Oke and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 1306

Oke and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1306 (12 May 2020)
Division:GENERAL DIVISION
File Number(s): 2020/1011
Re:Elijah Oladipupo Oke
APPLICANT

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

DECISION
Tribunal:Senior Member Linda Kirk
Date:12 May 2020
Place:Sydney

The Tribunal affirms the decision under review pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975.
.......................[sgd].................................................
Senior Member Linda Kirk
CATCHWORDS
MIGRATION – Class WA Subclass Bridging A visa – citizen of Nigeria – failure to pass character test – offending history – whether discretion to revoke mandatory cancellation should be exercised – considerations under Direction No. 79 – primary considerations – other considerations – decision under review affirmed
LEGISLATION
Migration Act 1958
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Ali v Minister for Home Affairs [2019] FCA 1900
Dalley and Minister for Home Affairs (Migration) [2019] AATA 3738
DOB18 v Minister for Home Affairs [2019] FCAFC 63
DKXY v Minister for Home Affairs [2019] FCA 495
FBW18 v Minister for Home Affairs [2019] FCA 1878
FYBR v Minister for Home Affairs [2019] FCA 500
Hernandez v Minister for Home Affairs [2020] FCA 415
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
LQZW and Minister for Home Affairs (Migration) [2019] AATA 93
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Home Affairs v Omar [2019] FCAFC 188
Omar v Minister for Home Affairs [2019] FCA 279
Pavey and Minister for Home Affairs [2019] AATA 4198
PNLB v Minister for Immigration and Border Protection [2018] AATA 162
Saleh v Minister for Immigration and Border Protection (Migration) [2017] AATA 367
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tuioti and Minister for Home Affairs (Migration) [2019] AATA 4423
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Senior Member Linda Kirk
12 May 2020

Elijah Oladipupo Oke (‘the Applicant’), a citizen of Nigeria, was born in 1989.[1] He arrived in Australia in June 2014.[2] On 18 April 2015 the Applicant married Melissa Lee Oke, an Australian citizen.[3] Prior to its cancellation, the Applicant held a Class WA Subclass Bridging A visa.[4]
[1] Exhibit R1, G8, 56.
[2] Exhibit R2, 269.
[3] Exhibit R1, G30, 132.
[4] Exhibit R1, G2, 16.
On 29 September 2017, the Applicant was convicted in the District Court of New South Wales of the two counts of Sexual intercourse without consent and one count of Assault with act of indecency for which he was sentenced to terms of imprisonment of five years, two years, and three months respectively.[5]
[5] Exhibit R1, G3, 30-31.
On 6 November 2017, the Department issued the Applicant with a Notice of Visa Cancellation (‘the Mandatory Visa Cancellation Decision’) under section 501(3A) of the Migration Act 1958 (‘the Act’) on the basis that he did not satisfy the character test in section 501(6) of the Act by virtue of the term of imprisonment referred to above.[6] On this date, the Applicant was serving a sentence of full-time imprisonment in Kirkconnell Correctional Centre in New South Wales.[7]
[6] Exhibit R1, G35, 216-221
[7] Exhibit R1, G2, 16.
On 16 November 2017, the Applicant made a request for revocation of the Mandatory Visa Cancellation Decision and made representations to the Minister in support of his revocation request.[8] Further representations were made in support of the request on 6 April 2018, 1 May 2019 and 17 August 2019.[9]
[8] Exhibit R1, G7, 52-54.
[9] Exhibit R1, G8, 55-69 and G9, 70-76.
On 17 February 2020, a delegate of the Minister decided not to revoke the Mandatory Visa Cancellation Decision under section 501CA(4) of the Act (‘the Reviewable Decision’).[10]
[10] Exhibit R1, G2, 15-29.
On 24 February 2020, the Applicant lodged an application with the Administrative Appeals Tribunal (‘the Tribunal’) seeking a review of the Reviewable Decision.[11]
[11] Exhibit R1, G1, 1-7.
The matter was heard by the Tribunal at a hearing in Canberra on 22 and 23 April 2020. The Applicant attended the hearing by video-link from the Cessnock Correctional Centre and was represented by his solicitor. He gave oral evidence at the hearing. The Applicant’s wife, Melissa Oke, and his stepson, Damon Mark Ward-Davidson, also gave oral evidence.
The material before the Tribunal consists of:
·Respondent’s Statement of Facts, Issues and Contentions (‘SFIC’) dated 9 April 2020;
·G documents (G1 to G37, pages 1 – 258) – Exhibit R1;
·Tender bundle (pages 1 – 269) – Exhibit R2;
·Applicant’s SFIC dated 27 March 2020;
·Statement of Mrs Melissa Oke dated 16 April 2020 with attached letter of reference from Ms Lisa Davidson – Exhibit A1;
·Further Statement of Mrs Melissa Oke dated 17 April 2020 – Exhibit A2; and
·Statement of Mr Damon Mark Ward-Davidson dated 17 April 2020 – Exhibit A3.
The Tribunal has reviewed all of the evidence before it and refers to all relevant materials below.
LEGISLATION
Subsection 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)         the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)             …; and
(b)         the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Paragraph 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Relevantly, pursuant to section 501(7)(c) of the Act, a person has a substantial criminal record if the person has been sentenced to ‘a term of imprisonment of 12 months or more’.
Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person.
Subsection 501CA(4) confers on the Minister the discretion to revoke the Mandatory Visa Cancellation Decision under section 501(3A). Subsection 501CA(4) provides:
4The 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.
Paragraph 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under section 501CA(4) not to revoke a decision to cancel a visa.
MINISTERIAL DIRECTION NO. 79
When considering whether to revoke the cancellation decision, the Tribunal is required under section 499(2A) of the Act to have regard to the Minister’s Direction. The relevant Direction is Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘the Direction’).
The Preamble to the Direction provides a framework for the guidance of decision-makers considering cancellation of a visa. Paragraph 6.1 of the Direction begins with a statement of Objectives, the first of which is as follows:
1The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
The Objectives are followed by paragraphs 6.2 and 6.3 described as General Guidance and Principles respectively. The Principles referred to in the General Guidance (and reproduced below) constitute a framework within which decision-makers apply the considerations in Part A, B, or C of the Direction.
The first paragraph of the General Guidance provides:
1The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
The following Principles are set out in paragraph 6.3:
1Australia 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.
2The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
3A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
4In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
5Australia has a low tolerance of any criminal or other serious conduct by people 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 in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
6Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
7The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1) of the Direction sets out how the discretion under section 501 of the Act is to be exercised:
1Informed by the principles in paragraph 6.3 above, a decision-maker:
(a)must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
(b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
In the Applicant’s case, Part C is applicable as it is directed to revocation requests made in relation to mandatory visa cancellation decisions made under section 501(3A) of the Act.
In applying any of the Parts, including Part C, paragraph 8 of the Direction sets out how the considerations are to be applied by a decision-maker. Decision-makers must take into account the primary and other considerations relevant to the individual case. The considerations differ among the three Parts and the reason for that difference is explained in paragraph 8(1):
… Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa Applicant should have no expectation that a visa application will be approved.
Part C of the Direction provides more specific considerations in determining whether to revoke a mandatory cancellation of a non-citizen’s visa. These include ‘primary considerations’ and ‘other considerations’. The primary considerations are:
(a)protection of the Australian community from criminal and other serious conduct;
(b)the best interests of minor children in Australia; and
(c)expectations of the Australian community.
The other considerations are:
(a)       international non-refoulement obligations;
(b)       strength, nature and duration of ties [to Australia];
(c)       impact on Australian business interests;
(d)impact on victims; and
(e)extent of impediments if removed.
Paragraph 8(2) of the Direction stipulates that in taking into account the primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 8(3) provides that ‘[b]oth primary and other considerations may weigh in favour of, or against … cancellation of the visa.’ Paragraphs 8(4) and (5) provide that primary considerations should be given greater weight than other considerations, and one or more primary considerations may outweigh other primary considerations.
ISSUES FOR DETERMINATION
Before the power in section 501CA(4) of the Act, to revoke the original decision, is enlivened, the decision-maker must be satisfied that the conditions for the exercise of the power have been met.
There is no dispute that the Applicant made the representations required by section 501CA(4)(a). The issue is whether the discretion to revoke the Mandatory Visa Cancellation Decision may be exercised. In Minister for Home Affairs v Buadromo[12] the Full Court of the Federal Court of Australia made the following observations in relation to section 501CA(4):
... there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view...[13]
[12] [2018] FCAFC 151.
[13] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
The issues for determination are:
(a)whether the Applicant passes the character test; and
(b)whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.
If the Applicant succeeds on either ground, the Tribunal must find that the Mandatory Visa Cancellation Decision must be revoked.
EVIDENCE BEFORE THE TRIBUNAL
Migration to Australia and marriage
The Applicant was born in Ile-Ife in Nigeria.[14] His father was an engineer and is now a retired politician and his mother was a nurse.[15] He has one brother and three sisters, one of whom is his twin.[16] The Applicant completed year 12 at high school and trained as a tiler and also worked as a cook.[17] In 2009, when he was aged 19 years, the Applicant went to Malaysia to undertake tertiary study.[18] He started a Diploma of Civil Engineering at City University located in Petaling Jaya.[19] He also had an import-export business when he was living in Malaysia.[20] The Applicant transferred to a Bachelor of Business Studies at the University of Ballarat and completed the degree and graduated in Melbourne.[21]
[14] Exhibit R1, G8, 56.
[15] Exhibit R1, G10, 81; Transcript, 72.
[16] Exhibit R1, G10, 81.
[17] Transcript, 73-74.
[18] Transcript. 12.
[19] Transcript. 12-13.
[20] Transcript, 74.
[21] Transcript, 13.
The Applicant came to Australia on a student visa in June 2014. He enrolled in the MBA Program at the University of Newcastle and studied part-time, but ceased study before he got married.[22]
[22] Transcript, 14, 47.
The Applicant met his wife at the end of 2014 at a mutual friend’s birthday party. They married on 18 April 2015.[23] After their marriage, the Applicant went to live with his wife and her son at their house in Ettalong.[24]
[23] Exhibit R1, G30, 132.
[24] Transcript, 29, 69.
Work in Australia
The Applicant bought a cocktail bar in Ettalong in 2015 about two months before he and his wife married.[25] He operated the bar with his wife for a period of seven or eight months. The bar was open two days a week on Saturday and Sunday. The Applicant only worked at the bar after his wife’s back condition began to deteriorate in August 2015. Before that time she was the manager of the bar.[26] When they bought the business, they thought it would be a good investment, but it made a big loss and they had to sell the business in January 2016.[27]
[25] Transcript, 29; Exhibit R1, G10, 82.
[26] Transcript, 30.
[27] Transcript, 14, 30; Exhibit R1, G10, 82.
The Applicant started a café in Newtown in Sydney after he and his wife married.[28] He would drive between his home on the central coast to Newtown every day. The Applicant told the Tribunal that he worked at the café seven days a week, and would start work at about 7:30am and would finish around 3pm or sometimes later.[29] He sold the café in April 2016 and it was transferred to the buyer in May 2016 when he was in remand.[30]
[28] Transcript, 31; Exhibit R1, G10, 82.
[29] Transcript, 32.
[30] Transcript, 31, 46.
After the café was sold, the Applicant worked as a tiler. The number of hours he worked per week would depend on how much work he had, but on average he worked eight hours per day / 40 hours per week.[31]
[31] Transcript, 32-33.
Criminal offending
A Nationally Coordinated Criminal History Check dated 25 March 2019 issued in respect of the Applicant shows that he has been convicted of three offences in Australia.[32] In his representations to the Department and the Tribunal, the Applicant did not dispute the convictions and sentences in the Nationally Coordinated Criminal History Check.
[32] Exhibit R1, G5, 30-31.
The factual circumstances surrounding the Applicant’s criminal offending, that Judge Conlon SC was satisfied of beyond reasonable doubt and consistent with the jury’s verdict, are outlined in His Honour’s sentencing remarks dated 29 September 2017.[33] On 22 April 2016, the victim attended the Applicant’s café for a trial shift after he responded to an advertisement she had placed on Gumtree looking for work.[34] She arrived at the café at 10am in the morning. After carrying out some initial training of the victim on the coffee machine, the Applicant offered her a tequila and coke, which she accepted.[35] The Applicant told the Tribunal that he did not drink any alcohol as he was busy serving customers.[36] He gave the victim a second tequila and coke with her lunch.[37] She told him she was feeling dizzy and he gave her another shot of tequila.[38]
[33] Exhibit R1, G5, 32-35
[34] Exhibit R1, G4, 32.
[35] Exhibit R1, G4, 33, Transcript, 40.
[36] Transcript, 42.
[37] Transcript, 42.
[38] Transcript, 42.
During the shift, the Applicant made unsolicited physical contact with the victim’s shoulder and waist, referring to it as a ‘massage’.[39] When asked how she felt about the Applicant touching her, the victim stated ‘I feel it's too close I don't like it’.[40] The Applicant told the Tribunal ‘there was no touching, it was all conversation.’[41]
[39] Exhibit R1, G4, 33.
[40] Exhibit R1, G4, 33.
[41] Transcript, 43.

