QKJY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 2689

QKJY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2689 (7 August 2020)
Division:GENERAL DIVISION
File Number: 2016/4209
Re: QKJY
APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:7 August 2020
Place:Brisbane

The decision under review is affirmed.
............................[SGD]..........................................
Senior Member Theodore Tavoularis
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class XB Subclass 202 Global Special Humanitarian Visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Omar [2019] FCAFC 188
Minister for Home Affairs v Buadromo [2018] FCAFC 151
NSWQ and Minister for Immigration and Border Protection [2016] AATA 373
Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Contents
Introduction and background
The nature of the offending prior to 17 September 2009
The nature of the offending post 17 September 2009
Issues
Does the Applicant Pass the Character Test?
Is there Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
Primary Consideration A – Protection of the Australian Community
Application of Paragraph 13.1.1(1) of the Direction
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The likelihood of the non-citizen engaging in further criminal or other serious conduct
Conclusion: Primary Consideration A
Primary Consideration B: The best interests of minor children in Australia
The Applicant’s written evidence
Application of Factors in Paragraph 13.2(4) of the Direction
Conclusion: Primary Consideration B
Primary Consideration C: The Expectations of the Australian Community
The relevant paragraphs in the Direction
Factual circumstances relevant to this Primary Consideration C
The Evolution of the Australian Community’s “Expectations”
Analysis – Allocation of Weight to this Primary Consideration C
Conclusion: Primary Consideration C
Other Considerations
(a) International non-refoulement obligations
Assessment of the Applicant’s claims
The Applicant’s written position regarding international non-refoulement obligations
The Applicant’s oral evidence at the instant hearing regarding international non-refoulement obligations
The evidence of the other witnesses regarding international non-refoulement obligations
(b) Strength, nature and duration of ties
(c) Impact on Australian business interests
(d) Impact on victims
(e) Extent of impediments if removed
Findings: Other Considerations
Conclusion
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Decision
REASONS FOR DECISION
Senior Member Theodore Tavoularis
7 August 2020
INTRODUCTION AND BACKGROUND

QKJY (“the Applicant”) is a 38 year old citizen of Sudan.[1] Movement records indicate that the Applicant first arrived in Australia on 22 July 2004 and has not left Australia since that time. He arrived here as a UNHCR mandated refugee. He has remained in Australia on a Class XB Subclass 202 Global Special Humanitarian Visa (“the visa”).
[1] The Applicant’s name has been suppressed pursuant to a confidentiality order made under s 35(3) of the Administrative Appeals Tribunal Act 1975 (Cth). See Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), page 2, paragraph [5].
The Applicant has an offending history in Australia that runs (in terms of sentencing episodes) from 6 March 2006 to 5 May 2014. His offending commenced less than two years after his arrival in this country and has seen him dealt with for the commission of some 43 individual offences across some 26 separate sentencing episodes.
His extensive criminal history primarily revolves around themes of unregulated consumption of alcohol and contemporaneous operation of a motor vehicle. Interspersed with this primary realm of offending, one can find offences against the property and personal rights of others, including physical interference with a law enforcement officer in the course of their regular duties.
In my previous decision relating to this matter,[2] I predicated my summary of the Applicant’s offending on the basis of (1) offences he committed prior to the warning he received from the then Department for Immigration and Citizenship on 17 September 2009 and (2) offences he committed after that date. Out of an abundance of caution, I will re-summarise the Applicant’s offending for the purposes of this decision.
[2] See Decision of Senior Member Theodore Tavoularis dated 8 June 2017.
The nature of the offending prior to 17 September 2009
The offending conduct of the Applicant before his receipt of the warning letter on
17 September 2009 is accurately summarised by the Minister’s representative in its Statement of Facts, Issues and Contentions (“SFIC”), dated 18 November 2016. The list of offences running from 6 March 2006 until 26 August 2009 is both consistent and serious, with potential to cause very serious and possibly catastrophic harm.
The offending during this period may not immediately attract a label of “very serious offending”. However, it is clear from the nature of the offences and how they were committed that the Applicant has (1) failed to properly address and control his predisposition to abusing alcohol and (2) failed to comprehend that consumption of mind‑influencing/altering levels of alcohol must never be allowed to impact upon one’s operation of a motor vehicle.
Pre-17 September 2009, the pattern of offending may be stated thus:[3]
[3]     Exhibit 2, Respondent’s SFIC, pp. 2-4; Exhibit 3, s37 T-Documents, T2, pages 29-32, 49-54.
(a)6 March 2006 (Brisbane Magistrates Court) – trespass – fined $200;[4]
[4]     No conviction was recorded.
