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

PNZF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2384 (28 July 2022)
Division:GENERAL DIVISION
File Number: 2022/3699
Re:PNZF
APPLICANT

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

DECISION
Tribunal:Deputy President Britten-Jones
Date:28 July 2022
Place:Melbourne

The decision of the Tribunal is to set aside the decision under review and substitute a decision revoking the mandatory cancellation of the applicant’s visa made on 30 April 2015.
...........................[SGD].............................................
Deputy President Britten-Jones
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – two convictions for serious offending over a 12 year period – whether discretion to revoke mandatory cancellation should be exercised – applicant suffers from mental health issues and would face significant impediments and serious risk of harm if returned to Burundi – other considerations outweigh the primary considerations - the decision under review is set aside and substituted by a decision revoking the cancellation.
LEGISLATION
Migration Act 1958 (Cth)
CASES
CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338; [2016] FCA 1166
Minister for Immigration and Border Protection v Le (2016) 244 FCR 56; [2016] FCAFC 120
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, [2014] FCA 303
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; [2014] FCA 673
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
SECONDARY MATERIALS
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021).
REASONS FOR DECISION
Deputy President Britten-Jones
28 July 2022

This is an application for review of a decision to not revoke the mandatory cancellation of the applicant’s Child (Class AH) (Subclass 101) visa (the visa) under s 501(3A) of the Migration Act 1958 (Cth).[1]
[1] All references to legislation are to the Migration Act 1958 (Cth) unless otherwise stated.
THE DECISION TO CANCEL THE VISA AND SUBSEQUENT PROCEDURAL HISTORY
On 30 April 2015 the applicant’s visa was mandatorily cancelled (the cancellation decision) by a delegate of the Minister under s 501(3A) on character grounds due to his substantial criminal record and because he was serving a sentence of imprisonment.
On 23 June 2015, the applicant sought revocation of the cancellation decision and made representations in support of that request. On 1 May 2018, the Minister decided under s 501CA(4) not to revoke the cancellation decision. The applicant sought judicial review in the Federal Court but was unsuccessful at first instance. On appeal, the applicant was successful, and a Full Court of the Federal Court on 15 September 2021 quashed the Minister’s decision and remitted the matter.
On 5 May 2022, a delegate of the Minister (the Delegate) refused to revoke the cancellation decision pursuant to s 501CA (the non-revocation decision).
On 9 May 2022, the applicant applied to the Tribunal for review of the non-revocation decision.
LEGISLATIVE FRAMEWORK
Under s 501(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 paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); 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.
The character test referred to in s 501(3A) is outlined in s 501(6). Relevantly, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subsection (7)). For the purposes of s 501(6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[2]
[2] Migration Act 1958 (Cth) s 501(7)(c).
Where a visa has been cancelled as set out above, the Minister has a power under s 501CA(4)(b) to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked:
501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for making the original decision; and
(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a) give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.
ISSUES BEFORE THE TRIBUNAL
The applicant does not pass the character test prescribed under s 501(6)(a) as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has “a substantial criminal record” as defined under s 501(7). Therefore, the applicant cannot rely on s 501CA(4)(b)(i) to have the mandatory visa cancellation revoked.
Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision to assess if there is another reason why the cancellation decision should be revoked. This assessment is made by reference to the representations made by the applicant which I am required to read, identify, understand and evaluate.[3] If the Tribunal is satisfied that the cancellation decision should be revoked following that evaluative exercise, the Tribunal must decide to revoke the decision.[4] Deciding whether or not to be satisfied that “another reason” exists might be the product of necessary fact finding, or the product of making predictions about the future, or it might be about assessments or characterisation of an applicant’s past offending.[5]
[3] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [22] and [36].
[4] Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338, 345 at [38]; [2016] FCA 1166.
[5] Minister for immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41 at [14].
The applicant concedes that he does not pass the character test and that the only issue for the Tribunal is whether there is another reason to revoke the cancellation decision having regard to the principles and considerations in Direction 90.[6]
[6] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021).
Direction 90
The purpose of Direction 90 is to guide decision-makers in performing functions or exercising powers under s 501 and s 501CA. Under s 499(2A), the Tribunal must comply with a direction made under s 499.
The relevant principles that the Tribunal must apply to the task of deciding whether to revoke a mandatory cancellation are set out in paragraph 5.2 of Direction 90 as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
In making a decision under s 501CA(4), the following are primary considerations:
(i)protection of the Australian community from criminal or other serious conduct;
(ii)whether the conduct engaged in constituted family violence;
(iii)the best interests of minor children in Australia; and
(iv)expectations of the Australian community.
In making a decision under s 501CA(4), other considerations must also be taken into account, including (but not limited to):
(i)international non-refoulement obligations;
(ii)extent of impediments if removed;
(iii)impact on victims; and
(iv)links to the Australian community, including:
a)strength, nature and duration of ties to Australia; and
b)impact on Australian business interests.
In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.[7]
SOME BACKGROUND FACTS[8]
[7] Direction 90 at 7.
[8] These facts were not in dispute and were conveniently set out in the Respondent’s Statement of Facts Issues and Contention with some minor changes.
