by the decision. Those children are his daughter (Child 1) aged approximately 13 years, and his son (Child 2) aged approximately 11 years, both of whom reside with Ms TGC.
The Applicant in his statement dated 23 July 2020[27] and in evidence confirmed that from birth he was the main carer of both children for approximately four years until he and his partner separated. Ms TGC worked, and the Applicant remained at home caring for both children.
[27] Exhibit A, G Documents, page 55.
Following separation, the Applicant maintained contact with both children, having access each weekend until he became homeless in about 2015 when his access reduced.
The Applicant’s evidence was corroborated by Ms TGC. She said he was a good father. She worked “nearly full time” and the Applicant used to play with them, cook for them and take them out. Both children loved him very much, particularly Child 2. That loving relationship continued post separation. He saw the children every weekend for approximately the first two years post separation. They would come back from access happy. After that he was seeing the children a couple times a month and it is only in about the last two years that he has not seen them.
Since the Applicant has been in jail, he has had no contact with the children including by telephone. This has had an effect, particularly on Child 2. Ms TGC has not told the children that their father is in jail. They have been told he has gone to Melbourne. If his visa is not reinstated and he leaves Australia, she will have to tell the children. She said that would have a significant effect upon the children and Child 2 in particular. He sometimes cries because he has not seen the Applicant and regularly asks when he will see him again.
Ms TGC said that the only occasion when a child was present during family violence was that incident on 6 March 2012 when Child 2 was very young. He was not affected by the incident and has no memory of it.
Post separation, Ms TGC said she never feared for her safety and that of her children. She had no concerns about leaving the children in the Applicant’s care. She or her parents would drop them off at his house. This was an emotional time. If the Applicant is permitted to remain in Australia, she will facilitate him seeing them regularly and is open to anything so long as the arrangement is consistent.
Ms TGC said that the only male role model for Child 2 was his grandfather who was aged in his 60s. She has a brother, but his availability is limited. The family did not talk badly about the Applicant.
I accept the evidence of both the Applicant and his TGC in relation to the role the Applicant has played in the care of both children. He has had a significant parenting role for much of their lives which reduced when he was homeless and ceased when he was imprisoned.
To the extent that there is any difference in the interests of Child 1 and Child 2, it is that Child 2 has demonstrated greater distress in not seeing his father and regularly asks when that will occur. I am satisfied that Child 2 is most affected by the separation from the Applicant, including the absence of the Applicant as a male role model in his life. Otherwise the interests of both children are the same.
It is in the interests of both children that the Applicant be afforded the opportunity to return to the community and continue to play a parenting role and renew the close and loving relationship he previously enjoyed with them. I have taken into account the length of time until each child turns 18 years of age and the positive parental role the Applicant will play during the balance of their minority. I am also satisfied that the Applicant’s continued separation will have a detrimental effect on both children and in particular Child 2.
I am satisfied that family violence has had no effect on the children and they are at no risk of being exposed to family violence, abuse or neglect in the future. Should they renew their relationship with the Applicant, it will have a positive outcome on them both to their benefit. Further, the return of the Applicant to Liberia will limit the Applicant’s ability to engage with both children to telephone or internet communication which may be limited given Liberia is an extremely poor country with significant unemployment and poverty.
Having regard to the evidence, I am satisfied that this Primary Consideration weighs heavily in favour of the revocation of the Applicant’s visa cancellation.
Primary Consideration 4 - The Expectations of the Australian Community
In making the assessment for the weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (FYBR) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction[28].
[28] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
Consistent with the Direction, the Australian community would expect the Applicant’s visa to remain cancelled. This must be so having regard to the domestic violence against his former partner and offences of violence and theft in December 2018.
However, when considering the weight to be ascribed to this Primary Consideration, in the operation of the Tribunal’s discretion, those personal factors to which I have referred during his youth and adolescence in Liberia and Guinea together with his PTSD, self-medicating by use of drugs and alcohol and consequent addiction, auditory and visual hallucinations, all of which were undiagnosed and untreated at the time of domestic violence 8-9 years ago, and which continued to have a significant impact upon the Applicant in December 2018, are particularly relevant.
It is also relevant that the Applicant is now engaging in treatment with support services including STTARS. He has a personal support network ready to assist upon his release. He has a place to live, has employment offered by Mr McDonald[29] and is engaging with a medical practitioner including a referral to a psychiatrist. I accept Ms TGC’s observation that the Applicant now looks healthy and there was a “massive difference” in his appearance to when she last saw him.
[29] Exhibit D.
In the unique circumstances of this matter, the weight to attribute to this Primary Consideration and the expectations of the Australian Community is reduced significantly. Although this Primary Consideration still weighs in favour of the non-revocation of the Applicant’s visa cancellation, I attribute moderate weight to the Primary Consideration and the non-revocation of the Applicant’s visa cancellation.
Other Considerations
It is necessary to consider the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).
Other Consideration (a) - International non-refoulement obligations
It is accepted by both parties that there is no evidence that enlivens the Tribunal’s obligation to consider this Other Consideration. I agree. Accordingly, no weight is attributed to Other Consideration (a).
Other Consideration (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.