(b)29 May 2006 (Beenleigh Magistrates Court) – unauthorised dealing with shop goods – fined $250 and ordered to pay restitution of $10;[5]
[5]     No conviction was recorded.
(c)25 July 2006 (Brisbane Magistrates Court) – two counts of failure to appear in accordance with undertaking – fined $180;
(d)9 June 2007 (Brisbane Magistrates Court) – unlicensed driving and high range driving under the influence of alcohol – two months’ imprisonment and disqualified from driving for three years;
(e)11 August 2007 (Brisbane Magistrates Court) – failure to appear in accordance with an undertaking – fined $600;
(f)7 November 2007 (Brisbane Magistrates Court) – found to have breached a probation order imposed on 19 October 2006;[6]
[6]     No conviction recorded.
(g)7 July 2008 (Newcastle Local Court) –
(i)Disqualified driving – three months’ imprisonment and licence disqualified for two years;
(ii)Disqualified driving – three months’ imprisonment and licence disqualified for two years;
(iii)Driving with middle range prescribed concentration of alcohol – three months’ imprisonment and licence disqualified for 12 months;
(iv)Receiving property stolen outside New South Wales – three months’ imprisonment; and
(v)Driving with low range prescribed concentration of alcohol – sentenced to rising of the court and licence disqualified for 6 months.
The three-month custodial terms for each of the preceding offences, particularised at (i), (ii), and (iii) of this sub-paragraph were ordered to be served concurrently. The three-month custodial term for the offence described at (iv) was cumulative on the earlier term of three months for the offending described at (i), (ii), and (iii). Therefore, the period of actual custody was six months in total.
(h)7 July 2008 – as a consequential part of the sentencing regime described in the immediately preceding sub-paragraph (g), the Applicant was dealt with for offences arising from his use of a motor vehicle under his care, management and control. Accordingly, the Local Court convicted him of the following five offences, but did not further punish him –
(i)Use of uninsured motor vehicle;
(ii)Exceeded speed;
(iii)Use of unregistered registrable Class A motor vehicle;
(iv)Driver/rider stated false name/address; and
(v)Class A vehicle displaying unauthorised number plate.
(i)16 April 2009 (Brisbane Magistrates Court) –
(i)Convicted for failing to appear in accordance with an undertaking;
(ii)Driving under the influence of liquor (0.150 and over) - disqualified from driving for 6 months; and
(iii)
Convicted of driving while disqualified - disqualified from driving for

2 years.
Each of the two immediately preceding offences at (ii) and (iii) above were sentenced on a cumulative basis, that is, the Applicant was disqualified from driving for a total period of 30 months. The Applicant was also sentenced to four months’ imprisonment for each of the offences contained at (ii) and (iii) above. There is no available evidence as to whether these two sentences were to be served concurrently or cumulatively.
(j)26 August 2009 (Rockhampton Magistrates Court) –
(i)Convicted of contravening a direction or requirement (2 charges);
(ii)Assaulting or obstructing a police officer;
(iii)
Driving under the influence of liquor (0.150 and over) - sentenced to

12 months’ imprisonment and disqualified from driving for 12 months; and
(iv)Driving while disqualified - sentenced to 12 months’ imprisonment and disqualified from driving for two years.
For each of the immediately preceding offences, particularised at (iii) and (iv) above, the Applicant’s disqualification from driving was for the cumulative period of those respective disqualifications. That is, he was disqualified from driving for

3 years. His prison terms were also to be served cumulatively, that is, for a total period of 24 months. Further, with particular reference to the offences in the immediately preceding paragraphs (i) and (ii) above, the Applicant was convicted but no further penalty was imposed for these two offences.
The nature of the offending post 17 September 2009
His offending post the warning letter dated 17 September 2009 can be summarised thus:[7]
[7] Exhibit 2, Respondent’s SFIC, pp. 2-4; Exhibit 3, s37 T-Documents, T2, pages 29-32, 49-54.
(a)21 June 2010 (Bundaberg Magistrates Court) – committing public nuisance – fined $500;
(b)28 July 2010 (Brisbane Magistrates Court) – unauthorised dealing with shop goods – entered into recognisance in the sum of $150 to be of good behaviour for four months (no conviction recorded);
(c)30 August 2010 (Brisbane Magistrates Court) – committing public nuisance – fined $250 (no conviction recorded);
(d)5 November 2010 (Brisbane Magistrates Court) – failing to appear in accordance with an undertaking – seven days’ imprisonment, to be suspended for 6 months. I note that on 21 March 2011 and 11 April 2011, the Applicant appeared before the same court, which, on each occasion, ordered that his suspended sentence be extended by one day. It appears that this was for breaching the terms of his suspended sentence;
(e)21 March 2011 (Brisbane Magistrates Court) – failing to appear in accordance with an undertaking – fined $250 (conviction recorded);
(f)11 April 2011 (Brisbane Magistrates Court) – trespass (entering or remaining in dwelling or yard) – convicted (no penalty imposed);
(g)29 June 2011 (Brisbane Magistrates Court) –
(i)Contravening direction or requirement; and
(ii)Possessing a knife in a public place or school.