At approximately 3:30pm as the café was closing, the victim was cleaning and she took some rubbish outside.[42] When she came back inside the Applicant hugged the victim, touched her on the shoulder and attempted to touch her legs. The victim objected and the Applicant told her to ‘relax’, attempted to lick her ear and pushed her onto a couch. The victim said ‘no stop’ and ‘I need to leave’ and the Applicant again said ‘relax’.[43]The victim tried to roll away from the Applicant who put his hands down her pants, pulled down her trousers and underwear and penetrated her vagina with his finger. The Applicant then removed his finger and penetrated the victim's vagina with his penis. Throughout the assault the victim stated she tried to get away from the Applicant however was unable due to his size. The victim stated she continued to say ‘stop’ and ‘get off’ throughout the assault. After a few minutes, the Applicant stopped and the victim left.[44]
[42] Exhibit R1, G4, 34.
[43] Exhibit R1, G4, 34.
[44] Exhibit R1, G4, 34-35
Following the assault, the victim returned home and appeared agitated to her housemate. The housemate questioned the victim and she told him what had occurred.[45] He encouraged the victim to make a report to Police.
[45] Exhibit R1, G4, 35-37.
When questioned about this offence during cross-examination, the Applicant denied that the sexual activity between himself and the victim was non-consensual, and claimed that the victim initiated the relationship.[46] He agreed that he did not use a condom.[47] He denied that he was much bigger than the victim.[48]
[46] Transcript, 43-44, 75.
[47] Transcript, 44.
[48] Transcript, 44.
The Applicant told the Tribunal that following the offence, he sent a text message to the victim to say she could return to the café the next day. Until the Police came, he thought everything was fine and that the victim would be back at work the next day.[49]
[49] Transcript, 76.
In his sentencing remarks, Judge Conlon SC stated that the victim was ‘a particularly impressive witness’ and was ‘clearly a witness of truth’.[50] He noted that inviting a person to a trial shift for potential employment involved a degree of trust on behalf of the employer, which the Applicant had clearly breached.[51] The Judge noted that the victim:
… is a very slightly built young lady. Clearly when one has regard to the size of the offender she was in a very vulnerable position and in my view she was simply helpless to protect herself from his forceful and determined advance.[52]
[50] Exhibit R1, G4, 32.
[51] Exhibit R1, G4, 38.
[52] Exhibit R1, G4, 38.
Judge Conlon SC considered a victim impact statement filed with the Court. He stated it was clear the ‘psychological injury and emotional harm; suffered by the victim would affect her for some time to come’, and the statement highlighted ‘the extreme seriousness of the offending conduct’.[53] In her statement, the victim stated that ‘for a while it was hard for me to trust people’, and described the incident as a ‘terrible nightmare’.[54]
[53] Exhibit R1, G4, 39.
[54] Exhibit R2, TB2, 129.
The Judge assessed the circumstances of the Applicant’s offending and was satisfied:
that the objective seriousness does fall below what would be termed the mid-range of objective seriousness for offences of this kind and that principally is based upon the absence of threats or violence and the relatively brief nature of the offending.[55]
[55] Exhibit R1, G4, 39.
His Honour concluded that ‘clearly no penalty other than imprisonment is appropriate’.[56]
[56] Exhibit R1, G4, 44.
Remorse and responsibility for offending
In his Personal Circumstances form dated 1 May 2019, the Applicant stated:
I did not commit this crime I have been accused of. I will fight for my innocence until the day I die.[57]
…
I made a bad judgment by cheating on my wife which … she has forgiven me. [58]
[57] Exhibit R1, G8, 65; see also G10, 88.
[58] Exhibit R1, G8, 65.
During his evidence at the hearing, the Applicant told the Tribunal:
All was consensual and I been found guilty but I still stand with what … happened at the time. But I’m not guilty. But I understand Australian justice system already find me guilty at this moment which I (indistinct) because, at this moment, I’m in gaol doing pretty much doing time for it. So, but I plead still not guilty …[59]
[59] Transcript, 16.
The Applicant stated that the time of the offence, he and his wife had ‘been going through some extremely hard times.’ He was ‘working day and night in Sydney and losing money at [his] café.’[60] His wife was ‘fighting the insurance company for her back injury’ and they were ‘constantly stressed and arguing’ and they discussed divorce.[61]
[60] Exhibit R1, G8, 65.
[61] Exhibit R1, G8, 65; Transcript, 37.
The Applicant told the Tribunal that he filed an appeal with the Court of Criminal Appeal against the conviction.[62] The appeal did not however proceed because the Applicant did not have the money to fund a private lawyer for the appeal.[63]
[62] Transcript, 16.
[63] Transcript, 16-18.
Time in custody and immigration detention
The Applicant was involved in a number of incidents while in gaol. On 21 November 2017, an incident was recorded at Kirkconnell Correctional Centre involving the Applicant when he was being provided with medication. He tried to hold open the clinic entry door and was told by a staff member to let go of the door. He was told to remove the gloves he was wearing and he ignored the staff member. He was asked again and he removed one glove and become argumentative and put his hand and arm inside the pill window. He was directed by the staff member to remove his arm and he continued to argue. He was informed by the staff member that if he failed to comply, he would face disciplinary action.[64] The Applicant told the Tribunal that he recalls this incident but he cannot remember whether he was angry with the staff member or what he said to him.[65] He believes he just was given his pills and then headed back to training.[66] He denied that he attempted to use his physical size to intimidate the staff member.[67]
[64] Exhibit R2, TB3, 202.
[65] Transcript, 47.
[66] Transcript, 48.
[67] Transcript, 49-51.
On 9 April 2018, the Applicant was placed on a behavioural management plan to be of good behavior and not receive any negative case notes or charges.[68]
[68] Exhibit R2, TB3, 204.
On 22 May 2018, the Applicant was involved in an incident when he became aggressive with and intimidated an officer when asking about additional overtime.[69] On 23 May 2018, the Applicant was charged with intimidation and given a reprimand and caution.[70]
[69] Exhibit R2, TB3, 203.
[70] Exhibit R2, TB3, 140.
On 4 July 2018, an incident was recorded when the Applicant raised his voice at a female staff member when he was unable to attend the education class of his choice.[71] The staff member was required to call the compound for assistance because the Applicant would not leave the education unit.[72] The Applicant was asked about this incident at the hearing and said that he might have spoken loudly, but he was not yelling at the staff member. He agreed that he said to her that it was ‘discrimination’ that was preventing him from being allowed to do the course, and he said he would take the matter to the Governor.[73] On 5 July 2018 the Applicant was found to have breached his good behavior bond because he had internal charges and negative case notes.[74]
[71] Exhibit R2, TB3, 204.
[72] Transcript, 58.
[73] Transcript, 55, 58.
[74] Exhibit R2, TB3, 204; Transcript, 59.
On 20 July 2018, the Applicant’s internal classification was regressed to B medium following the incidents of his intimidating behaviour towards gaol staff.[75] It was noted that correctional officers had received information that the Applicant had been ‘standing over’ other inmates when they were buying groceries, resulting in a search of the Applicant’s cell during which a large amount of grocery items were located.[76]
[75] Exhibit R2, TB3, 145.
[76] Exhibit R2, TB3, 145.
On 9 August 2018, the Applicant was asked to temporarily move to another cell and he refused to do so. He argued with the female officer and moved closer to her in an attempt to intimidate her. It was noted that the Applicant ‘does not follow direction, has a bad attitude towards Officers and can be very disrespectful.’[77]
[77] Exhibit R2, TB3, 207.
On 17 May 2019, the Applicant’s classification was elevated to C1, and he was transferred to Cessnock Correctional Centre which is closer to where his family live.[78]
[78] Exhibit R2, TB3, 141; Transcript, 66.
On 23 October 2019, the Applicant incurred a further institutional charge of failing to comply with a centre routine.[79]
[79] Exhibit R2, TB3, 217.
Mental health and psychological assessment
Case notes from the NSW Department of Corrective Services reveal that the Applicant reported as experiencing depression and hallucinogenic symptoms in July 2016.[80] On 16 September 2017, when he was on remand at Parklea Correctional Centre, the Applicant took a drug overdose of 62 tablets of the antipsychotic Quetiapine and the antidepressant Mirtzapine.[81] He was taken to Blacktown Hospital for observation and then to the prison hospital where he consulted a psychiatrist. The Applicant reported that ‘he had been depressed and hopeless about his situation.’[82]
[80] Exhibit R2, TB3, 193-196.
[81] Exhibit R2, TB2, 104; Exhibit R2, TB3, 209; Exhibit R2, TB3, 199; Transcript, 79.
[82] Exhibit R2, TB2, 100.
A report by Dr Marcello Rodrigues, psychologist, dated 27 September 2017 was tendered by the Applicant’s representative at the sentencing hearing.[83] Dr Rodrigues diagnosed the Applicant as suffering from Adjustment Disorder with a depressed mood or a Major Depressive Disorder.[84] He assessed the applicant as falling into the group of sex offenders who are at a “low risk of sexual reoffending” and considered that his prospects of rehabilitation were ‘encouraging’.[85]
[83] Exhibit R2, TB2, 99-109.
[84] Exhibit R2, TB2, 103.
[85] Exhibit R2, TB2, 104
The Applicant attempted suicide a second time on 20 July 2018 when he was in Kirkconnell Correctional Centre.[86] He was found incoherent and taken for medical treatment.[87] He told the Tribunal:
I was, like, I had (indistinct) my life. Just (indistinct) my life, you know. So I just very disappointed that I make my family and, you know, my wife and - lot of people look up to me and, like, yes, just too much depression (indistinct) that’s what happened.[88]
[86] Transcript, 76, 79; Exhibit R2, 208.
[87] Exhibit R2, TB3, 218.
[88] Transcript, 76.
On 8 August 2018, when the Applicant was in Bathurst Correctional Centre, he had a counselling session with a psychologist during which they discussed how his interpersonal communication and interactions may be perceived by others as hostile or threatening.[89] He told the psychologist about his perceived unjust treatment from custodial staff and him being unfairly placed on a management plan. At the end of the session he indicated that if he was not moved from Bathurst Correctional Centre to Junee Correctional Centre he would commence a hunger strike and discontinue his antipsychotic medication.[90]
[89] Exhibit R2, TB3, 206.
[90] Exhibit R2, TB3, 206.
In his Personal circumstances form, the Applicant reported as being diagnosed with severe depression and anxiety, as well as severe insomnia.[91] The Applicant told the Tribunal that since he has been in gaol he has been on an antipsychotic drug and two types of anti-depression medication.[92] He told the Tribunal that a side-effect of the drug is mood swings.[93] The Pre-release Report dated 8 January 2020 notes that the Applicant has ‘remained compliant with his medication regime and has indicated a willingness to continue his treatment upon release.’[94]
[91] Exhibit R1, G8,67.
[92] Transcript, 76, 78; Exhibit R1, G8, 67.
[93] Transcript, 76.
[94] Exhibit R2, TB3, 218.
The Applicant told the Tribunal that he sees a psychologist in gaol approximately once a week.[95] He currently has ‘a little bit of depression and anxiety.’[96] He feels that the medication he is taking is helping him.[97]
[95] Transcript, 77.
[96] Transcript, 78
[97] Transcript, 78.
Work and courses in gaol
The Applicant was reported as maintaining consistent employment in gaol and was employed in several Business Units including Engineering, Shop fitting / Joinery, Housing Unit Cleaner, Centre Hygiene, Buy up Distribution and Food Services. He was reported to be ‘a reliable worker with a good work ethic’ and attended his employment seven days a week.[98]
[98] Exhibit R2, TB3, 219.
The Applicant was a part of the Prison Fellowship Journey Program, an eight week course that examines the essence of the Christian faith. He regularly attended weekly Chapel services and Bible discussion groups and met with the Prison Chaplain on a number of occasions.[99]
[99] Exhibit R1, G15, 99.
While he was in gaol, the Applicant completed the following courses and programs:
·Positive Lifestyle Program for individuals – 19 July 2018;[100]
·TAFE NSW Certificate I in Basic Welding – 29 June 2018;[101]
·TAFE NSW First Aid course – 27 April 2018;[102]
·Hygienic practices for food safety – 22 December 2017;[103]
·Certificate I in Information, Digital Media and Technology – 18 October 2018;[104]
·Digital Literacy Skill Set – 11 June 2018;[105]
·Triple P Level 4 Parenting Program – 13 November 2018.[106]
[100] Exhibit R1, G10, 86.
[100] Exhibit R1, G28, 116.
[101] Exhibit R1, G28, 120-121.
[102] Exhibit R1, G28, 119.
[103] Exhibit R1, G28, 122.
[104] Exhibit R2, TB3, 130.
[105] Exhibit R1, G28, 118.
[106] Exhibit R1, G28, 117.
Risk of re-offending
In his statement in support of his request for revocation, the Applicant stated:
I am not a risk to the Australian community. I love Australia and I want to live and abide by every Australian law. I was on bail for almost a year and reported to the police station two days a week. I never missed a day and I never caused any problems with anyone in the community.[107]
[107] Exhibit R1, G10, 86.
In Personal circumstances form dated 1 May 2019, the Applicant stated:
I am at NO RISK of re-offending again. I have learnt how to deal with stresses and how to communicate with my wife. I will never look at another female again.
…
The jail has stated that I have a LOW L-SIK. I will never put myself in a situation that would make be lose my family and my freedom.[108]
[108] Exhibit R1, G8, 65.
A STATIC-99R assessment conducted on 19 January 2018 found the Applicant to have an ‘Above Average Risk’ of committing a further sexual offence.[109] A Level of Service Inventory – Revised (LSI-R) assessment conducted on 1 February 2018 found the Applicant to have a ‘Medium to Low’ risk of generalised reoffending.[110]
[109] Exhibit R2, TB3, 181-182.
[110] Exhibit R2, TB3, 151.
The Pre-release report dated 8 January 2020 assesses the Applicant as ‘Medium/High risk of sexual reoffending.’[111]
[111] Exhibit R2, TB3, 223.
Rehabilitation
The Applicant was initially referred to a sex offender program in December 2017 but he did not proceed because he was waiting to see what would happen in relation to his appeal.[112] He was referred to a custody-based Sex Offender Program in April 2018. As at January 2020, this referral remained unprocessed by NSW Corrections.[113] The Applicant told the Tribunal that he will not be granted parole until he has completed the program.[114]
[112] Transcript, 74.
[113] Exhibit R2, TB3, 215.
[114] Transcript, 78.
Question 2 of the consent form the Applicant completed for the sex offenders program, asks ‘What are your reasons for wanting to participate in sex offenders programs?’ The Applicant wrote: ‘I was told to do it and without doing the program I may not get my parole. So I’m interested in doing it.’. Question 3 asks ‘What issues/problems do you think you need to address?’ The Applicant wrote, ‘I have nothing to address at this point in time.’[115]
[115] Exhibit R2, TB3, 180.
The Pre-release report dated 8 January 2020 states:
[The Applicant] has demonstrated little to no attitudinal shift regarding the commission of the offences and continues to deny any wrongdoing on his part. He fails to recognize that there is a victim apart from himself and lacks insight into the impact of his offending has had upon the victim.
…
It remains a serious concern that [the Applicant] continues to deny the commission of the offences and thus displays no insight into the impact on the victim. It would appear that the only acknowledgement he identifies is in relation to his own self-interest and how his time in custody has impacted his wife and family.[116]
[116] Exhibit R2, TB3, 222.
Stepson and nieces and nephews
The Applicant has no biological children. Damon Ward-Davison is the son of the Applicant’s wife. In his Personal circumstances form, the Applicant stated that he plays a significant role in Damon’s life and they speak on the phone every day. Damon looks up to him as a “father figure”.[117] Before he went to gaol he would help Damon with his homework and taught him to cook some dishes. They would work out together and go to the park and play rugby and basketball. They ‘always had a lot of fun together.’[118] The Applicant wrote that Damon has been ‘unmotivated to go to school’ since he has been in gaol. He fears that if he is deported, Damon ‘will not handle it emotionally …’[119]
[117] Exhibit R1, G8, 61
[118] Exhibit R1, G8, 61.
[119] Exhibit R1, G8, 61.
The Applicant told the Tribunal that his stepson is 17 years old and he was 13 years old when he was arrested and taken into custody. He was in custody for three months and was then released on bail on 8 September 2016 for a period of 11 months.[120] Following the guilty verdict on 3 August 2017 he was taken back into custody.[121] The Applicant agreed that he lived in the same household as his wife and step-son for less than two years.[122]
[120] Exhibit R1, G5, 48.
[121] Transcript, 67.
[122] Transcript, 67.
The Applicant has four minor nieces and nephews: Tahni Rose Ward aged 17, Brock Thomas Ward aged 15, Kaden Scott Ward aged 10 and Mackenzie Lee Ward aged 1. In his Personal circumstances form, the Applicant stated that he spends time with his nieces and nephews regularly at home and the beach and they speak on the phone and visit him in prison.[123] He stated that his nieces and nephews all live with their biological parents, and his brother-in-law would regularly bring the children to the Applicant’s house and they would regularly go on outings.[124] If he is deported, the children ‘will be very upset’.[125] The Applicant has not yet met the youngest niece, Mackenzie, who was born in November 2019 whilst the Applicant was incarcerated.
[123] Exhibit R1, G8, 63.
[124] Exhibit R1, G8, 63
[125] Exhibit R1, G8, 63.
An inmate profile document dated 10 July 2018 shows that none of the Applicant’s nieces or nephews had visited him in gaol within the previous 12 months.[126] The Applicant confirmed that none of his nieces or nephews visited him in prison. He said that he last spoke to them at Christmas in December 2019.[127]
[126] Exhibit R2, TB3, 168.
[127] Transcript, 72.
Other family members
The Applicant told the Tribunal that his parents are still living in Nigeria. He speaks to his mother on the phone regularly. His three sisters live in Malaysia, the United States and France/Cyprus and his brother lives in Nigeria but he and his family are moving to the United Kingdom.[128] His siblings speak to his wife and she tells them about the Applicant.[129]
[128] Transcript, 73.
[129] Transcript, 73.
Plans for the future
In a statement dated 9 November 2018, the Applicant wrote that if he is released he will return back to his tiling job and will help his stepson to get his tiling apprenticeship. He will support his wife and will cook and clean the house as his wife is unable to do so because of her medical problems. He will take his wife to any medical appointments and will support her mentally and physically and be a supportive husband. He intends to save to buy a house and return to Toukley Uniting Church each Sunday with his family. He will be a positive and supportive role model to Damon by giving him advice. He plans to start a tiling business with Damon and to employ full-time staff.[130]
[130] Exhibit R1, G10, 88.
Impediments on return