The applicant is a 28-year-old citizen of Burundi (born in 1993) who first arrived in Australia on 20 December 2010.
The applicant’s criminal history commenced in May 2012. From 2012 to 2015 he was convicted of the relatively minor offences of disorderly behaviour, obstructing public officers or authorised persons, fail to comply with request to give police personal details’ criminal investigation, breach of protective bail conditions and possessing stolen or unlawfully obtained property.
On 6 May 2014, the applicant was convicted (after pleading guilty) in the District Court of Western Australia of unlawful act with intent to harm (endangering life, health or safety or any person). He was sentenced to 12 months’ imprisonment for that offence.
The sentencing remarks of the District Court detail the applicant’s offending as follows:
…at approximately 12.40 in the morning on Saturday, 10 August 2013 you and another person, who was aged 17 at the time, were in Northbridge. At that time you were aged 19.
You came across the victim, Mr Murdoch, and an argument took place and in that argument the victim said something to you that was deeply offensive to you. He made reference to your size and your skin colour and you were deeply hurt and offended by it.
The argument developed into violence. There were two of you and one of him. He was a 43-year-old man. Somehow the victim came to the ground and while on the ground he was subject to a vicious and violent assault. You used your arm to grab him by the throat and you punched him while your friend kicked and punched him several times.
You kicked him to his head with your right foot. You used both feet to stomp on his head. You braced against the wall to give yourself support and jumped up and landed feet first upon his head using your full body weight and you then did the same thing on his ribs and finished by using your left foot to stomp upon his head again.
And the victim was left lying in a pool of blood as you and your friend, the co-offender, walked off. The victim suffered a broken nose, cracked ribs, a dislocated finger and has a permanent scar on his forehead. He’s also suffered financially and emotionally as he sets out in his victim impact statement.
On 5 January 2015, the applicant was released on parole however he breached the conditions of his parole on 30 January 2015 by failing to comply with his curfew and then again on 15 February 2015 by testing positive to alcohol and was returned to custody.
On 29 May 2015, the applicant was notified that his visa had been cancelled on 30 April 2015 under s 501(3A) of the Act on the basis that he had a substantial criminal record as he had been sentenced to a term of imprisonment of more than 12 months and was serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of a State (ss 501(6)(a) and 501(7)(c)).
On 23 June 2015, the applicant requested revocation of the cancellation of his visa and made representations in support of that request.
On 9 June 2017, the applicant was convicted (after pleading guilty) in the Perth Magistrates Court of, taking part in a riot, detainee possess weapon, threatening to cause harm, cause harm to Commonwealth public official and obstruct/hinder/intimidate/resist Commonwealth public official. The applicant received a head sentence of 12 months for taking part in a riot and terms of imprisonment of three months and six months for the additional charges (served concurrently).
The sentencing remarks in relation to those offences relevantly state:
The offences arose as a result of a riot in which you were involved at Christmas Island Immigration Centre. You were being detained. And during the course of that detention, which was lengthy, you had been removed to a different area.
And the circumstances of your detention in that area was that the conditions were cramped. Life was difficult. And there was a powderkeg situation arising as a consequence of that. As things turned out, you and other detainees became involved in a situation where you effectively became barricaded within a particular area. And then you and others became involved in circumstances where doors were seized so that entry could not be made into the area in which you were in. Liquid was sprayed on to the ground to make any potential entry into the compound dangerous. And there was a fire lit during the course of that incident.
And in all the circumstance, quite a dangerous circumstances arose as a consequence of yours and others’ conduct. The position was that not only was there a dangerous situation arising from was occurring, but you and others made threats to public officials, and you were involved. I’ve viewed the video of what was filmed and it is apparent that you took a fairly active part in the riot.
CONSIDERATION
Protection of the Australian community – 8.1 of Direction 90
When considering the protection of the Australian community, I have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. Entering Australia is a privilege that Australia confers on non-citizens 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. As required by paragraph 8.1(2) of Direction 90, I give consideration below to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the non-citizen’s conduct – 8.1.1 of Direction 90
It is apparent from the sentencing remarks above, that the 2013 offence was extremely violent and would be viewed very seriously by the Australian government and community. The sentencing Judge said it was fortunate that there was no brain damage or even death because of the applicant jumping on the head of a defenceless person. The violence was considered so serious that the only appropriate sentence was a term of imprisonment. The applicant was 19 years of age at the time of the offending and was drunk. He pleaded guilty at the first possible opportunity. He was sentenced to 12 months’ imprisonment with eligibility for parole after 6 months.
Despite undertaking to not consume alcohol he tested positive to alcohol on 14 February 2015 which caused his parole order to be cancelled.
The other serious offence which resulted in a further custodial sentence was the applicant’s significant involvement in the riot on Christmas Island in October 2016. This offending was very serious because it involved damage to public property and threatening behaviour to public officials who were acting in the course of their duty. The applicant took a fairly active part in the riot.
The applicant has engaged in other serious conduct whilst in detention. Although not the subject of formal convictions, the applicant accepted responsibility and expressed remorse for numerous incidents when he became abusive or threatening, caused damage to property and got into fights. Numerous incidents involved the brewing of alcohol and the applicant admitted that he drank so as to change his mood. The applicant was noted in numerous detention incident reports from May 2015 to November 2021.