For both of these offences, the Applicant was fined $400;
(h)15 July 2011 (Cleveland Magistrates Court) –
(i)Breaching a bail granted condition;
(ii)Contravening a direction or requirement.
The Applicant was convicted of both offences but no penalty was imposed.
(i)5 November 2012 (Brisbane Magistrates Court) – failure to appear in accordance with an undertaking – sentenced to 14 days’ imprisonment, to be suspended for 8 months (concurrent);
(j)4 February 2013 (Richlands Magistrates Court) – failing to appear in accordance with an undertaking – sentenced to 14 days’ imprisonment (cumulative);
It is not immediately clear from the T-Documents[8] as to whether the Applicant served a total of 14, or 28 days for the offending particularised at (i) and (j) above. As I read the relevant document, I consider it safe to assume that he served at least 14 of the total of 28 days of custodial time represented by these two sentences.
[8] Exhibit 3, s37 T-Documents, T2, page 30.
(k)7 May 2013 (Brisbane Magistrates Court) –
(i)Breach of a community service order imposed on 17 May 2012 – resentenced for the original offences for which that order was imposed and fined $100;
(ii)Evading a fare (two charges);
(iii)Common assault – sentenced to two months’ imprisonment (suspended for 12 months after serving 54 days);
(iv)Failing to appear in accordance with an undertaking – sentenced to 21 days’ imprisonment (suspended for 12 months after serving 54 days);
(v)Breaching a bail condition (two charges) – sentenced to 14 days’ imprisonment (concurrent);
(vi)Failing to appear in accordance with an undertaking – sentenced to 14 days’ imprisonment (suspended for 12 months after serving 54 days);
The custodial terms particularised at the immediately preceding (iii), (iv) and (vi) were ordered to be served cumulatively. The Applicant’s 14 day sentence particularised at (v) above was to be served concurrently to these sentences. In all, the Applicant served 54 days in prison, after which the remainder of his sentence was suspended for 12 months;
(l)1 January 2014 (Brisbane Magistrates Court) – breach of order imposed on 7 May 2013. The Court fully invoked the suspension periods and the Applicant served the balance of the time particularised in paragraph (k) above;
(m)10 January 2014 (Brisbane Magistrates Court) – failing to appear in accordance with an undertaking – one month’s imprisonment to be suspended for 12 months;
(n)24 January 2014 (Richlands Magistrates Court) –breach of order imposed on 10 January 2014 – the Court invoked the suspended sentence imposed on 10 January 2014 and
(o)24 January 2014 (Richlands Magistrates Court) – failing to appear in accordance with an undertaking – sentenced to one month’s imprisonment, cumulatively with the custodial term particularised in the immediately preceding paragraph (n);
(p)25 February 2014 (Brisbane Magistrates Court) – failing to appear in accordance with an undertaking – sentenced to one month’s imprisonment (concurrent);
(q)26 February 2014 (Brisbane Magistrates Court) – breach of bail condition granted – convicted, no penalty imposed; and
(r)5 May 2014 (Holland Park Magistrates Court) –
(i)Trespass – fined $450;
(ii)Driving a motor vehicle while under the influence of liquor (over the high-alcohol limit) – sentenced to 12 months’ imprisonment and disqualified from driving for 20 months;
(iii)Driving while disqualified – sentenced to 9 months’ imprisonment and disqualified from driving for two years.
For each of the immediately preceding offences, particularised at (ii) and (iii) above, the Applicant’s disqualification from driving was for the cumulative period of those respective disqualifications. That is, he was disqualified from driving for 44 months. His prison terms were also to be served cumulatively, that is, for a total period of 21 months.
I note that this list may not include the totality of the Applicant’s offending, because, inter alia, there is no entry for 17 May 2012 involving the making of a community service order, even though the Applicant was subsequently found guilty of breaching its terms, on 7 May 2013.
In terms of the Applicant’s removal from the Australian community in either or both criminal custody and/or immigration detention, the following transpired at the hearing:
“APPLICANT: That’s 24 November 2014, that’s when I got arrested and I never see outside again.
SENIOR MEMBER: Right, so you’ve been in continuous custody either in criminal custody or immigration detention since November 2014?