It is not disputed that the Applicant left Liberia at five years of age and never returned. For the next 14 years he was brought up in a refugee camp in Guinea, where he lived in poverty and was subject to violence. He came to Australia aged 18 years and is now approximately 36 years of age. He has no family friends or acquaintances in Liberia. His only family live in Australia.
The national language of Liberia is English, but the Applicant spent most of his formative years in Guinea where the national language is French. Hence, the Applicant requested a French interpreter to assist when giving evidence. Nonetheless, the Applicant gave almost all his evidence in English and only sought assistance of an interpreter briefly. I am satisfied that language will not be an impediment to the Applicant upon his return to Liberia.
The Applicant has some job skills in the labouring industry and some training as a chef, which may assist him in obtaining some employment in Liberia. However, Liberia is one of the poorest countries in the world. The Applicant’s representative said it was currently the 5^th poorest country. I accept that submission. I received Country Information that confirmed that a significant portion of the general population live in poverty. Access to education is a significant problem[30].
[30] Exhibit B, Supplementary G Documents, pages 950 and 979.
The Country Information informs me that funding for mental health has been given a low priority in Liberia[31]. The persistence of PTSD including among ex-cohabitants and children may be associated with continued exposure to extreme stress, chronic stress such as post-conflict instability, poverty, food insecurity and sickness[32]. Severe mental illness is highly stigmatised and those suffering from mental illness are likely to suffer from extreme abuse. Mental illness is misunderstood and may be regarded as a punishment or consequence of having committed illegal or evil deeds. Exposure to trauma is seen as a cause for drug abuse, interpersonal violence, poor self-care, promiscuity, and psychosis[33].
[31] Ibid, page 984.
[32] Ibid, page 987.
[33] Ibid, page 990.
Having regard to the country information, I am satisfied that the Applicant would suffer significant hardship and poverty should he be returned to Liberia, particularly in circumstances where his mental health, drug and alcohol and related conditions to which I have referred, have not yet been treated to any satisfactory level, and he requires significant and ongoing mental health treatment by appropriately qualified mental health practitioners which he will not likely receive in Liberia. To return him to Liberia, given his current mental health, would have a detrimental impact upon his mental health and associated conditions. He will not likely receive the help from mental health practitioners and community supports that he needs should he return to Liberia.
Accordingly, I am satisfied that this Other Consideration weighs heavily in favour of the revocation of the Applicant’s visa cancellation.
Other Consideration (c) – Impact on Victims
This Other Consideration (c) requires that decision-makers must consider the impact of the s 501 or s 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where information in this regard is available and the non-citizen is being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
The Respondent submitted that there is no evidence before the Tribunal that enlivens the Tribunal’s obligation to consider this Other Consideration. The Applicant made no submissions with respect to this Other Consideration.
However, the Tribunal notes that Ms TGC was the victim of domestic violence to which I have referred. Yet she provided a letter of support for the Applicant and gave evidence to the Tribunal. That evidence was not directed specifically to this Other Consideration. However, in her letter of support she expressed the hope that the Applicant be given the chance to rebuild his life in Australia and support his children. Ms TGC’s parents also provided a letter of support to the Tribunal[34] and expressed a similar sentiment.
[34] Exhibit J.
Should the Applicant remain in Australia, Ms TGC will permit him to re-engage with their children and have ongoing access to them. She does not fear the Applicant, does not feel threatened by him and has no concerns for the safety of their children when they may be in his care.
I am reminded again of her evidence referred to at paragraph 122 above. It was her view that the Applicant was suffering health issues including hallucinations, flashbacks and crying without the influence of drugs and alcohol. I understand her to be saying this was occurring at an earlier time in their relationship. She said that before, he could control it and it was rare, but the condition worsened and, in the end, he thought everyone was against him. It was only at the end of their relationship that domestic violence occurred. She thought he needed help. After they separated, there was no further incident and she does not fear him and does not fear for their children’s safety when in his care. She said:
He used to hallucinate with or without anything [drugs]. I think he had flashbacks and he used to cry sometimes without the influence of any drugs or alcohol…in the end it got worse. Before he could control it more and it was rare; I don’t believe that was alcohol or drug related back then. But in the end, I’m not sure what happened, he thought everyone was against him.