In Personal Circumstances Form, the Applicant outlined his concerns about returning to Nigeria:
I fear for my life in Nigeria. Nigeria has ongoing conflict between tribes and Muslims killing millions of Christians. I would rather commit suicide than live there. I haven’t lived in Nigeria for over 10 years and I have no strong ties there. I was traumatised as a boy due to the Ile-Ife Mode Keke war in my home town.
Nigeria’s employment rate is extremely poor. I would not find work. I would live in poverty. I would not feel safe. I would be a target for violence because I am a Christian. I am from Ile-Ife and I have lived abroad so they will try to rob and kill me because they will think I have money.[131]
[131] Exhibit R1, G8, 68.
In his Statement of Facts, Issues and Contentions, the Applicant did not make claims that he is owed non-refoulement obligations other than noting that Nigeria “remains a fractious and brittle state seared on-going tribal and religious grounds.’[132]
[132] Applicant’s SFIC, 5.
The Applicant provided an article dated 23 July 2018 titled ‘The Ife and Modakeke Conflict and How It Was Resolved’ in support of the revocation request.[133] It details the history of a long-standing conflict between the Ife (the tribe the Applicant claims he belongs to) and another tribe named the Modakeke. It notes that the most recent war was fought between 1997 and 2003. It also notes that in February 2009 a peace pact was signed between the two tribes.
[133] Exhibit R1, G33, 161-172.
The Applicant also provided two online articles which detail attacks on Christians in Nigeria. The first refers to attacks carried out in eastern Nigeria by a group of terrorists which resulted in “scores” of Christians killed,[134] The second article refers to an attack on a Catholic church in central Nigeria carried out by Muslim Fulani herdsmen which resulted in the death of 17 parishioners and two priests as well as a multitude of other conflicts between Christians and Muslims.[135]
[134] Exhibit R1, G33, 173-176.
[135] Exhibit R1, G33, 177-192.
The Applicant also provided a report titled ‘Nigeria 2017 Crime & Safety Report: Lagos by the U.S. Department of State Overseas Security Advisory Council (OSAC report).[136] It states that crime is a risk throughout the country and that US citizens, other expatriates and Nigerians have been the subject of armed robberies.[137] It also reports that kidnapping for ransom is a lucrative trade nationwide and that criminal organisations target ‘affluent, high-profile Nigerians and expatriates throughout southern Nigeria’.[138]
Evidence of witnesses
[136] Exhibit R1, G34, 197-207.
[137] Exhibit R1, G34, 197-198.
[138] Exhibit R1, G34, 202.
Mrs Melissa Oke – Applicant’s wife
In her statement dated 17 April 2020, the Applicant’s wife stated that she believes that the Applicant is innocent of the offences for which he has been convicted:
I am aware of all charges against my Husband. I have continued to support Elijah thru the entire case because I know his character well and I know he is innocent of all charges. We will continue to fight for his innocence because I know it’s not possible for him to do what he was accused of.
I am not sure you would be aware that crucial evidence went ‘missing’ and some evidence was not presented during Elijah’s trial. Elijah was poorly represented and had we known the law at that time we would have called for a mistrial. However I’m not sure how long it will take but I will make sure that his sentence is appealed as I believe the evidence that went missing from Newtown police station showed video and audio proof that Elijah was innocent of all of the charges.
Elijah did however have a huge lapse in judgement as he did cheat on me and admitted to that for which I have forgiven him for.[139]
[139] Exhibit A2, 1.
Mrs Oke described her relationship with the Applicant and her medical conditions arising from a workplace incident:
Myself and Elijah continue to have a strong loving and supportive relationship for which I am very grateful for. Elijah has given me the support and love that I need as I have been going thru a lot of hardship since August 2015 when I injured my back at work. I had to fight thru the court system to have medical treatment and I did not win my case until September 2016.
In (sic) June 27 2018 I had extensive spinal and nerve surgery. Elijah was at the hospital morning and night whilst also looking after his step son Damon and our family pets. Elijah was working in Tiling and paying all of the bills as I had not been paid since August 2015. I could not walk, sit up or drive for 4 months following my surgery. I have been on many medications since and in order to drive anywhere I have to stop taking them so they do not affect my driving abilities. I spent 4 and a half weeks in Lingard private hospital following the surgery and then came home to Elijah helping me do everything.
Elijah then had his trial and was sentenced to jail. I literally fell apart without him.
Mrs Oke outlined the hardship she and Damon have faced since the Applicant has been in gaol:
I have struggled with my back pain, depression, anxiety, insomnia and my ability to do anything for myself due to my mobility issues. I have a Cleaner who comes once a week for 2 hours even though the house needs cleaning daily. I cannot afford to pay the bills by myself and I continually face financial hardship.
My son Damon was a Top student at school before all of this happened and since Elijah has been gone he was not motivated to get up and go to school. Damon failed year 10 and only returned to school in 2019 5 times as he was made to repeat year 10.
Myself and Damon cannot sleep at night as we both think about the future and worry too much about Elijah and what is going to happen if he is deported. We have had the electricity cut off twice due to me not having money to pay it. I had to sign up to another company twice and have a bill of almost $4,000 to pay which I’m unable to. My fridge, freezer and cupboards are mostly empty because I cannot afford to shop for a lot of food. Most weeks after paying rent and some of the utility bills I am left with a $5 a day budget for food. When Elijah was here I didn’t have to stress about the bills and food as he would pay all of them and the fridge , freezer and cupboards were always full. He looked after us very well.[140]
[140] Exhibit A2, 1.
The Applicant’s wife described the likely impact on her and Damon if the Applicant were to be returned to Nigeria:
If Elijah is deported I won’t cope mentally or physically. I have been suicidal which is why I am also on anti-depressants. Sometimes I can’t afford them and when I don’t take them my mental health deteriorates quite quickly. I’m finding it difficult in daily life as I feel like I’m living in limbo not knowing my future and not knowing how I can possibly deal with losing my Husband.
…
I am extremely concerned for Elijah, myself and Damon if Elijah was to be deported because Nigeria is not a good safe country and I know how much it will affect Elijah, myself and Damon if we were to lose each other. We are a family and we want to stay being a family together.[141]
[141] Exhibit A2, 2.
She further explained the reasons why she is unable to relocate to or visit Nigeria and how this would impact on their marriage:
I cannot live in Nigeria. It’s an extremely volatile Country and I would not risk my life going there. I would not be able to travel that far nor would I receive any adequate medical treatment. I would not be able to visit due to my health and finances and we would not be able to keep in contact due to the costs that would be involved. Therefore I would literally be completely alone and the marriage would surely fail.[142]
[142] Exhibit A2, 2.
Mrs Oke described how the Applicant will assist her and their plans for the future together if the Applicant is allowed to remain in Australia:
I have found found since my injury and surgeries I am unable to do a lot of things for myself. If Elijah was able to return to our home he would be able to shop for the groceries, pay the bills, cook, manage my medication, drive me to medical appointments, clean the house, make the bed and wash the sheets and blankets (my cleaner never has enough time to do this, wash my clothes and help me to shower and dress. Elijah would be helping me in all of my daily tasks and he would be making sure I don't continue to miss my psychology, physiotherapy and hydrotherapy appointments due to me not being able to drive.
Elijah would save to buy a house so that it could be modified to help me with my disability.
This has been an extremely hard traumatic chapter in all our lives and we wish to learn from this and this and leave it all behind and start our life again happily. I will forever continue to support my Husband as I know he is a good kind hearted and thoughtful person. He is a hard worker and he has contributed to the Australian community by employing many people both in his café and cocktail bar that have now been sold and his Tiling business which he can go back to if released to come home to me and Damon.
Elijah will also be teaching Damon the trade of Tiling and they will have their own business together.[143]
[143] Exhibit A2, 3.
In her oral evidence, Mrs Oke told the Tribunal that she does not have the support of her family as she has a strained relationship with her mother and sister and they do not visit her at home.[144]
[144] Transcript, 85.
Damon Ward-Davidson – Applicant’s stepson