APPLICANT: Yes, I breach my parole and I been in gaol since November 24 and I got released to detention on 12 May 2015. So that’s about six months in prison and then back to detention in May 2015.”[9]
[9] Transcript, 12 August 2019, page 6, lines 38 to 46.
While serving his term of imprisonment (i.e. criminal custody), a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Minister” or “the Respondent”), pursuant to s 501(3A) of the Migration Act 1958 (Cth) (“the Act”), decided on 1 May 2015 to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test.[10]
[10] Exhibit 2, s37 T-Documents, T2, pages 42 to 44.
On 25 May 2015, the Applicant submitted a request for revocation of this initial cancellation decision. He made representations for the revocation of the original decision on 14 July 2016. The delegate of the Minister decided on 22 July 2016, pursuant to s 501CA(4) of the Act not to revoke the cancellation of the subject visa.
The Applicant lodged an application with this Tribunal on 8 August 2016 seeking a review of the abovementioned decision dated 22 July 2016 not to revoke the cancellation of his visa.[11] That application was heard by this Tribunal on 25 January 2017. This Tribunal affirmed the non-revocation decision of the delegate dated 22 July 2016.
[11] Ibid, T2, pages 3-9.
The Applicant filed an application to the Federal Court of Australia for judicial review of this Tribunal’s decision dated 8 June 2017. There followed orders made by consent under the hand of His Honour Judge Bromberg on 15 January 2018 for the remittal of the Tribunal’s decision dated 8 June 2017. The consent orders dealing with the remittal, inter alia, said the following:
“…THE COURT ORDERS BY CONSENT THAT:
1.The decision of the Second Respondent (case no. 2016/4209) made on 8 June 2017 be set aside.
2.The matter be remitted to the Second Respondent for reconsideration according to law.
3.The First Respondent pay the Applicant’s costs fixed in the amount of any filing fees.
NOTE: The First Respondent concedes that the Second Respondent’s decision is affected by jurisdictional error, of the kind found in BCR16 v MIBP [2017] FCAFC 96, on the basis of the Second Respondent’s finding that it was unnecessary to consider non-refoulement obligations when they were advanced as a basis for why the cancellation should be revoked. Instead, the Second Respondent noted that the applicant could apply for a Protection visa and it was there that those claims would be considered.
Date that entry is stamped: 15 January 2018
Registrar…”[12]
[12] Exhibit 11, Orders of Justice Bromberg made on 15 January 2018.

This Tribunal has jurisdiction to review this decision pursuant to s 500(1)(ba) of the Act. The hearing of the instant application proceeded before me on 12 August 2019 and received oral evidence from the Applicant, his mother, two of his sisters, and three additional lay witnesses. The Tribunal also received written evidence. This written evidence was categorised into an agreed exhibit list, a true and correct copy of which is attached hereto and marked “A”.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(4)       The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be revoked.
There is no question that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[13]
“…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…”[14]
[13] [2018] FCAFC 151.
[14] 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).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[15] I will address each of these grounds in turn.
[15] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
The Applicant has been sentenced to a period of 12 months’ imprisonment at least three times: on 26 August 2009 (twice), and on 5 May 2014, respectively. The Applicant therefore has a “substantial criminal record” within the meaning of that subsection 501(7)(c) such that he does not pass the character test. There can be little or no doubt that the custodial terms imposed upon the Applicant engage the provisions of s 501(7)(c) such that the Applicant does have a substantial criminal record.
As mentioned, the Applicant’s criminal history in this country (in terms of sentencing episodes) runs from 6 March 2006 until 5 May 2014. I have also had regard to the custodial terms appearing in his traffic history. Looking at his traffic history, he has received a cumulative total of 71 months’ of head custodial sentences. Looking at his criminal history, he has received a cumulative total of approximately 20 months’ of head custodial sentences. This gives a total of 91 months of custodial time, which equates to approximately seven years.
Therefore, from the date of his arrival in Australia (July 2004), until his removal from the Australian community in November 2014, some seven years of head custodial time has been imposed upon this Applicant consequent upon his offending. This equates to approximately 70% of his time in the general community of this country until his removal from that community in November 2014.
The custodial sentences imposed on the Applicant regularly involved his early release on either suspended sentences or parole. I note that what matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they have actually served.[16]
[16] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416; See also s 501(7A) of the Act which relevantly provides: “(7A) Concurrent sentences For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms. Example: A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.”
I am consequently satisfied that the Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) has application.[17] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
(1)…a decision maker:
…
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.[18]
[17] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, was revoked and was replaced by Direction 79. The above mentioned earlier decision of this Tribunal dated 8 June 2017 was decided pursuant to Direction 65. Due to the superseding of Direction 65 by Direction 79 on 28 February 2019, this decision will be decided pursuant to Direction 79.