Whilst the applicant’s offending is serious, I would not describe his serious criminal offending as frequent nor is there a trend of increasing seriousness. I take into account the less serious offences for which he received fines from a Magistrates Court between 2012 and 2015. Otherwise, since arriving in Australia in 2010, the applicant has committed two serious criminal offences; the first in August 2013 and the second, whilst in detention in October 2016. He received a 12-month custodial sentence for each of those offences.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 8.1.2 of Direction 90
In considering the need to protect the Australian community from harm, I have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.[9] As required by paragraph 8.1.2(2) of Direction 90, I also have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i)information and evidence on the risk of the non citizen re-offending; and
ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
[9] Direction 90 at 8.1.2(1).
In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J in Tanielu v Minister for Immigration and Border Protection.[10] Her Honour states that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.
[10] (2014) 225 FCR 424; [2014] FCA 673.
Nature of harm if further criminal or other serious conduct – 8.1.2(2)(a) of Direction 90
If the applicant were to engage in further similar criminal offending, then the nature of the harm would be very serious because of the significant injuries he caused the victim in his 2013 offending and because of his abuse and lack of respect to persons in authority whilst in detention.
Likelihood of further criminal or other serious conduct – 8.1.2(2)(b) of Direction 90
The applicant contends that there is a low to moderate risk of re-offending and relies upon a psychological assessment made by Mr Patrick Newton who provided written reports dated 16 December 2021, 11 June 2022 and 6 July 2022. Mr Newton confirmed the diagnosis of major depressive disorder which he considered was in remission.
With respect to the risk of violent recidivism, Mr Newton said in his first report:
[47] The risk of further violence on [the Applicant’s] part is likely to depend in large part upon his ability to make real his expressed desire to avail himself of the clinical assistance and broader supports that are available to him. Assuming he were indeed both willing and able to do so, the risk for further violence on his part would be reduced. That is, in a situation of demonstrated abstinence from alcohol and all illicit substances and assuming he engages with ongoing supports, [the Applicant] would be assessed to be at moderate-low risk for further violent offending.
[48] In the absence of effective treatment and support (such as from his sister and her fiancé), he would be at considerably elevated risk for further violence. The most likely scenarios for such violence would be if he were to relapse to substance use or find himself once more in unstable accommodation. Given the variety and persistence of his substance-related problems – including use not only whilst on parole but also whilst domiciled in immigration detention – and considering his permissive attitudes toward further substance use, he is considered to be at considerable risk for relapse to problematic substance use. Assuming this were to occur, the various factors extant in [the Applicant’s] case and the disinhibition of substance use would leave him at no less than a moderate risk of recidivism to violent offending.
With respect to the risk of general offending, Mr Newton said in his first report:
[54] As with his risk of violent offending, much would depend upon how [the Applicant] managed the transition to life in the community. Assuming he were able to do so without relapsing to substance misuse and/or re-affiliating with dysfunctional peer groups, the risk of general recidivism would be relatively low. In the context of further substance use or involvement with negative groups, the risk of recidivism to general offending would be elevated significantly.
[55] The most important rehabilitative factors extant in [the Applicant’s] case are:
·Continued treatment of his substance abuse and maintenance of sustained abstinence.
·Addressing his anxiety and (most likely) dealing with any trauma.
·Improvement in his interpersonal and general communication skills.
·Assistance with re-integration into the community after any release.
[56] Attention to these matters in an ongoing manner would not only improve [the Applicant’s] functioning but also reduce his psychological distress and diminish the likelihood of further recidivism on his part. Such intervention would be amenable to relatively straightforward management within a community context.
In his report dated 11 June 2022, Mr Newton noted the applicant had attended seven alcohol and drug counselling sessions in April and May 2022 and that he was able to demonstrate an increased insight into issues associated with negative peer influence and the importance of obtaining ongoing positive social support. Mr Newton considered this to be an important first step towards relapse-prevention planning but that further development was required.
In his report dated 6 July 2022, Mr Newton confirmed that his previously expressed opinions remained accurate but he made the following comments which reflect positively on the applicant:
[6] It is positive that [the Applicant] intends to live with his sister and brother-in-law. Their home reportedly offers a stable living environment for him, with ready access to the treatment services he requires and family support during any transitions to life in the community.
[7] [The Applicant]’s intention to pursue work in painting would be likely to provide better prospects for him to make the transition to life in the community than pursuing work as a ‘FIFO worker’ within the mining industry. Specifically, work in painting could be undertaken whilst maintaining residence at his sister and brother-in-law’s home and whilst maintaining the connections to treatment and other supports that are required. As such it would provide an environment which was more conducive to his rehabilitation and which had less risk of recidivism or other problems.
[8] It is positive that [the Applicant] has been able to access appropriate medical care and to have his concerns about the side-effects of his medication addressed. In my opinion, continued compliance with antidepressant medication is manifestly required if he is to maintain emotional stability. While such medical treatment should clearly be supplemented with counselling to the extent possible, it provides the best means of avoiding a relapse to severe depressive symptoms in [the Applicant]’s case.