I am satisfied that as a victim of domestic violence, Ms TGC and her parents do not advocate for the non-revocation of the Applicant’s visa cancellation. She and her parents support the Applicant and that he continues to reside in Australia.
The Tribunal did not hear from any other victim and did not receive the Victim Impact Statement referred to by Judge Stretton in his sentencing remarks. Having regard to the nature of the evidence, I am satisfied that it is appropriate to give this Other Consideration neutral weight as it relates to the victim of his December 2018 offending whose current views are not known.
Accordingly, to the extent the Tribunal has received evidence from Ms TGC and her parents, it is appropriate to have regard to this Other Consideration which I give slight weight in favour of the Applicant and the revocation of the Applicant’s visa cancellation.
Other Consideration (d) - Links to the Australian Community
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that I must have reflect the principles in paragraph 5.2, and that I must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
(a)the strength, nature, and duration of ties to Australia; and
(b)the impact on Australian business interests.
The Respondent submitted that there was no evidence enlivening consideration of paragraph 9.4.2(b). I agree.
The strength, nature and duration of ties to Australia
The whole of the Applicant’s African family reside in Australia. He no longer enjoys a relationship with his father, however there was no evidence about the reason for the breakdown of that relationship or the possibility of a renewal of that relationship in the future. His father and stepmother had separated. The Applicant maintained contact with his stepmother and her three adult children, namely a son and two daughters, with whom he travelled to Australia. However, there was no further evidence about his relationship with those family members and the impact an adverse decision may have upon them. The Applicant said they do not know he is in prison.
The Applicant’s cultural aunt, Ms FJ, provided a handwritten letter and gave evidence with the assistance of an interpreter. She was distressed when giving evidence about the Applicant’s possible return to Liberia. In her letter she wrote in glowing terms about the Applicant as a person and as a father to his children.
She knew the Applicant and his family when they lived in Liberia. She was a friend of his mother. They were separated by the civil war and she, together with her husband and 9 children, lived in a different refugee camp in Guinea. Her husband passed away in the refugee camp from injuries he received in the Liberian civil war. She resided in that camp for 10 years before coming to Australia in 2006 with her nine children.
Ms FJ reconnected with the Applicant and his family when they came to Australia. Ms FJ did not know the ages of her 9 children, but it was accepted by the parties that they were all over 18 years of age.
The Applicant previously lived with Ms FJ. She said it was for about 3 months. All of her children love him. She confirmed that the Applicant knows no-one in Liberia. All of his relations have passed away. He has nothing in Africa.
Should the Applicant be permitted to return to the community she will provide him with accommodation, and he can then be involved with his children. She saw the Applicant’s children last week. She said his children love him.
When considering this Other Consideration, the Direction informs me that I must have regard to the length of time that the Applicant has been living in Australia but that less weight should be given to this Other Consideration where he began offending soon after his arrival in Australia. Further, that more weight should be given to time spent contributing positively to the Australian community.
The Applicant commenced offending within two years of his arrival in Australia and, accordingly, I must allow for reduction in the weight to be given to this Other Consideration. However, his initial offending was not serious and was initially hindering and resisting police, refusing to give his name and address, and behave in a disorderly manner. Although offending is not to be tolerated, I am satisfied that the Applicant had endured tragedy and significant hardships in Liberia and Guinea and that he was suffering from undiagnosed and untreated PTSD at the time of his arrival in Australia, which mitigates that early offending and tempers the reduction in the weight to be attributed to this Other Consideration in favour of the Applicant. The Applicant made a contribution to the Australian community by caring for his children for the first years of their lives, which enabled his then partner to maintain employment. He has also worked from time to time, including in the building industry and has employment if he returns to the community.
The Tribunal received a letter from Mr McDonald dated 27 May 2021[35] who works in the steel fixing industry. The Applicant is highly recommended as experienced in commercial steel fixing and he will provide him with permanent employment in the industry should his visa be reinstated. He will also support him in his rehabilitation.
[35] Exhibit D.