[18] The Direction, sub-paragraph 7(1)(b).
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a

non-exhaustive list in paragraph 14 of the Direction. These considerations are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[19]
“…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.”[20]
[19] [2018] FCA 594.
[20] Ibid, [23].
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are 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;
(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 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;
(5)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;
(6)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 be allowed to come to or remain permanently in Australia; and
(7)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 for determining whether to exercise the discretion.
I will now turn to addressing these considerations.
Primary Consideration A – Protection of the Australian Community
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to 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. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
The Applicant concedes the following:
“…that he committed a number of serious crimes as an adult and, further, that as a result of him being sentenced to terms of imprisonment of 12 months or more he fails the character test as defined by s.501 of the Act…”[21]
and
“…I unfortunately got mixed up with the wrong type of people and from there I done things I never thought I was capable of. Unfortunately not having a strong family unit around me I found it very difficult to move away from trouble…I understand fully the seriousness of my offenses [sic] and the good friends which have relied around me are also aware and have expressed their concerns and they have reassured me that they will support me as a strong family unit to bring me closer to them so that I don’t stray away from leading a good, healthy positive lifestyle…”[22]
[My underlining, errors in original quotations]
[21] Exhibit 1, Applicant’s SFIC, page 2, paragraph [6].
[22] Exhibit 13, Submission by Applicant.
The Respondent contends that:
“39. In summary, the Minister contends that given:
(a) the high number of criminal offences committed by the Applicant…
(b) the seriousness of the Applicant’s offences…
(c) the sentences imposed by the courts…
(d) the frequency and repetitiveness of the Applicant’s offending…
(e) the cumulative effect of the Applicant’s repeated offending…
(f) the fact that, despite being put on notice, in writing,…the Applicant continued to commit serious criminal offences…
the Tribunal should conclude that [the Applicant]’s conduct to date has been extremely serious, and the nature and seriousness of [the Applicant]’s conduct should weigh heavily in favour of the Tribunal affirming the Non-Revocation Decision.”[23]
[23] Exhibit 15, Respondent’s SFIC, pages 10-11, paragraph [39].
On any reasonable and objective view, the totality of the Applicant’s criminal and traffic history is, at the very least, serious. The sheer consistency and repetitiveness of his failure to realise that excessive consumption of alcohol and driving are two things that should never be mixed is remarkable. What is fortuitous is the fact that he has so far avoided any serious collision, either with another motorist or a pedestrian in the course of his driving history.
There has been something in the order of 26 separate court appearances deriving from the commission of something in the order of 43 criminal offences. His offending is not exclusively limited to high-range drink driving, though that is a notable element of it. It also includes the infliction of physical harm upon others, and a direct challenge to lawful authority (in a physical sense), comprising an assault or obstruction of a police officer.
A further significant feature of the Applicant’s criminal conduct (and no less remarkable than the others), is his persistent failure to abide by terms or obligations imposed upon him by lawful authority, as those terms or obligations relate to his conduct both towards lawful authority and, more generally, the community. It is verging on the extraordinary to see such a large number of either (a) failures to appear before a court and/or (b) failures to comply with good behaviour bonds or other personal obligations in his criminal history. There was no suggestion, at the hearing or in the material, that the Applicant did not understand the terms of the obligations that had been imposed on him.
His criminal history has – in terms of his sentencing – a theme of virtual exasperation being expressed by the sentencing judicial officers, where they had before them the consistency and regularity of the Applicant’s prior offending and inevitably felt compelled to impose custodial terms. As is well established, the imposition of a custodial term is regarded as a measure of last resort in a court’s sentencing discretion. There is no other conclusion than to think the sentencing Courts viewed the Applicant’s conduct as serious, and, accordingly, imposed respective custodial terms, quite often to be served on a cumulative basis.
It is contended on behalf of the Applicant that he does have “a significant history of alcohol abuse”.[24] This abuse of alcohol is apparently attributable to a traumatic childhood, associating with the wrong crowds, and feelings of hurt and anger. He says a further reason for his abuse of alcohol is that he has not had family support while in Australia, resulting in him having feelings of social isolation. The primary evidence in support of this contention comprises the Applicant’s own statement, appearing in the T‑Documents.[25] Although I do note that there is a medical report supporting the Applicant’s alcoholism,[26] it does not go to the question of treatment – all forms of treatment other than “alcohol abstinence” are listed as being “planned”. There is no evidence before me that the Applicant in fact underwent any serious treatment for his alcoholism.
[24] Exhibit 1, Applicant’s SFIC, page 3, paragraph [13].