I heard evidence from the applicant’s sister and her partner who both spoke favourably about the applicant and said that they would support him and assist him if he were released. They have a room for him in their house and will help him get a job. They understand that the applicant’s problems have stemmed to a large extent from alcohol abuse and they will not have alcohol in the house.
I also heard evidence from Debi Bodden who is a counsellor at OSSTT (Overseas Services to Survivors of Torture and Trauma) and has worked for 10 years as a specialist trauma counsellor for individuals from refugee backgrounds. Ms Bodden has been providing very regular counselling services to the applicant since June 2021. In her report dated 21 November 2021 she confirmed the applicant’s evidence about his traumatic history both in Burundi and when he first arrived in Australia and was kicked out of his house by his mother which is not in dispute:
Background Information:
[The Applicant] was born in Burundi and came to Australia in 2011 on a child visa when he was aged 17. He was sponsored by his mother, who had fled Burundi approximately 20 years earlier when he was approximately three years old. He describes himself as “mixed race,” with his parents from warring tribes (Hutu father and Tutsi mother). Shortly after his birth, genocidal ethnic violence and mass killings occurred between the Hutu and Tutsi tribes in Burundi; this genocide marked the start of the civil war that lasted over a decade. He does not think his parents were ever married and believes his birth may have been the result of his mother’s rape. After his mother fled Burundi, [the Applicant] and his two sisters lived with various family members, moving between his mother’s and father’s families. He described being poorly treated by both families because he was of “mixed race.” He did not feel safe with either family. [The Applicant]’s older sister died under suspicious circumstances in Burundi when he was approximately 7 years old. His younger sister came to Australia with him to live with their mother. Since he left Burundi, he has not had contact with his father and has no close relationships with any other relatives remaining there. He has described his life in Burundi as “frightening, confusing and complicated.”
[The Applicant] stated that he has a complicated and difficult relationship with his mother. He feels that she does not care for him, but he describes himself as still having compassion for her and is occasionally able to have a positive conversation with her on the phone. He believes that his mother experienced significant trauma affecting her ability to form a relationship with him, stating, “She lived through a genocide, which is why she could not love me.” [The Applicant] explained that when he first arrived in Perth Australia, his mother had forced him to get a DNA test to prove that he was her child and then a few months later, she kicked him out of the house. He then spent several nights living on the streets before finding alternate accommodation; “I remember being cold, it was so cold in the streets.” He has had infrequent/irregular contact with his mother since that time.
Ms Bodden then confirmed more positive aspects of the applicant’s life in Australia which are not in dispute:
[The Applicant] has a strong relationship with his sister and he speaks with her regularly by phone. She and her fiancé reside in Perth and they have committed to supporting him if he is released.
Prior to the incident that led to [the Applicant]’s imprisonment and subsequent immigration detention, he was employed at Hungry Jacks followed by a job with ACUG (Australian Container Unloading Group) before commencing a painting apprenticeship.
Through her regular counselling sessions with the applicant, Ms Bodden has established a very good understanding of him and the issues he faces and his plans for the future. I accept what she says in her first report as follows.
[The Applicant] has described thinking about the incident that took him to prison. He has stated, “I don’t want to be a violent person, I feel bad, all of this was unnecessary, I regret all of this. I just want to live my life, work, maybe have a family.” [The Applicant] reported that he was currently engaging in a drug and alcohol course, an anger management course and a decision-making skills course. He has clearly stated, “I don’t want fighting and alcohol to be part of my life.” He explained that prior to his incarceration he had been motivated to complete his apprenticeship and has expressed a sense of grief and loss for the years of life he has lost in prison and immigration detention.
Assessment:
[The Applicant] has described a history of trauma related to his experiences during and following the Burundi genocide and civil war. At the time of writing, the full extent of this trauma is not known by the counsellor. [The Applicant] is reluctant to talk about his past in great detail, and nor is he in an environment conducive to exploring or recovering from the impact of trauma. However, based on the information he has provided, and also based on what is known about the history of the inter-ethnic violence that occurred in Burundi during the 1990s and early 2000s, it is likely that as a child and adolescent, he would have been both a target and a witness to extreme violence and abuse in the context of civil and political upheaval and unsafe and deteriorating living conditions. It is well documented that children who have grown up surrounded by conflict and violence are at higher risk of poor mental health outcomes. It is reasonable to conclude that [the Applicant]’s mental health has been affected by the environment that he grew up in and that the impact of this will be ongoing until he is provided with an adequate opportunity for recovery. Establishing physical and psychological safety are essential components for recovery from trauma. Since his arrival in Australia [the Applicant] has only experienced a brief period when he was able to live in a nurturing and supportive environment. Experiencing homelessness and a lack of parental guidance at so young an age and so soon within his resettlement journey would have impeded any potential recovery processes and compelled him to rely on maladaptive coping mechanisms.
Treatment Recommendations