In his statement dated 17 April 2020, Damon describes his relationship with the Applicant:
For almost 6 years I have looked up to Elijah as my father as I do not see my biological father. Elijah and myself have a good bond, we used to play basketball together, go kart riding, he would teach me how to work out and help me lift weights, we would go to Church together, he would come and watch me play Rugby league, drive me to school and I would even go to work with him on construction sites and when he began tiling he would take me to work on the weekends and teach me and also so I could earn some money.[145]
…
I know that Elijah is a good kind, hardworking person and we love him very much and I know he would never intentionally hurt anyone. I know Elijah is very remorseful for what happened.[146]
[145] Exhibit A3, p1.
[146] Exhibit A3, p3.
In his oral evidence at the hearing, Damon stated that he always has believed that the Applicant is innocent of the offences.[147]
[147] Transcript, 106.
In his statement, Damon explained how the Applicant would help his mother if he were to return home:
If Elijah was to return home it means Mum will get the care and help she needs from her Husband as he would be able to help her with her personal needs.
Elijah would be able to drive Mum to all of her appointments that she often misses because of her pain. Elijah would be able to cook, clean, pay the bills and manage mums medication for her. I think if Elijah was around, mums condition would not worsen as quickly because he would be able to take mum to her physio, Psychology and hydrotherapy appointments. Mum currently does not attend these appointments due to her inability to drive.[148]
[148] Exhibit A3, p2-3
He described the impact on him and his mother if the Applicant is returned and the reasons why they cannot go with him to Nigeria:
I am worried for my mother’s mental health if Elijah is deported and I know this will also cause me too much sadness as I already don't see my biological father and I won't handle losing Elijah.
If Elijah is deported we cannot follow him back to Nigeria for many reasons:
1.My mother would not get the medical help she needs and could not possibly travel that far.
2.Nigeria is not a safe country to live in.
3.My Mother even if she could travel that far would not be able to afford to travel to Nigeria.[149]
[149] Exhibit A3, p3.
Damon told the Tribunal that since the Applicant has been in gaol, that is for the past two and a half years, he has not gone to school.[150] He stays at home to assist his mother about half the time, and the rest of the time he spends time with his friends. He last saw the Applicant at Christmas when he visited him in gaol.[151]
[150] Transcript p109.
[151] Transcript p110.
Statements in support
Friends and family members of the Applicant provided statements in support of his request for revocation, including his mother[152] and elder sister.[153]
[152] Exhibit R1, G18, 103-104.
[153] Exhibit R1, G17, 102
A number of the statements mention that the Applicant either ‘made some wrong decisions’[154] or made ‘mistakes’[155] and that the author believes the Applicant is ‘innocent’ of the offences.[156]
EXERCISE OF DISCRETION TO REVOKE MANDATORY CANCELLATION
[154] Exhibit R1, G16, 100.
[155] Exhibit R1, G24, 112.
[156] Exhibit R1, G24, 112; Exhibit R1, G25, 114; Exhibit R1, G20, 107.
Does the Applicant pass the character test?
The Applicant did not dispute the Respondent’s contention that he does not pass the character test. The evidence before the Tribunal is that on 29 September 2017, the Applicant was convicted of two offences and sentenced to a term of imprisonment greater than 12 months. As such, the Tribunal is satisfied that the Applicant does not pass the character test prescribed in section 501(6)(a) of the Act, as he has ‘a substantial criminal record’ as defined in section 501(7)(c). The Tribunal is also satisfied, for the purposes of section 501(3A)(b) of the Act, that the Applicant was serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the state of New South Wales.
For these reasons, the Applicant cannot rely on section 501CA(4)(b)(i) for revocation of the Mandatory Visa Cancellation Decision.
Is there ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked?
In determining whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, the Tribunal must take into account the considerations in Part C of the Direction, informed by the Principles in paragraph 6.3.
PRIMARY CONSIDERATIONS
Primary Consideration A – Protection of the Australian community
Primary Consideration A of Part C is the Protection of the Australian Community. Paragraph 13.1(1) of the Direction provides:
When considering protection of the Australian community, decisionmakers should have regard to the principle 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. Remaining in Australia is a privilege that Australia confers on noncitizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
Paragraph 13.1(2) directs that decision-makers should also 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.
Paragraph 13.1.1(1) sets out a number of factors to which a decision-maker must have regard in considering this matter. In the circumstances of this case, the following factors may be relevant:
(a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b) The principle that crimes of a violent nature against women or children are viewed very seriously regardless of the sentence imposed;
(c)   The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d) Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
(e) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)    ...
(g) …
(h) …
(i)    …
(a) Nature and seriousness of the Applicant’s conduct to date
As required by paragraph 13.1(2)(a) of the Direction, the Tribunal finds that the Applicant’s criminal offending is very serious. In making this finding the Tribunal has had regard to the factors listed in paragraph 13.1.1(1), specifically sub-paragraphs (a), (b) and (c).
Having regard to sub-paragraphs 13.1.1(1)(a) and (b) of the Direction, the evidence before the Tribunal is that a jury found beyond reasonable doubt that the Applicant committed three sexual offences, namely, two counts of Sexual intercourse without consent and one count of Assault with act of indecency against his victim, a young woman. In his sentencing remarks, Judge Conlon SC assessed the objective seriousness of the offences as in the ‘mid-range’ for reason that the offending was relatively brief and did not include threats or violence against the victim. As the offences committed by the Applicant are sexual crimes against a woman the Tribunal finds, as recognised in sub-paragraphs 13.1.1(1)(a) and (b) of the Direction, that the Applicant’s criminal offending is very serious.
The evidence before the Tribunal is that the Applicant’s victim, a foreign national, attended his café after being invited by him to undertake a ‘trial shift’. The victim had not previously met the Applicant and it was understood that she would not be paid for the work she undertook as part of this ‘trial’. In working the trial shift the victim was placed in a vulnerable position by the Applicant above that of the employer/employee relationship. She was not being paid for her labour, and was required to meet the Applicant’s demands in order to secure ongoing employment. As Judge Conlon SC noted, the Applicant breached the trust relationship between the two in such circumstances.
The evidence is that the Applicant gave the victim alcohol prior to his offending against her and did not use a condom when he sexually assaulted her. These are factors which aggravate further the seriousness of the Applicant’s offending. In addition, the Applicant’s victim, was described by Judge Conlon as a ‘slightly built young lady’. As His Honour recognised, the victim was ‘in a very vulnerable position’ and ‘was simply helpless to protect herself from [the Applicant’s] forceful and determined advance.’
On the basis of the evidence before it, the Tribunal finds that the Applicant’s crime was against a vulnerable young woman. As recognised in sub-paragraph 13.1.1(1)(c) of the Direction, crimes committed against vulnerable members of the community are serious.
Having regard to sub-paragraph 13.1.1(1)(d) of the Direction, the Tribunal notes that, despite the Applicant having no prior criminal record, he was sentenced to a significant term of imprisonment, being five years. This sentence considerably exceeds the length of sentence required to satisfy the definition of a ‘substantial criminal record’ in s 501(7) of the Act. Whereas the sentence is not at the higher end of the sentencing range, this does not detract from the very serious nature of the Applicant’s criminal offending. The custodial sentences imposed on the Applicant by the Court are an objective indicator of the seriousness of his criminal offending. Sentences involving terms of imprisonment are a last resort in the sentencing hierarchy, which reflects the objective seriousness of the offences involved: Pavey and Minister for Home Affairs [2019] AATA 4198 at [44]; PNLB v Minister for Immigration and Border Protection [2018] AATA 162 at [22] and Saleh v Minister for Immigration and Border Protection (Migration) [2017] AATA 367 at [50]. The fact that Judge Conlon SC found that no penalty other than imprisonment was appropriate for the Applicant’s crimes, further demonstrates the very serious nature of the Applicant’s criminal offending.