[25] Exhibit 3, s37 T-Documents, T2, page 78.
[26] Ibid, T2, page 79.
In terms of mitigating factors, at the hearing, the Applicant contended that even though the majority, if not all, of his offending related to him being intoxicated or otherwise affected by liquor, the Tribunal should have regard to the following mitigating factors:
(a)The offending was not pre-meditated;
(b)There would have been no motivation to reoffend, but for his abuse of alcohol;
(c)The Applicant’s alcoholism has been medically diagnosed.[27]
[27] Exhibit 1, Applicant’s SFIC, page 3.
I have grave difficulty in allocating any credence to these asserted mitigating factors. Each factor relies on the Applicant’s alcoholism as an excuse for his behaviour. I disagree that one’s predisposition to intoxication is somehow a reason for a decision-maker to find that an offender’s behaviour should be ignored or accepted. Intoxication is not an excuse for one’s behaviour, no matter what. It is simply insufficient for the Applicant to rely on his intoxication to suggest that his offending was not particularly significant, especially when the most serious of the Applicant’s offences were alcohol-related. This is particularly true when there is next to no evidence before me that the Applicant has sought treatment for alcohol abuse.
The Applicant’s consistent lack of judgment when consuming alcohol, and then purporting to operate a motor vehicle, is serious and alarming. His drink driving history is appalling. On two occasions, he has been apprehended with a blood alcohol content of a medium level. On four occasions, with a high level. On two of those four high level occasions with an extraordinary blood alcohol level of almost six times the legal limit.
At the risk of repeating myself, the sentencing Courts have seen fit to impose combined custodial terms upon him that can be measured in a period of years, not just one isolated sentence of 12 months. One sentencing judicial officer made himself very clear:
“For the drink driving and the disqualified driving, the only outcome is a term of imprisonment. You have a serious problem with alcohol. You have been given the opportunity of probation some time ago. You failed that. I also see on your history, and I omitted to raise this with [lawyer], but you’ve also breached a community service order. You are with levels of alcohol at .285 a danger to yourself and a significant danger to other road users. I’ve reached the conclusion, as I say, that a term of imprisonment, given your history and given those facts and given that reading, that a term of imprisonment is the only outcome.”[28]
[28] Exhibit 3, s37 T-Documents T6, page 56.
The Respondent’s contention is therefore well made: the cumulative effect of the Applicant’s drink driving offences plainly demonstrates his blatant disregard for the road rules and the general safety and welfare of members of the Australian community. The Tribunal, likewise, takes a stringent attitude to drink driving offences in considering whether to exercise the relevant discretion:
“…Driving while under the influence is indeed a serious issue and one that few in this country should be expected to tolerate. The risks associated with it are serious and sometimes disastrous, resulting in a loss of life or physical injury.”[29]
[29] NSWQ and Minister for Immigration and Border Protection [2016] AATA 373, [58] (Kendall DP).

There is also a noticeable increase in the seriousness of the Applicant’s offending, graduating to physical interference with the personal rights of others. He is a man of 38 years, and, without question, is sufficiently mature to understand the nature and effect of what he is doing. He must surely be aware of the number of his offences and the frequency of his appearances before the courts. Likewise, he must surely be able to comprehend both the seriousness of a relatively lengthy custodial term, and that such terms are usually imposed by the courts in this country as a measure of last resort, where an offender simply fails to learn their lesson.
I find that the Applicant’s conduct to date has been extremely serious. I therefore have little difficulty in agreeing with the Minister’s delegate in finding that the totality and repetitive nature of this Applicant’s offending can be viewed seriously in terms of its overall impact on the community.
Consequently, this factor weighs heavily in favour of exercising the discretion to cancel his visa.
Application of Paragraph 13.1.1(1) of the Direction
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst the factors in paragraph 13.1.1(1) of the Direction therefore are:
(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)…
(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 paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)…
(h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(i)…
Sub-paragraph (a) of Paragraph 13.1.1(1) of the Direction provides that crimes of a violent and/or sexual nature are viewed very seriously. The Applicant’s criminal history is not redolent of a propensity towards violence. Be that as it may, amongst the 43 criminal offences he has committed, two of those offences have involved the infliction of physical harm upon individual members of the Australian community. Notably, one of those victims was a police officer who was the subject of an assault committed by the Applicant.
The criminal history discloses (1) that on 26 August 2009 the Applicant, in the course of refusing to follow the lawful direction or requirement of a police officer, proceeded to “assault or obstruct” the police officer, and (2) that on 7 May 2013 the Applicant was imprisoned for two months consequent upon the commission of a “Common Assault” offence. Accordingly, I am of the view that this sub-paragraph (a) weighs in favour of a finding that the Applicant’s offending is of a very serious nature.