[The Applicant] has described a close relationship with his sister and if he is released it is planned that he will be supported by her. He hopes to complete his painting apprenticeship, find employment and create a future for himself. [The Applicant] has always demonstrated a willingness to engage in the therapeutic process and has actively participated in counselling sessions. He has demonstrated insight into his past behaviour and described a desire to move forward in his life in a positive way. He has demonstrated his resilience in Australia through learning a new language, finding employment without parental support, commencing an apprenticeship, and taking courses while in detention. He states that he does not want to be defined by his past trauma and prefers to move forward with his life. In a safe and supportive environment this resilience will enable him to move in a positive direction. As part of his recovery it is strongly recommended that he continue with ongoing specialist trauma counselling to support him to build the sense of safety he has rarely experienced, enable him to develop trusting relationships, and improve his ability to make sound decisions and manage overwhelming circumstances as they arise.
Summary
[The Applicant]’s post arrival experiences of homelessness, imprisonment and detention will have compounded pre-arrival trauma and made it all but impossible for him to recover from his past experiences. However, in spite of the significant difficulties he has faced, [the Applicant] has demonstrated insight, remorse and considerable resilience. While [the Applicant] remains in held detention and in a state of prolonged uncertainty, his ability to recover from past trauma and build towards a positive future will be compromised. It is the opinion of the treating counsellor that if [the Applicant] is able to live in a safe and supportive environment he will successfully recover, complete his apprenticeship and become a fully contributing member of Australian society.
Ms Bodden provided an updated report on 31 May 2022 in which she deals with treatment recommendations as follows:
Treatment Recommendations
[The Applicant] continues to demonstrate a willingness to engage in the therapeutic process and actively participates in counselling sessions with OSSTT. As stated in the previous report, it is strongly recommended that he continue with ongoing specialist trauma counselling while he remains in the IDC and once he is released into the community. This will support him in building the sense of safety he has rarely experienced, enable him to develop trusting relationships, and improve his ability to make sound decisions and manage overwhelming circumstances as they arise.
[The Applicant] has also commenced drug and alcohol counselling with Palmerston Association and has indicated that he wants to continue accessing this service once in the community. It is strongly recommended that he be supported to do so.
I was impressed with the written reports and the oral evidence of Ms Bodden. She has conducted about 35 sessions of between 30 and 60 minutes duration with the applicant. She is confident that he will continue to engage with the recommended care providers and stay off alcohol when released. I accept the evidence from Ms Bodden.
Since February 2021, the applicant has also received support from the Asylum Seeker Resource Centre who provided a positive report dated 8 December 2021. There is a further positive letter from Anglicare WA which provides information about the supports available to the applicant if he were released into the community in Perth.
The applicant gave oral evidence by video and I formed a favourable impression of him as a witness. He was thoroughly cross examined with respect to the numerous incident reports during detention and he made appropriate concessions about his conduct, denied others and said that he could not recall some of the specific incidents. He did accept more generally that his behaviour had at times been poor and he explained how he became frustrated whilst in detention. He said he was sorry. He said that that he drank homebrew in detention so as to change his mood. It is apparent that alcohol abuse has been a factor in his criminal behaviour. He said that his grandmother was an alcoholic and that he started drinking from around 7 or 8 years old.
The applicant made numerous expressions of remorse which I consider were genuine. He said that he last drank alcohol in November 2021 and that he would not drink if he were released because he did not want to re-offend. He explained that he wanted to continue the counselling sessions and to find work if released. He clearly has a good relationship with his sister and soon to be brother-in-law and I would expect that relationship to have a very positive impact on him in the future.
The applicant also has a good relationship with, and would expect to receive support from, his English teacher who has provided a very positive statement in his favour. She is currently providing financial and emotional support. She wants to continue providing that support and to help him transition into the community if he is released.
The applicant has been incarcerated in prison or detention since May 2014 and he has clearly struggled with the environment. Ms Bodden explained how his detention has compounded his childhood trauma and made it difficult for him to recover from his past experiences.
The respondent submitted that the applicant presents at least a moderate risk of re-offending and that the risk is unacceptable because he is not fully rehabilitated and has not addressed his alcohol abuse and his hypersensitivity to his size and race, all of which were factors that fuelled his previous offending.
The current indications for the applicant if taken out of detention and given a chance in the community are very positive. He has abstained from alcohol since November 2021 and he understands the negative impact of drinking. In November and December 2021, the applicant successfully completed rehabilitative courses involving drug and alcohol abuse, anger management and understanding addictions. In April and May 2022, the applicant completed 7 one-hour counselling sessions with a community alcohol and drug service who provided a positive report dated 25 May 2022 which confirms his engagement and his intention to continue with the service. He has indicated a willingness to maintain that engagement. He has the support of his sister and her fiancé and his former English teacher together with organisations such as the OSSTT (and its sister organisation in Perth) and Anglicare. He is an intelligent man who has demonstrated in the past a willingness to learn and to work. He performed well at boarding school in Burundi and is able to speak five languages.