On the basis of the evidence before it, and having regard to the considerations in paragraph 13.1.1 of the Direction, the Tribunal finds that the Applicant’s criminal conduct was a sexual crime against a young and vulnerable woman and is therefore very serious. The seriousness of the Applicant’s criminal offending weighs heavily against the exercise of the discretion to revoke the Mandatory Visa Cancellation Decision.
(b) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
In assessing the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must have regard to paragraph 13.1.2(1) of the Direction:
In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(c)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(d)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for the rehabilitative courses to be undertaken).
In considering the likelihood that the Applicant will engage in further criminal or other serious conduct, the Tribunal has had regard to the Applicant’s evidence to the Tribunal, the representations he made in support of his request for revocation of the Mandatory Visa Cancellation Decision, and the evidence of his friends and family members and those who provided letters of support.
Having regard to the nature of the harm to individuals or the Australian community if the Applicant were to re-offend, as required by sub-paragraph 13.1.2(1)(a) of the Direction, the Tribunal finds that any future re-offending by the Applicant may involve serious physical and/or psychological harm to members of the Australian community, including young and/or vulnerable women. Sexual assault can result in very serious psychological damage and emotional harm to victims, with long-lasting effects. This ongoing impact is reflected in the victim’s statement in which she describes the offence as a ‘terrible nightmare’, leading her to find it hard to trust people.
In relation to the likelihood of the Applicant engaging in further criminal or other serious conduct, the Tribunal has taken into account available information and evidence on the risk of him re-offending as required by sub-paragraph 13.1.2(1)(b) of the Direction. The Applicant’s representative conceded that it cannot be said that that there is not a risk to the Australian community.[157] The Applicant himself submits that he represents no risk to any member of the Australian community. He continues to claim he is innocent, and states that the likelihood that he will engage in the criminal conduct for which he was convicted is very low.
[157] Transcript, 116.
The evidence before the Tribunal is that at the time of his sentencing in September 2017, the Applicant was said by his psychologist to be at a ‘low risk of sexual reoffending’.[158] In January 2018, the STATIC-99R assessment conducted by a New South Wales Corrections psychologist found the Applicant had an ‘above average risk’ of committing a further sexual offence.[159] In February 2018, the LSI-R assessed the Applicant at a ‘medium to low’ risk of general re-offending. More recently, the January 2020 pre-release report in relation to the Applicant assesses him as ‘medium/high risk of sexual reoffending’.[160]
[158] Exhibit R1, G4, 41.
[159] Exhibit R2, TB3, 181.
[160] Exhibit R2, TB3, 220, 221.
The assessment in the pre-release report notes that the Applicant has made ‘no attitudinal shift’ in relation to his commission of the offences and continues to deny wrongdoing on his part.[161] The Applicant’s representative conceded that the Applicant has not expressed any guilt or shame, nor has he shown any remorse or contrition for his criminal actions.[162] Nor has he expressed any concern for the victim or demonstrated any insight into the impact of his crimes on her. It is apparent from the Applicant’s evidence to the Tribunal, and the evidence contained in the documentary materials, including his written statements, that the acknowledgement by the Applicant of his offending has been limited to the impact on himself and his family, rather than recognising the effect of his behaviour on the victim.
[161] Exhibit R2,
[162] Transcript, 116.
The Applicant, his wife and stepson, and many of his supporters maintain that the Applicant is not guilty of the offences for which he was convicted. The Applicant’s representative accepts that the Tribunal is unable to contradict or go behind the Court’s findings of criminal guilt and accept the Applicant’s claimed innocence.[163] In HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202, the Full Federal Court recognised the policy reasons that require the Tribunal to accept the findings of criminal guilt made by the District Court. McKerracher J stated at [76]-[77]:
… consistently with the line of authority which stems from mid-twentieth century decisions dealing with this topic, there could be no sound or legitimate policy reason to assume that the legislature intended to depart from some decades of authority which precluded facts being relied upon which necessarily contradicted the underlying facts supporting the sentence. No such legislative intent is expressed. None can be inferred. None should be found or assumed, in the absence of a clear statement to such effect.
As a matter of policy, it would be highly undesirable if [the] Minister or the Tribunal exercising a decision-making power that is founded on an earlier decision of a criminal court could, in effect, challenge the propriety or correctness of that decision, or reopen findings on which the decision was necessarily based … The adjudgment of guilt, and the determination of the punishment to be imposed as a consequence (including a sentence of imprisonment), fall within the central concept of judicial power. It is inconsistent with this principle at the heart of the separation of powers to suggest that an administrative decision-maker could come to a factual conclusion contrary to that of a court when making an adjudgment and punishment of criminal guilt which is, in turn, the precondition to that administrative decision-maker’s power.[164]
[163] Transcript. 116.
[164] See also Colvin J at [179]-[182].
In LQZW and Minister for Home Affairs (Migration) [2019] AATA 93, LQZW was convicted of sexual offences against a child. Like the Applicant, he maintained his innocence. Deputy President Boyle observed at [90]-[92]:
Notwithstanding the undoubted sincerity of the statements made by the Applicant’s partner and his mother, their assessments of the likelihood of the Applicant reoffending are based on the Applicant not having committed the sexual offences in the first place. However, the legal positon is that the Tribunal cannot go behind or impugn the conviction which triggered the cancellation of the Applicant’s visa which, in this case, was the Applicant’s conviction for the sexual offences.
…
The evidence of the Applicant’s partner and the Applicant’s mother in relation to the likelihood of the Applicant reoffending must therefore be viewed through the prism of being from people who love the Applicant and who do not accept that he committed the sexual offences. The Tribunal has to accept that he did commit the sexual offences and the Tribunal’s assessment of the likelihood of the Applicant reoffending has to be made on that basis.
The Tribunal accepts and appreciates that the Applicant’s wife and stepson believe the Applicant is not guilty of the offences. However, the Tribunal must accept the findings of the jury that the Applicant committed the sexual offences and make its assessment of the likelihood of the Applicant reoffending on this basis. The jury and the Court had the benefit of hearing the oral evidence of the victim and other witnesses as well as the Applicant and found beyond reasonable doubt that he committed the offences.
The Tribunal finds there are a number of factors that are indicative of moderate to high risk of the Applicant reoffending. These include his denial that the sexual activity between him and his victim was non-consensual, his lack of remorse and insight into the offending, and his unwillingness to fully engage with the custody-based sex offenders program. The evidence before the Tribunal is that, whereas the Applicant accepts he must participate in this program in order to be eligible for parole, he does not believe that he has any issues to address.[165] This ongoing refusal by the Applicant to acknowledge the criminal and serious nature of his actions against the victim, indicates that he lacks any insight into his criminal behaviour. This supports a finding that there is an ongoing risk that the Applicant may in the future again engage in non-consensual sexual activity and commit further sexual offences.
[165] Exhibit R2, TB3, 180.
The Applicant’s behaviour in gaol, particularly the intimidatory nature of his dealings with staff members, indicates that he continues to act in a pushy if not aggressive manner when he interacts with others, particularly when they do not agree to his demands. This behaviour is indicative of a risk of the Applicant engaging in generalised criminal offending if he were to re-enter the community.
The Tribunal finds there are a number of factors that support a finding that the risk of the Applicant reoffending is moderate. These include the psychological assessment by Dr Rodrigues that the Applicant falls into a group of sex offenders who are at low risk of re-offending and his period on bail of 11 months when he did not re-offend. The Applicant’s desire to return home to provide financial, household and emotional support to his wife and assist with the care of his stepson will provide protective factors against him re-offending. The sale by the Applicant of his café business will reduce the time he spends commuting, and he has an existing tiling business that will provide him with regular work and income. In addition, he has sought counselling and psychiatric support in gaol and has learned how to better deal with stress. The Applicant is motivated not to reoffend so that he can remain in Australia and he will have the help of his family and friends who will support his rehabilitation in the community;
On the basis of the evidence before it, and taking into account available information and evidence on the risk of the Applicant re-offending, the Tribunal finds that the likelihood of the Applicant engaging in further criminal or other serious conduct is at the moderate level and that this level of risk is unacceptable. The Tribunal finds that there is a real risk that the applicant will reoffend, and that the need for protection of the community from that risk weighs heavily against revocation of the Mandatory Visa Cancellation Decision.
For the reasons above, and applying the guidance in paragraphs 13.1.1(1) and 13.1.2(1) of the Direction, Primary Consideration A, on balance, weighs strongly against the revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration B – The best interests of minor children in Australia affected by the decision
Primary Consideration B of Part C in paragraph 13.2 of the Direction requires decision-makers to make a determination about whether revocation is, or is not, in the best interests of the child.
1)    Decision-makers must make a determination about whether revocation is in the best interests of the child.
2)    This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
3)    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.
4)    In considering the best interests of the child, the following factors must be considered where relevant:
a)    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);
b)    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;
c)    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;
d)    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;
e)    Whether there are other persons who already fulfil a parental role in relation to the child;
f)     Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)    …
h)    ...
This consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made. The Applicant’s stepson, Damon, will turn 18 in September 2020.
Having regard to the factors in sub-paragraph 13.2(4)(a) of the Direction, the Tribunal has considered the nature and duration of the Applicant’s relationship with his stepson. The Applicant has only been part of Damon’s life since the Applicant’s marriage to Damon’s mother in April 2015 when he was aged 13 years. They lived together in the same house with Mrs Oke for a period of almost two years before the Applicant went into custody in August 2017. The Applicant has now been in gaol for a period of nearly three years. The Applicant’s day-to-day involvement with Damon has therefore been largely limited to visits and phone calls. Damon has not seen the Applicant since December 2019. The Tribunal accepts that the Applicant is an important person in Damon’s life and that he regards him as a ‘father figure’.[166] Despite a long period of physical absence from his life, Damon is very close to the Applicant and plans to work with him as a tiler and eventually establish a business together.
[166] Transcript, 104.
Having regard to the factors in sub-paragraph 13.2(4)(b) the Tribunal has considered the extent to which the Applicant is likely to play a positive parental role in the future, taking into account the length of time until Damon turns 18. The Tribunal finds that any impact of non-revocation of the cancellation of the Applicant’s visa on Damon’s best interests can only be given limited weight in circumstances where Damon will be turning 18 years of age in less than five months’ time.
As required by sub-paragraph 13.2(4)(e), the Tribunal notes that Damon’s mother already fulfils a parental role in his life and she provides for his daily needs, including financially while he is not working or going to school. Having regard to the likely effect of any separation on Damon from the Applicant as recognised in sub-paragraph 13.2(4)(d) of the Direction, the Tribunal notes that there does not appear to be any impediment to them maintaining contact by telephone or other electronic means if he is removed from Australia.
The Respondent concedes, and the Tribunal finds, that it is in Damon’s best interests for the Applicant to remain in Australia so that he can maintain his relationship with the Applicant and also provide more assistance to his mother than Damon is currently providing.
The Tribunal has also considered the best interests of the Applicant’s nieces and nephews, Tahni, Brock, Kaden and Mackenzie. The Tribunal finds that the Applicant’s good relationship with Tahni, Brock and Kaden has been affected by their physical distance during the three years he has been incarcerated and they have not visited him in gaol.[167] The relationship between the Applicant and his nieces and nephews is non-parental and there are others who fulfil a parental role in relation to the children. The Tribunal finds, having regard particularly to the factors in sub-paragraph 13.2(4)(a) and (e), that the impact on the Applicant’s nieces and nephews of the Applicant’s removal from Australia should be given limited weight in circumstances where the relationship is non-parental and there are other persons who fulfil a parental role.
[167] Transcript, 72.
The Tribunal finds that it is likely in the best interests of Tahni, Brock and Kaden to re-establish their relationship with the Applicant, and for Mackenzie to meet and come to know the Applicant,.
On the basis of the evidence before it, the Tribunal finds that Primary Consideration B weighs in favour of the revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration C – The expectations of the Australian community
Primary Consideration C of Part C in paragraph 13.3(1) of the Direction states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
In a number of recent decisions, the Federal Court has considered the scope and application of this primary consideration. In YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (‘YNQY’), Mortimer J observed as follows in relation to the consideration detailed in this paragraph of the Direction:
[76] In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] …It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese [2016] FCA 348; 248 FCR 296 at [64]-[66]).
In Afu v Minister for Home Affairs [2018] FCA 1311, Bromwich J said at [85]:
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65 ...The Tribunal was required to give effect to those norms which is precisely what it did.