Sub-paragraph (b) of Paragraph 13.1.1(1) of the Direction provides that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed. An initial point should be made that the Tribunal’s earlier decision was predicated on the application of the previous Direction (Direction 65). That earlier Direction did not include a sub-paragraph relating to the commission of crimes of a violent nature against women or children. As best as I recall and comprehended the material, no aspect of the Applicant’s offending involved the commission of offences in this realm. Thus, this sub-paragraph (b) is thus not relevant to determination of this application.
Sub-paragraph (c) of Paragraph 13.1.1(1) of the Direction provides that “crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the positions they hold, or in the performance of their duties, are serious.” The evidence contains at least three instances of the Applicant directly challenging law enforcement officers charged with responsibility for ensuring members of the Australian community obey the law:
·On 26 August 2009, the Applicant was convicted of two counts of contravening a lawful direction or requirement of a police officer, and, further, assaulting or obstructing a police officer;
·On 29 June 2011, the Applicant was convicted of contravening a direction or requirement of a person in lawful authority; and
·On 15 July 2011, the Applicant was convicted of a further charge of contravening a direction or requirement of a person in lawful authority.
Thus, this sub-paragraph (c) weighs in favour of a finding that the Applicant’s offending in this country has been of a very serious nature.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraph (b) of paragraph 13.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are also viewed as a reflection of the objective seriousness of a given offence committed by an Applicant.
This Applicant’s history of offending (in terms of sentencing episodes) in Australia starts on 6 March 2006 and runs until 5 May 2014. In terms of its recorded history, the Applicant’s offending involved the imposition of cumulative head custodial terms of seven years, or 91 months.
He had been in Australia for something like four years until the imposition of his first custodial term (imposed on 7 June 2008). The Applicant’s offending has been such that judicial sentencing officers have frequently found themselves with no other reasonable option other than the imposition of a term in custody. As noted by the learned Stipendiary Magistrate who sentenced the Applicant on 5 May 2014:
For the drink driving and the disqualified driving, the only outcome is a term of imprisonment. You have a serious problem with alcohol. You have been given the opportunity of probation some time ago. You failed that. I also see on your history, and I omitted to raise this with [lawyer], but you’ve also breached a community service order. You are with levels of alcohol at .285 a danger to yourself and a significant danger to other road users. I’ve reached the conclusion, as I say, that a term of imprisonment, given your history and given those facts and given that reading, that a term of imprisonment is the only outcome.[30]
[30] Exhibit 3, s37 T-Documents T6, page 56.
Of the 43 individual offences appearing in his criminal history, 14 of those have been punished by custodial terms. Of the approximately 24 individual offences appearing in his traffic history, some eight of those have been punished by custodial terms. The Applicant is now 38 years of age. In terms of weight attributable to this sub-paragraph (d), his offending has been punished by head custodial terms totalling some seven years. This represents approximately 70% of his time in the mainstream Australian community for the roughly 10 years preceding his entry into criminal custody/immigration detention in November 2014.
Taken cumulatively, there can be no finding other than that the sentences imposed by the courts for the crimes of the Applicant clearly militate in favour of the allocation of a significant measure of weight in favour of a finding that his offending in this country has been very serious.
Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness. To an extent, the allocation of any weight to this sub-paragraph (e) largely replicates the exercise required by the immediately preceding sub-paragraph (d). This is because any increasing trend in the seriousness of the offending is usually analogous to the regime of sentencing imposed for it.
I will deal first with the frequency of the Applicant’s offending. As mentioned, the Applicant is presently 38 years of age. At the time of his removal from the Australian community (November 2014), he had an offending history spanning the period March 2006 until May 2014. This offending history discloses the commission of 43 offences committed during his approximately 10 years in the Australian community. He is thus responsible for the commission of something in the order of between four and five offences during each of those ten years. This figure does not take into account any period he may have spent in actual custody prior to November 2014. I find that the Applicant’s offending has been of a frequent nature.
The seriousness of his offending cannot be said to be decreasing over the course of its time span. From its commencement, the Applicant’s offending is demonstrative of an individual who (1) has failed to understand the property rights of others, and (2) who also fails to respect lawful authority requiring him to, for example, appear in a court pursuant to an undertaking as to bail. The concerning aspect of his offending is that superimposed over his offences against (1) the person and (2) lawful authority, is the unresolved spectre of his predisposition to seriously abuse alcohol.