Mr Newton’s opinion was that if the applicant engaged with the supports that were available to him upon release and avoided any relapses then his likelihood of re-offending was low to moderate. Ms Bodden said that the applicant had demonstrated insight, remorse and resilience and she expressed an opinion that if able to live in a supportive and safe environment, then he would fully recover, find employment and become a fully contributing member of Australian society. I give significant weight to the evidence from Mr Newton and Ms Bodden who I considered to be authoritative and independent.
I consider it likely that the applicant, once released from detention, will achieve his desired objectives in relation to ongoing engagement with rehabilitative services, abstaining from alcohol and reintegrating positively with his sister and the community. I consider that the lengthy time that the applicant has spent incarcerated in prison and detention will act as a deterrent against further offending. The applicant has learnt his lesson. It follows that the likelihood of further offending is low to moderate. There will always be a risk that the applicant will offend again but, given the limited nature of his serious criminal offending, I consider that the risk is not unacceptable.
Conclusion as to protection of the Australian community – 8.1 of Direction 90
The Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens.[11] The applicant has committed serious crimes but they were not frequent. The nature of the harm of any similar re-offending is serious, but the evidence indicates that the risk of reoffending is low to moderate. The applicant has expressed what I consider to be a genuine desire to continue to engage with rehabilitative services that have been arranged and in addition to these professional supports he has the definite support from his sister and partner. In these circumstances, I am confident that the applicant will engage with the available supports and that he will likely not re-offend. The likelihood of significant harm to the Australian community if the applicant were released is relatively low and therefore the protection of the Australian community is a factor that weighs against revoking the cancellation decision, but I do not give it significant weight.
[11] Direction 90 at 8.1(1).
Family Violence – 8.2 of Direction 90
The offending did not involve family violence. This consideration is neutral.
Best interests of minor children – 8.3 of Direction 90
There was no evidence of any minor children affected by the non-revocation decision. This consideration is neutral.
Expectations of the Australian community – 8.4 of Direction 90
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to remain in Australia.[12] However, I do not consider the circumstances of the applicant present an unacceptable risk because of my findings with respect to the protection of the Australian community set out above.
[12] Direction 90 at 8.4(1).
Paragraph 8.4(4) of Direction 90 provides that, as a decision-maker, I must consider the expectations of the Australian community as a whole and proceed on the basis of the Government’s views expressed therein, without independently assessing the community’s expectations in the particular case. The character concerns relating to the applicant and his past criminal behaviour mean that the expectations of the Australian community is a factor weighing in favour of non-revocation but this is not a decisive factor in terms of whether to revoke the cancellation decision because of the particular circumstances of the applicant set out in paragraphs 53 to 56 above.
My conclusion as to the expectations of the Australian community is that it is a factor that weighs against revoking the cancellation decision, but I do not give it significant weight.
Other Considerations
In deciding whether there is “another reason” to revoke the cancellation of the applicant’s visa, I must also take into account the other considerations listed in Direction 90, but these are not exhaustive.[13] I must consider and understand the representations received from the applicant.[14] I must also consider the consequences that would flow from not revoking the cancellation decision.[15]
[13] SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303.
[14] See above at [11].
[15] Minister for Immigration and Border Protection v Le (2016) 244 FCR 56, 70-71 at [61]; [2016] FCAFC 244
International non-refoulement obligations – 9.1 of Direction 90
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.[16]
[16] Direction 90 at 9.1(1).
The applicant has articulated the prospect of Australia breaching its non-refoulement and other human rights based treaty obligations as reasons for revoking the cancellation decision. This is in addition to, and distinct from, his underlying claimed fear of harm if returned to Burundi.
I will consider separately the risk of harm if returned to Burundi, but I note that the risks of harm that the applicant will face if removed are also relevant to non-refoulement obligations and the extent of impediments if removed.
Further, the applicant submits that it cannot be reasonable and rational to defer consideration of Australia’s international non-refoulement obligations.
The respondent submits that the Tribunal is entitled to defer consideration of non-refoulement obligations because it is open to the applicant to apply for a protection visa.
The recent decision of the High Court in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 addressed this very issue:
[21] It is in that context that the specific issue in this case is to be addressed — whether a decision-maker considering revocation under s 501CA(4) is required to determine whether non-refoulement obligations are owed to the former visa holder where the person makes representations which raise a potential breach of those obligations but the person remains free to apply for a protection visa. As has been stated, the dispute between the parties was not if, but how, such representations should be considered by the decision-maker.
Decision-makers’ approach to representations
[22] Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision-maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason“ why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is “another reason” for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is “another reason” for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.
… [24] Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. …
Decision-makers’ approach to non-refoulement
… [29] Where the representations do include, or the circumstances do suggest, a non-refoulement claim by reference to unenacted international non-refoulement obligations, that claim may be considered by the decision-maker under s 501CA(4). But those obligations cannot be, and are not, mandatory relevant considerations under s 501CA(4) attracting judicial review for jurisdictional error — they are not part of Australia’s domestic law.
[30] Where the representations do include, or the circumstances do suggest, a claim of non-refoulement under domestic law, again the claim may be considered by the decision-maker under s 501CA(4), but one available outcome for the decision-maker is to defer assessment of whether the former visa holder is owed those non-refoulement obligations on the basis that it is open to the former visa holder to apply for a protection visa.
(footnotes removed)
It follows that I am required to read, identify, understand and evaluate the representations made by the applicant. Those representations included a claim of non-refoulement under domestic law. The High Court said that such a claim may be considered by the decision-maker, but that one available outcome is to defer assessment of whether the applicant is owed those non-refoulement obligations.[17] I intend to defer assessment because it is open to the applicant to apply for a protection visa. That does not mean that I ignore the representations made by the applicant. Plaintiff M1/2021 makes it clear that a decision-maker must not do that,[18] but ‘one available outcome’ is the deferral of the substantive assessment of such a claim.[19]
[17] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [30].
[18] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [23].
[19] CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124 at [105].
The comments in Plaintiff M1/2021 were made in the context of Direction 65 which has been revoked but they still apply to the decision I must make under s 501CA(4). The current direction is Direction 90 which provides:
(4) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa under section 501 of the Act, in a request to revoke under section 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).
(5) International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.
(6) It may not be possible at the section 501/section 501CA stage to consider non refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non refoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.
(7) Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the non citizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.
In this case the applicant has clearly raised claims which may give rise to international non-refoulement obligations. Paragraph 9.1(6) of Direction 90 provides that it may not be possible at the section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. That sub-paragraph applies in this case and allows the decision-maker to defer substantial assessment of non-refoulement issues. Sub-paragraph (6) goes on to say that a decision-maker, in making a decision under s 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen’s favour that claimed harm will occur and make a decision on that basis. This approach to the task of a decision-maker is apposite to the case before me.
Applicant Representations of Risk of Harm
The applicant made representations concerning risk of harm in Burundi as part of his request for revocation of the cancellation decision[20] as follows:
I have no family in Africa, all of my family are here including my mother, stepfather and sister.
There is a lot of unrest in Africa especially between the Tutsi and Hutu people which my mother and father belong to each.
If I was deported I wouldn’t have anywhere to go & fear I would be killed.
[20] Exhibit 1, G Documents, G15, page 268 request for revocation dated 5 June 2015.
More recently, the applicant has made representations through the Asylum Seeker Resource Centre[21] that if returned to Burundi he would face serious harm on account of his mixed ethnicity, his status as a returnee from the West with no support network and his status as a person with a mental illness. The applicant asserted a risk of other harm on account of the humanitarian crisis and genocide and arising from a lack of physical and psychological medical care in Burundi.
[21] Exhibit 1, G Documents, G30, pages 372 to 391 letter from ASRC dated 16 December 2021.
The High Court has provided the following guidance for this situation:[22]
[37] … [The Tribunal is] not required to determine whether the plaintiff was owed non-refoulement obligations (by conducting an assessment of the merits of the plaintiff's claim) in the same manner, or to the same extent, as would be called for by a direct application of the international instruments to which Australia is a party or by reference to the domestic implementation of those obligations.
…
[39] Where the cancelled visa is not a protection visa and a decision-maker defers assessment of whether non-refoulement obligations are owed to permit a former visa holder to avail themselves of the protection visa procedures provided for in the Migration Act, it nevertheless may be necessary for the decision-maker to take account of the alleged facts underpinning that claim where those facts are relied upon by a former visa holder in support of there being “another reason“ why the Cancellation Decision should be revoked.
[22] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [37] and [39].
CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (CKT20) makes it clear that I am required to consider facts underpinning the claim such as the applicant’s mixed ethnicity. In CKT20 the Full Court of the Federal Court rejected the Minister’s submission that there was no obligation to consider a claim based on ethnicity.[23]
[23] CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124 at [97] to [106].
In 2016 the applicant wrote[24] that he has bad memories of Burundi and that he was concerned that another genocide was going to start because his grandfather had recently been killed in the conflict.
[24] Exhibit 1, G Documents, G26, page 302.
In the applicant’s 2021 statement he said that he feared returning to Burundi because he would be hunted and killed due to his mixed ethnicity. He remains scared of his relatives who had beaten and abused him as a child. He has fears that as a western returnee he will be perceived as having money and therefore will be targeted and at risk of harm. He has no family or other support network in Burundi and he belongs nowhere because he is not accepted by either the Tutsi or the Hutu tribes. He said that he will not be able to get a job or find housing.
The applicant gave oral evidence that confirmed his written statements about his traumatic youth and the problems arising from his mixed ethnicity. The applicant said that his older sister was poisoned by members of the Tutsi tribe because she was of mixed ethnicity. He was beaten by his maternal grandmother and uncles because they considered he was like his father, a Tutsi. He was rejected by his father’s family who considered he was a Hutu. He said that he does not look like a Hutu or a Tutsi and that he feels he belongs nowhere. He believes that he would still be a target and at risk of serious harm if he returns to Burundi.
The respondent contends that the applicant’s fear of harm including death as a result of his mixed ethnicity cannot be made out and that the appropriate finding is that he would face practical and emotional hardship if returned to Burundi. I have no doubt that the applicant is telling the truth about his childhood and the violence he was subjected to due to his mixed ethnicity. It is difficult to assess the likelihood that he will face harm (or the extent of harm) if returned because none of the witnesses had been to Burundi recently. However, there is recent country information[25] that supports the applicant’s claims of violence based upon ethnicity. On the current evidence it is difficult to make a positive finding that the claimed harm will occur, but I consider that this is an appropriate case to assume in the applicant’s favour that the claimed harm will occur pursuant to sub-paragraph 9.1(6) in Direction 90. On that basis I accept the evidence of the applicant that he would face serious harm arising from his mixed ethnicity if returned to Burundi.
[25] Exhibit 8, Applicant’s Tender Bundle, Office of the United Nations High Commissioner for Human Rights, ‘Report of the Commissioner of Inquiry on Burundi’, 16 September 2021; United Nations Security Council, ‘Implementation of the Peace, Security and Cooperation Framework for the Democratic Republic of the Congo and the Region’, 30 March 2022 (Applicant’s reply dated 6 July 2022 at [15]).
As I have previously indicated, I make no finding as to non-refoulement obligations because it is open to the applicant to apply for a protection visa.
I will, however, make a positive finding based upon likely harm arising because of the applicant’s mental health issues. He has been diagnosed with a depressive disorder and depressed mood and he is taking anti-depressant medication. While Mr Newton said that his condition was currently in remission, it is likely to be triggered if he is sent back to the environment where he suffered his childhood trauma. In that circumstance, Mr Newton opined that he would require relatively intense mental health care and support. It is likely on the country information provided that he will not receive the treatment that he needs in Burundi. It is also likely that he would be shunned by society in Burundi and would face employment discrimination. This would place the applicant in a very vulnerable position which could lead to a relapse into substance abuse and criminal behaviour with disastrous consequences given the terrible prison conditions in Burundi.
Further harm would be likely on his return because of the humanitarian crisis in Burundi where the majority of returnees are in serious humanitarian need.
In summary, I accept the applicant’s concerns as expressed in his representations that he will likely face serious harm if returned to Burundi. This is a factor that weighs heavily in favour of revocation of the cancellation decision.
Consequences of non-revocation
The applicant contends that if the cancellation decision is not revoked that he will either be returned to Burundi or detained indefinitely. In either event, the consequence for the applicant would be devastating. If a protection visa application were lodged, then it is asserted that the applicant will be trapped in detention in the intervening period.