Last year, the Federal Court delivered two decisions relating to the approach in determining the expectations of the Australian community: FYBR v Minister for Home Affairs [2019] FCA 500 (‘FYBR’) and DKXY v Minister for Home Affairs [2019] FCA 495 (‘DKXY’).
FYBR is authority in support of what has been termed the ‘narrow’ approach[168] to the determination of the expectations of the Australian community. As observed by Perry J:
It follows, in line with the authorities, that cl 11.3 of Direction 65 is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the applicant’s submissions, 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. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases...[169]
[168] DKXY at [22].
[169] FYBR at [42].
A broader approach to the determination of the expectations of the Australian community was adopted by Griffiths J in DKXY. In Dalley and Minister for Home Affairs (Migration) [2019] AATA 3738 (20 September 2019) (‘Dalley’), Senior Member Tavoularis observed that this decision is authority for the proposition that:
(a) the Government’s views regarding the expectations of the Australian community must be given due regard; and
(b) so must all other circumstances which are relevant in a particular case.[170]
[170] Dalley at [122].
In FYBR v Minister for Home Affairs [2019] FCAFC 185, the Full Court of the Federal Court dismissed an appeal of Perry J’s judgment in FYBR, which was concerned with the correct construction and application of cl 11.3(1) of Direction No 65, which is, in all relevant respects the same as paragraph 13.3(1) of the Direction. In three separate judgments, (Charlesworth and Stewart JJ, Flick J dissenting) the Court did not accept that the paragraph is a ‘deeming provision’ in that it must in all circumstances require the refusal or cancellation of a visa.
Charlesworth J found at [66]-[67] that the paragraph does contain a statement of the government’s views as to the expectations of the Australian community and to this extent, it is a ‘deeming’ provision in the sense explained by Mortimer J. It is not for the decision-maker to make his or her own assessment of community expectations. However, Her Honour emphasised at [73] that the paragraph does not preclude the decision-maker from forming his or her own view as to whether the non-citizen should or should not hold a visa. The decision-maker’s assessment of whether or not the person should hold a visa may differ from the expectations of the Australian community as deemed by the government. As Her Honour stated at [76], ‘[t]he question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion’.
Stewart J emphasised at [89]-[90] that whereas it is to be expected that the Government ‘may wish to set the norms by which decisions to refuse or cancel visas are made’ it is not to be expected that the Government would seek, via this device, ‘to dictate to the statutory decision-maker the outcome’ in any particular case. This would ‘be inimical to the process of decision-making that has been established under the Migration Act and would constitute unlawful dictation to the decision-maker.’ Having regard to the text of the Direction, His Honour found at [103] that Australian community expectations ‘speak normatively’ and are ‘to be applied in every case but they are not expressed in relation to any particular case’. He emphasised at [105] that ‘[t]he specific circumstances of the … applicant are necessarily front and centre of every decision’.
Flick J at [18]-[19] did not accept the ‘unqualified conclusion’ of Mortimer J in YNQY at [76] that Australian community expectations are defined in one particular way, namely that there should be non-revocation of the mandatory visa cancellation in circumstances where a person has been convicted of serious crimes of a certain nature. He also did not accept that the Tribunal may not go beyond the ‘norm’ which the paragraph sets forth and go on to find that there may be other aspects of Australian community expectations of relevance to the facts and circumstances of a given case. His Honour at [20] preferred the approach of Griffiths J in DXKY at [31] that allows a finding that the expectations of the Australian community may not weigh against revocation of the mandatory visa cancellation. His Honour found that this approach was supported by the text of the Direction at [21]-[22]. He emphasised at [23] that in construing the Direction and other statements of government policy, it is necessary to have regard to ‘the overarching imperative that no statement of government policy can confine what would otherwise be the full ambit of any discretionary power conferred by statute’.
In Tuioti and Minister for Home Affairs (Migration) [2019] AATA 4423, Senior Member Tavoularis observed at [116] that the Full Court’s decision, together with YNQY and Afu establish that:
a)    The ‘expectations of the Australian community’ cannot be measured or determined as if it is a provable fact. It is an assessment of community values made on behalf of that community.[171]
b)    The Tribunal cannot determine for itself what such ‘expectations’ are by reference to the Applicant’s circumstances or evidence about those expectations;[172]
c)    The Government’s view in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the government thinks is the ‘expectations of the Australian community’, and the Tribunal should have due regard of that statement, if made;[173]
d)    In assessing the weight attributable to this Primary Consideration C, decision makers can have regard to the principles appearing in paragraph 6.3 of the Direction, in particular subparagraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this Primary Consideration is a matter for the decision maker.[174]
[171] Afu at [85].
[172] FYBR at [42].
[173] FYBR v Minister for Home Affairs [2019] FCAFC 185, paragraph [74] (Charlesworth J) citing Uelese v Minister for Immigration and Border Protection [2016] FCA 348.
[174] Ibid, paragraphs [77] (Charlesworth J) and [105] (Stewart J).
Having regard to the expectations of the Australian community as stated in paragraph 13.3(1) of the Direction, the evidence before the Tribunal is that the Applicant has been convicted of three serious sexual offences in Australia. The Tribunal has been guided by Principles 1 to 4 of the Direction which provide:
1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community
2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
Having regard to Principle 1, the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust, or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate not to revoke the cancellation of their visa. The Applicant has breached the trust of the Australian community as he has been convicted of three serious sexual offences.
The Applicant’s offences are serious crimes of a sexual nature against a young and vulnerable woman. As recognised by Principles 2 and 3, these offences should generally result in the cancellation of the Applicant’s visa. The nature of these offences and the harm that would be caused if repeated is very serious and, as recognised by Principle 4, any risk of similar conduct in the future is unacceptable.
The Tribunal has also been informed by Principle 6 which provides:
Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
Before its cancellation, the Applicant held a non-substantive temporary visa and therefore his circumstances fall within this expectation of the Australian community that he not be permitted to remain permanently in Australia.
In determining the expectations of the Australian community, the Tribunal has been informed by Principle 5 which provides:
Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
The Tribunal has also been informed by Principle 7 which provides:
The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Having regard to the factors in Principles 5 and 7, particularly the length of time the Applicant has been in Australia, the Australian community would not have a high degree of tolerance for the Applicant’s criminal behaviour. The Applicant arrived in Australia in June 2014 and has therefore been resident in Australia for nearly six years. However, for nearly three years of this period he has been incarcerated for the crimes for which he was convicted in August 2017.
The Applicant has run two businesses in the hospitality sector and worked as a tiler in Australia. He has therefore made a positive contribution to the Australian economy and has paid taxes. This contribution by the Applicant to the Australian economy is a factor that would raise the Australian community’s tolerance of his criminal offending.
Having regard to the factors in Principle 7, relevant to determining the expectations of the Australian community are the consequences of the non-revocation of the cancellation decision on the Applicant’s family members in Australia. The evidence before the Tribunal is that the Applicant’s wife and his stepson will be significantly impacted by his removal from Australia. They are highly dependent on him for financial and emotional support and will be devastated if he is unable to return home to live with them. The impact on his wife and stepson are factors that would likely cause the Australian community to wish to see the Applicant reunited with his family.
Having had regard to the Government’s views in relation to the expectations of the Australian community and giving them appropriate weight, and taking into account other factors relevant to the Applicant’s circumstances, the Tribunal finds that Primary Consideration C, on balance, weighs against revocation of the Mandatory Visa Cancellation Decision.
OTHER CONSIDERATIONS
While the three primary considerations carry particular weight, the Direction acknowledges at paragraph 14 that ‘other considerations’ must be taken into account by the decision-maker where relevant.
The Tribunal notes that these considerations are “other” considerations, as opposed to “secondary” considerations. As Colvin J observed in Suleiman v Minister for Immigration and Border Protection[2018] FCA 594at [23]:
... Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
International non-refoulement obligations
Paragraph 14.1 of Direction 79 requires the decision-maker to take into consideration Australia’s international non-refoulement obligations.
1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia's interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
2)The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen's visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
3)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
4)Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
5)If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them — sections 48A and 48B of the Act refer).
6)In these circumstances, decision-makers should seek an assessment of Australia's international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person's Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.
In his Personal Circumstances Form provided in support of this revocation request, the Applicant claimed that he fears for his life if he were returned to Nigeria. In his oral evidence, the Applicant stated that he is unaware of developments in Nigeria since he left there at the age of 19 years. He did not refer to or make any claims in relation to concerns he has on return to Nigeria, including for the reasons listed in paragraph 166 below. The Applicant’s representative told the Tribunal that the Applicant has not applied for a protection visa but he does have concerns for his safety.[175]
[175] Transcript, 116.
In accordance with s 501E(2) of the Act, the Applicant is able to make an application for a protection visa and the decision-maker for any such application will be required to assess his protection claims prior to the consideration of ineligibility criteria or referring the application for consideration under s 501 of the Act - Direction no. 75 – Refusal of Protection visas relying on section 36(1C) and section 36(2C)(b).[176]
[176] Exhibit R2, TB6, 261.
In circumstances in which the Applicant is able to apply for a protection visa, there is authority that the Tribunal does not need to make a determination as to whether non-refoulement obligations are owed, provided it considers the factual basis on which any such claim is made: DOB18 v Minister for Home Affairs [2019] FCAFC 63 (‘DOB18’) per Robertson J at [193]; FBW18 v Minister for Home Affairs [2019] FCA 1878 (‘FBW18’) ; Ali v Minister for Home Affairs [2019] FCA 1900. The case law is however unsettled on the issue of whether decision-makers are required to consider non-refoulement obligations in circumstances where a person is able to make an application for a protection visa: Omar v Minister for Home Affairs [2019] FCA 279 at [81]-[82]; DOB18 at [193]; FBW18 at [60]; Hernandez v Minister for Home Affairs [2020] FCA 415 at [65]-[68]. It is however clear from the existing authorities that the Tribunal is required to give active, intellectual consideration to the Applicant’s claim that he would suffer harm if returned to Nigeria: Minister for Home Affairs v Omar [2019] FCAFC 188.
The Applicant’s claims are that if he is removed to Nigeria he would be:
a)Killed or physically harmed due to tribal conflict involving his village Ile-Ife;
b)Killed or be a target for violence because he is Christian;
c)Robbed and killed because he has lived abroad and would be perceived to have money.
The Tribunal has had regard to the country information provided by the Applicant. The first article, referred to in paragraph 83 above, indicates that the relevant tribal conflict has resolved and that a peace pact was signed between the two tribes in February 2009. No further evidence has been provided to suggest that there is any ongoing conflict. The Tribunal finds there is insufficient evidence that the Applicant is at risk of being killed or physically harmed due to tribal conflict if he were removed to Nigeria and therefore he is not owed non-refoulement obligations on this basis.