The Direction also informs me that I must have regard to the strength, duration and nature of any family or social links that the Applicant has to Australian citizens or permanent residents. I have already referred to that evidence as it relates to his former partner Ms TGC and their two children. I am satisfied that he has a strong relationship with his two children that has been interrupted by his current imprisonment but that it will continue if his visa is reinstated. I am also satisfied that he will continue to engage with his former partner and provide support in the upbringing of those children. With the benefit of employment, he will also provide financial support to Ms TGC and his children. He has support from his former partner’s parents and Ms MG with whom he had a relationship for three years and has known for six years and maintains a close friendship. He also has the support of his church and Mr Sidique Bah who has known the Applicant since his arrival in Australia and is a member of the Sierra Leone community. I have also had regard to the Applicant’s relationship with Ms FJ and her children, and to the limited evidence about his relationship with his stepmother and her children.
I am satisfied that this Other Consideration ways in favour of the revocation of the Applicant’s visa cancellation. Having allowed less weight for his offending soon after his arrival in Australia, which I have tempered having regard to his personal circumstances and health, I am satisfied that significant weight ought be given to this Other Consideration in favour of the revocation of the Applicant’s visa cancellation.
CONCLUSION
Section 501CA(4)(b) of the Act stipulates two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either (1) the Applicant must be found to pass the character test, or (2) the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation.
Based upon the Applicant’s serious offending, he does not pass the “character test” as defined in s 501(6) of the Act. In then considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to those considerations referred to in the Direction.
The Tribunal is particularly conscious of the serious concerns expressed by Government about non-citizens who engage in family violence as reflected in Direction 90, in addition to his failure to pass the “character test”. However, there are unique circumstances in this matter which are relevant to the findings of the Tribunal. They include the tragedy he faced in the Liberian civil war, his appalling life in the Guinea refugee camp, his undiagnosed and untreated PTSD, his self-medicating resulting in drug and alcohol abuse, and audio and visual hallucinations which were impacting upon him at the relevant time of his domestic violence in 2012/2013 and offending in December 2018 which resulted in the mandatory cancellation of his visa.
Were it not for those matters personal to the Applicant, he could expect that those Considerations in favour of the Respondent would weigh far more heavily in favour of the non-revocation of the cancellation of his visa.
Accordingly, the Tribunal finds:
(a)Primary Consideration 1 – Protection of the Australian community – weighs mediumly in favour of the Respondent and the non-revocation of the Applicant’s visa cancellation;
(b)Primary Consideration 2 – Family violence - weighs moderately in favour of the Respondent and the non-revocation of the Applicant’s visa cancellation;
(c)Primary Consideration 3 – Best interests of minor children - weighs heavily in favour of the Applicant and the revocation of the Applicant’s visa cancellation;
(d)Primary Consideration 4 – Expectations of the Australian community – weighs moderately in favour of the Respondent and the non-revocation of the Applicant’s visa cancellation;
(e)Other Consideration (a) – International non-refoulement obligations – is attributed no weight;
(f)Other Consideration (b) – Extent of impediments if removed – weighs heavily in favour of the Applicant and the revocation of the Applicant’s visa cancellation;
(g)Other Consideration (c) – Impact on victims - weighs slightly in favour of the Applicant and the revocation of the Applicant’s visa cancellation;
(h)Other Consideration (d) – Links to the Australian community - weighs significantly in favour of the Applicant and the revocation of the Applicant’s visa cancellation.
The combined weight of Primary Consideration 3 and Other Considerations (b), (c) and (d) is such that they outweigh Primary Considerations 1, 3 and 4.
The Tribunal therefore finds that, taking into account all of the Considerations in the Direction, they weigh in favour of the revocation of the mandatory cancellation of the Applicant’s visa.
Consequently, the Tribunal does exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
For the reasons outlined above, and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision dated 29 June 2020 and substitutes a decision revoking the mandatory cancellation of the Applicant’s Class XB Subclass 200 Refugee visa granted on 30 August 2002.

196.    I certify that the preceding one hundred and ninety-five (195) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

.............[SGND]................
Associate
Dated: 22 June 2021

Dates of hearing: 2 – 4 June 2021

      Advocate for the Applicant:
Timothy Haines, Emulink Migration & Intercultural Consultancies

      Advocate for the Respondent: Tom Ellison, Australian Government Solicitor

[2021] AATA 2107

22 June 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Dates of hearing:	2 – 4 June 2021
Advocate for the Applicant:	Timothy Haines, Emulink Migration & Intercultural Consultancies
Advocate for the Respondent:	Tom Ellison, Australian Government Solicitor