The respondent accepts that if no protection visa application is made then the immediate legal consequence of a non-revocation decision may result in removal.[26] However, the decision would not necessarily result in removal because the applicant could apply for a protection visa. If a ‘protection finding’ is made on any application for a protection visa, then the applicant would not be liable to be removed immediately.
[26] Respondent’s Statement of Facts, Issues and Contentions at [62].
I note that if the visa cancellation is not revoked, the applicant may remain in detention whilst any protection visa application is considered or while the Minister considers the possibility of re-settlement or the exercise of a personal discretion in favour of the applicant. There is no evidence before me suggesting that re-settlement or the exercise of a personal discretion would be considered. Given the mental condition of the applicant and that he has been struggling in detention, this would have severe consequences adverse to the applicant. In WKMZ, Kenny and Mortimer JJ considered the impact of further detention which is apposite to the applicant:[27]
… The period of a person’s loss of liberty may be very lengthy, and have no chronologically fixed endpoint, being dependent on the completion of various administrative and executive steps and inquiries. The person concerned will have no accurate conception of when her or his detention might end.
[27] WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 at [132].
The prospect of further detention is a factor that weighs in favour of revoking the cancellation decision.
The respondent accepts that the applicant may face “some difficulties” if returned to Burundi which may weigh in favour of revocation.[28] I have found that those “difficulties” would have a devastating consequence in terms of serious harm for the applicant and hence should be given significant weight in favour of revocation of the cancellation decision.
[28] Respondent’s Statement of Facts, Issues and Contentions at [68].
Extent of Impediments if Removed – 9.2 of Direction 90
Direction 90 requires that I consider the extent of any impediments that the applicant may face if removed from Australia to his home country of Burundi in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the applicant’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to him in that country.
The applicant would face significant impediments if returned to Burundi and he would have great difficulty establishing himself and maintaining basic living standards. This arises primarily because of the applicant’s mental health issues, his mixed ethnicity and because of the lack of any network of family or friends in Burundi to support him. The matters referred to above in relation to risk of harm are also relevant to extent of impediments and I will not repeat them here. The impact of the humanitarian crisis and ongoing instability between the Tutsi and Hutu tribes in Burundi would have a significant and particular impact on the applicant because of his poor mental health, his mixed ethnicity, his lack of family or other support and because he has not been in the country for so long. There would be substantial cultural and language barriers which would create significant impediments on the applicant establishing himself and maintaining a basic living standard in Burundi. He would not receive the medical support needed for his depression and other mental health issues which would likely worsen if he were to be returned.
This is factor that weighs heavily in favour of revocation of the cancellation decision.
Impact on victims – 9.3 of Direction 90
There was no evidence of impact on victims within the meaning of the Direction. This factor is neutral.
Links to the Australian community – 9.4 of Direction 90
If the applicant is returned to Burundi then it will impact negatively on his sister and her fiancé. His sister gave evidence about how she wants her brother to be released and to come and live with her. They are very close and it would be devastating for her if the applicant was not released into the community.
The applicant’s mother also lives in Australia but there was no evidence of any impact on her if the applicant was returned to Burundi. The applicant explained that she does not want anything to do with him, but he is hopeful that if he was released into the community that he could repair their relationship.
Despite the ongoing difficulties the applicant faced when he first came to Australia, he did contribute positively to the community by attending school and working from 2010 to 2014. He worked part time at Hungry Jacks and full-time unloading containers for a shipping company. In 2013, he completed a short course and obtained a qualification to work in construction. He then commenced his painting apprenticeship which he wishes to complete if released. He received positive feedback from the Project Manager of the business where he commenced the apprenticeship, who advised he was “impressed with his efforts. His attendance was faultless and his punctuality was excellent.”
The applicant also developed a positive relationship with his teacher at the Cyril Jackson Intensive English Centre in Perth. She has provided a very positive statement in favour of the applicant who she first met in 2011. Soon after starting classes with her, he became homeless after being kicked out of home by his mother. She helped him with accommodation. She was impressed with his demeanour and that he obeyed all the school rules. In more recent times she has started communicating with him again and providing him with some financial and emotional support. She wants to continue providing that support and to help him transition into the community if he is released.
The applicant has lived in Australia for about 12 years since he was 17 years old. He is now 28 years old and has therefore spent all his adult life in Australia. Having arrived in 2010, he did not commit any serious criminal offences until August 2013 during which period he was mostly contributing positively to the Australian community by educating himself and working. I say mostly because during that period he did receive fines for relatively minor offences such as disorderly behaviour in public and obstructing public officers.
There would be no impact on any Australian businesses if the applicant is not allowed to stay in Australia.
In conclusion with respect to his links to the Australian community, I consider this to be a factor that weighs very heavily in favour of revocation of the cancellation decision.
Conclusion as to whether to exercise the discretion to revoke the cancellation of the visa
I have considered the specific circumstances relating to the applicant as part of my consideration. I am now required to carry out the evaluative exercise of weighing up the factors to determine whether to exercise the discretion to revoke the cancellation decision.
The primary considerations of the protection and expectations of the Australian community weigh in favour of not revoking the cancellation decision but not decisively. The nature and seriousness of the applicant’s offending is not such that any risk of further offending is unacceptable. However, a non-citizen who engages in criminal conduct should expect to forfeit the privilege of staying in Australia. In this case, the applicant was convicted of two serious criminal offences in the twelve-year period since he arrived. The first offence was very serious and involved the infliction of serious injuries to a person in the street in response to something said that was deeply offensive to the applicant referring to his size and skin colour. The violent response was completely disproportionate and not justified. The victim was hospitalised and suffered both physically and emotionally as a result of the attack. The second offence of participating in the riot on Christmas Island was also very serious and demonstrated a lack of respect for authority.
I take into account that alcohol (for the first offence) and a lack of anger management (for both offences) were causative factors and that the applicant has taken significant steps to address these issues by recently abstaining from alcohol and by completing drug and alcohol courses and an anger management course. The applicant’s traumatic youth in Burundi when he was beaten and surrounded by violence together with his mother’s abandonment of him when he first arrived in Australia were also causative factors in his offending. He has taken steps to address that trauma by engaging positively with Ms Bodden from OSSTT. Mr Newton, an experienced psychologist, spoke of the applicant’s “increased insight into issues associated with negative peer influence and the importance of obtaining positive social support” and “his willingness to participate in drug and alcohol treatment … which … will tend to reduce the risk of both violent and non-violent (general) offending”. Mr Newton concluded that with appropriate supports the applicant would have a low to moderate risk of violent re-offending. I have concluded that the necessary professional and social supports are available and that the applicant will engage with them so as to diminish the likelihood of further offending if he is released.
In all of these circumstances I place less weight on the protection and expectations of the Australian community. I am aware that primary considerations should generally be given greater weight than other considerations, but this is a case where the other considerations outweigh the primary considerations.
Those other considerations include the extent of impediments if removed, the links to the Australian community, the risk of harm if removed and the consequences of non-revocation. They should be given significant weight for the following reasons.
If the applicant is removed to Burundi, the ongoing civil unrest and violence between the Tutsi and Hutu tribes would place the applicant at risk of harm. He would face particular harm because of his mixed ethnicity and his mental health issues. He would have no family or other social supports to assist him with these particular problems or to assist him more generally to re-integrate into one of the poorest countries in the world where he has not been for 12 years.
The applicant has established significant links to the Australian community through his education, work and family. His positive contribution to the Australian community over a lengthy period prior to his incarceration is a strong indicator that he will contribute positively in the future once he escapes the debilitating impact of detention. He has commenced and will continue the process of rehabilitation by addressing his trauma, substance abuse and anger management. He has in place numerous protective factors that reduce his risk of relapse and reoffending, the most important of which is the support he will receive from his sister and her fiancé.
DECISION
The decision of the Tribunal is to set aside the non-revocation decision and to substitute a decision that the cancellation decision is revoked.

I certify that the preceding 107 (one hundred and seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones

...........................[SGD].............................................
Associate
Dated: 28 July 2022

Date(s) of hearing: 12 and 13 July 2022

Counsel for the Applicant: G. Costello QC

Solicitors for the Applicant: Asylum Seeker Resource Centre

Advocate for the Respondent: A. Burgess

Solicitors for the Respondent: Sparke Helmore

[2022] AATA 2384

28 July 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Remedies

Statutory Construction

Date(s) of hearing:	12 and 13 July 2022
Counsel for the Applicant:	G. Costello QC
Solicitors for the Applicant:	Asylum Seeker Resource Centre
Advocate for the Respondent:	A. Burgess
Solicitors for the Respondent:	Sparke Helmore