In relation to the Applicant’s claims based on his Christian faith, the Tribunal has had regard to the two articles provided by the Applicant which details attacks on Christians referred to in paragraph 84 above. It also has had regard to the Department of Foreign Affairs and Trade Country information report on Nigeria (DFAT report) which indicates that Christians and Muslims living in the northeastern states of Nigeria face a moderate risk of violence from Boko Haram.[177] It reports that attacks on Christians by Boko Haram are ‘opportunistic and infrequent’ and the group is ‘highly unlikely to target individual Christians’.[178] Ife-Ife is located in the south-western region of Nigeria.[179] The DFAT report assesses Christians or Muslims residing in the southern states of Nigeria as facing an extremely low risk of violence from Boko Haram.[180] It also indicates that Christian and Muslim herdsmen continue to clash in central and Northern Nigeria.[181] The articles provided by the Applicant relate to events in the eastern and central regions of Nigeria. The Tribunal has given greater weight to the DFAT report as it relates to the Applicant’s home region.
[177] Exhibit R2, TB4, 226-259.
[178] Exhibit R2, TB4, 242.
[179] Exhibit R2, TB5, 260.
[180] Exhibit R2, TB4, 242.
[181] Exhibit R2, TB5, 238.
On the basis of the information before it, the Tribunal finds that the Applicant is at a low risk of violence or other serious harm on the grounds of his Christianity should he return to Nigeria, and that the Applicant is not owed non-refoulement obligations on this basis.
In relation to the Applicant’s concerns that he will be robbed and/or killed because he has lived overseas and would be perceived to have money, the Tribunal has had regard to the OSAC report referred to in paragraph 85 above. There is no evidence before the Tribunal that indicates that the Applicant has a high profile, nor that his parents or family members have been targeted on the basis of any perceived wealth. The Applicant’s evidence is that his parents and his brother and his family have been living in Nigeria. There is no evidence to suggest that the Applicant’s family members are or have been in any danger, despite the fact they are educated and of some means, including his father who was a politician prior to his retirement. The statements provided by the Applicant’s mother,[182] and sister[183] do not suggest the Applicant would be at any risk of harm if he were to return to Nigeria.
[182] Exhibit R1, G18, 103-104.
[183] Exhibit R1, G17, 102; G22, 109.
On the basis of the information before it, the Tribunal finds that the Applicant is at a low risk of being robbed and/or killed due to his perceived wealth if he returns to Nigeria. The Tribunal is not satisfied that the Applicant is at risk of serious harm upon return to Nigeria and therefore the Applicant is not owed non-refoulement obligations on this ground.
Accordingly, the Tribunal finds that this other consideration does not weigh in favour of revocation of the Mandatory Visa Cancellation Decision.
Strength, nature and duration of ties
Paragraph 14.2(1) of the Direction states:
Reflecting the principles at 6.3, decision-makers must have regard to:
(e)How long the non-citizen has resided in Australia, including whether the non-citizen has arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(f)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Applicant has resided in Australia for nearly six years, having arrived as an adult at the age of 25 years in June 2014. The three offences of which the Applicant has been convicted were committed in May 2016, a little less than two years after his arrival. Accordingly, having regard to the factors in sub-paragraph 14.2(1)(a)(i) of the Direction, the Tribunal has given less weight to this consideration as the Applicant offended soon after arriving in Australia.
Having regard to sub-paragraph 14.2(1)(a)(ii) of the Direction the Applicant has been a business owner and employer in the hospitality sector from early 2015 and commenced self-employment as a tiler in 2017. He spent three years contributing to the community by working as a tiler and operating two hospitality businesses and has therefore made some positive contribution to the community through employment and business ownership. The Applicant was studying a Master in Business at Newcastle University and has indicated his intention to return and complete his studies if released.[184]
[184] Exhibit R1, G8, 66.
Having regard to the factors in sub-paragraph 14.2(1)(b) of the Direction, the Applicant is married and his wife resides in Australia and is an Australian citizen. He has a genuine and supportive relationship with his wife who heavily relies on him for physical, emotional and financial support. Mrs Oke has been suffering from physiological and psychological issues following work-related spinal injuries that occurred in 2012 and 2015 and subsequent surgeries which have left her with significant disabilities which make her highly reliant on others for assistance for her daily activities and needs. She does not have family support to help her, and she relies heavily on her son to attend to her daily needs and a cleaner to maintain her household. Mrs Oke is highly dependent on the Applicant emotionally, practically and financially and she will be very adversely affected should he be returned to Nigeria. As noted above, the Applicant’s stepson, also an Australian citizen, is very emotionally attached to the Applicant and will be significantly affected if the Applicant is returned as he will need to maintain if not increase the practical and emotional support his mother requires if the Applicant is unable to do so.
The Applicant has provided letters of support from Australian community members which outline his church attendance and support for his wife and stepson.
On the basis of the evidence before it and having regard to the considerations at paragraph 14.2(1) of Direction 79, the Tribunal finds that this other consideration weighs heavily in favour of revocation of the Mandatory Visa Cancellation Decision.
Impact on Australian business interests
Paragraph 14.3(1) of the Direction states:
Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant’s work prior to his incarceration was in the hospitality and building industries. The Applicant’s representative states that his trade skills will assist in addressing the skill shortage in his regional area, however concedes the Applicant has no involvement in a major project or infrastructure program.[185] There is no evidence of a relevant ‘employment link’, and the Applicant does not claim that any Australian business interests would be affected by his removal to Nigeria. This factor does not therefore weigh in favour of revocation of the Mandatory Visa Cancellation Decision.
[185] Exhibit R1, G9, 75.
Impact on victims
Paragraph 14.4(1) of the Direction states:
Impact of a decision not to revoke 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 that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
There is no evidence before the Tribunal on the impact of the non-revocation of the visa cancellation decision on the Applicant’s victim.
Extent of impediments if removed from Australia
The Direction states in paragraph 14.5(1) that:
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 substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.
Having regard to sub-paragraphs 14.5(1)(a) and (c) of the Direction, the Applicant is currently aged 31 years. He has been diagnosed with a depressive illness and a sleep disorder and is currently taking prescribed medication. The DFAT report indicates that mental health services in Nigeria are limited, but they are available.[186] The Applicant will have access to health services, treatment and welfare services in Nigeria, although the standard and ease of access may not be of the same high standard and as widely available as those services are to him in Australia. The Applicant may also suffer disadvantage if his medical records and history are not made available to his healthcare providers in Nigeria.
[186] Exhibit R2, TB4, 234.
Having regard to sub-paragraph 14.5(1)(b), the Applicant resided in Nigeria until the age of 19 years when he departed to study in Malaysia. The Tribunal finds that he would not face any significant linguistic or cultural barriers upon his return to Nigeria. Both his parents and one of his brothers still reside in Nigeria, and the Applicant has acknowledged that he has extensive family and network connections in Nigeria.
The Applicant claims he will face financial difficulties in Nigeria due to its low employment rate and him not having relevant skills to establish himself. The evidence before the Tribunal is that the Applicant holds a Bachelor of Business Studies and has completed a number of course and programs in gaol, and he holds certificates in welding and digital media and technology. In addition, he is an experienced tiler and has run a number of businesses in Australia and Malaysia. The Applicant also has the support of his family in Nigeria. His family members are educated and established, and should be able to provide him with assistance while he finds work in Nigeria. The Applicant does not come from a rural area and would have the benefit of his family and social network for emotional and practical support.
The Tribunal finds that despite the support of his family in Nigeria, the Applicant will face practical, financial and emotional hardship upon return, due to his separation from his wife and stepson, lack of social, medical and economic support and his expressed fear of harm on return. The Applicant’s hardship will be exacerbated by the negative impacts that relocating to Nigeria would have on his wife and stepson, should they choose to move there if his visa remains cancelled and he must return to Nigeria.
The Tribunal finds that the Applicant’s familiarity and extensive family and community ties with Nigeria are such that he will not face significant impediments in re-establishing himself if he returns. However, he will suffer considerable emotional hardship as a consequence of the separation from his wife and stepson, particularly if they are unable to relocate to Nigeria to live with him.
Having considered the factors in paragraph 14.5(1) of the Direction, the Tribunal finds that this consideration weighs in favour of the revocation of the Mandatory Visa Cancellation Decision.
CONCLUSION
In summary, the Tribunal finds that Primary Consideration A weighs against revocation of the Mandatory Visa Cancellation Decision. The nature and seriousness of the Applicant’s offences, and the moderate risk of him committing future sexual or other offences, are such that the protection of the Australian community is best served by the non-revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration B weighs in favour of revocation of the Mandatory Visa Cancellation Decision. It is in the best interests of his stepson and also his nieces and nephews for the Mandatory Visa Cancellation Decision to be revoked.
Primary Consideration C weighs against revocation of the Mandatory Visa Cancellation Decision as the expectations of the Australian community are that the Applicant’s serious offending should cause him to forfeit the privilege of remaining in Australia. The duration of his residence in Australia and the impact of his removal on his immediate family members, are factors that would increase the Australian community’s tolerance for the Applicant’s offending, however not to the extent that its expectation would be that his visa be reinstated.
In regard to the relevant other considerations, only the strength, nature and duration of the Applicant’s ties to Australia and impediments on return weigh in favour of revocation of the Mandatory Visa Cancellation Decision.
The Tribunal is not satisfied that there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, and therefore the decision to refuse to revoke the Mandatory Visa Cancellation Decision is affirmed.
DECISION
The Reviewable Decision dated 17 February 2020 to refuse to revoke the Mandatory Visa Cancellation Decision is affirmed.

I certify that the preceding 193 (one hundred and ninety-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

194.

………………[sgd]………………………
Associate
Dated: 12 May 2020

Date(s) of hearing: 22 – 23 April 2020

Solicitor for the Applicant:
Mr Howard Murdoch, Parish Patience Legal & Migration Services

Solicitors for the Respondent:
Ms Mia Donald, Sparke Helmore Lawyers

Date(s) of hearing:	22 – 23 April 2020
Solicitor for the Applicant:	Mr Howard Murdoch, Parish Patience Legal & Migration Services
Solicitors for the Respondent:	Ms Mia Donald, Sparke Helmore Lawyers