To the extent one can glean any measure of increase in the level of seriousness of his offending, it is to be found in the blood alcohol concentrations that he has recorded in the course of his offending. As noted by the Respondent, his drink driving has seen him deliver the following blood alcohol concentration (“BAC”) readings while purporting to be in control of a motor vehicle:
a)18 March 2006 – BAC of .124 (i.e. two and a quarter times over the legal limit);
b)22 September 2006 – BAC of.124 (i.e. two and a quarter times over the legal limit);
c)9 June 2007 – BAC of .280 (i.e. five and a half times over the legal limit);
d)30 December 2008 – BAC of .176 (i.e. three and a half times over the legal limit);
e)26 August 2009 – BAC of .171 (i.e. three and a half times over the legal limit); and
f)4 October 2013 – BAC of .285 (i.e. nearly six times over the legal limit.
Parallel with a finding that his BAC readings - throughout his history – have remained very high, there can be a finding that his offending has, thereby, remained at a consistently high level (in terms of seriousness). It is, to my mind, very notable that his last offence of drink driving (committed in October 2013) involved him being detected with a BAC of .285 – nearly six times over the legal limit – which, in itself, was the singular highest BAC reading for which he had ever been detected.
An application of this sub-paragraph (e) therefore leads to a finding that both the frequency of his offending, as well as (at least) its consistency, but, more likely, its increasing level of severity, must attract a finding that this Applicant’s offending has been of a very serious nature.
Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending.
To my mind, a significant cumulative effect to be taken from the Applicant’s repeated offending derives from (in terms of sentencing episodes) its eight year length. He does not have an offending history in this country as a juvenile. He committed his offences across an eight year period ranging from his mid-twenties to his early-mid thirties. Thus, he cannot rely on an excuse such that he committed his offences as a juvenile or as a person not otherwise experienced in the ways of life. His offending has been committed as a mature adult.
The Applicant has received a number of opportunities throughout his offending history to reform his behaviour and to otherwise seek professional or clinical assistance in doing so. Even a cursory review of his criminal history demonstrates that, on at least 24 occasions, he has received the benefit of fines, suspended sentences and convictions with no penalty imposed. He has demonstrably failed to experience any deterrent effect or to undergo any level of rehabilitative reform. To his credit, he was readily forthcoming in cross‑examination about the seriousness of his offending and about the reality that he had failed to modify his conduct.
He was taken to his criminal history and said these things:
“MS FENNELL:[31] Now, [Applicant], I’d like to ask you some questions about your criminal offending, so in the documents, in the bundle of documents you have your criminal history is on page 29 to page 32, if you would like to look at that for a reference. So this document - - ?
APPLICANT: 29?
MS FENNELL: 29 to page 32. Have you got that one open there?
APPLICANT: Yes. 29?
MS FENNELL: Yes. So this document indicates that you’ve appeared before court on 26 separate occasions and you’ve been charged with around 43 offences. Do that appear correct to you?
APPLICANT: Yes, yes. Is that the page at National Police Certificate?
MS FENNELL: Yes, it is?
APPLICANT: All right.”[32]
[My emphasis and underlining]
[31] Ms Georgia Fennell, Lawyer, Clayton Utz, representative of the Respondent.
[32] Transcript, 12 August 2019, page 9, lines 33-45.
At the earlier hearing before this Tribunal, it was contended that even though most of the Applicant’s offending related or derived from him being intoxicated or otherwise adversely affected by liquor, the following mitigating factors should be taken into account:
(a)The offending was not pre-meditated;
(b)There would have been no motivation to reoffend, but for his abuse of alcohol; and
(c)The Applicant’s alcoholism has been medically diagnosed.[33]
[33] Exhibit 1, Applicant’s SFIC, page 3.
For the same reasons I outlined in my previous decision, I have grave difficulty in allocating any credence to those asserted mitigating factors. For reasons that will follow, I will find that the Applicant’s predisposition to abuse alcohol is by no means an issue that is under any sort of clinically demonstrable remedial management, control or treatment. The Applicant cannot excuse his offending on simply being intoxicated at the time of the commission of his very serious offences. To my mind, a very significant cumulative effect of the Applicant’s repeated offending is that none of the mitigating factors propounded on his behalf at either the previous hearing or the later one serve to ameliorate the seriousness of his conduct.
For present purposes, the best evidence before the Tribunal is that the Applicant has consistently lacked any measure of judgment in terms of his consumption of alcohol. There are two extraordinary elements to his drink driving history. First, the stark reality that he has been apprehended with a BAC reading of a medium level on two occasions, while also having been apprehended with a BAC reading of a high level on four occasions. As mentioned earlier, two of those four high level BAC readings involved him recording a BAC level of almost six times over the legal limit – while still purporting to control a motor vehicle. The second extraordinary element of the Applicant’s drink driving offending is that the Applicant has thus far fortuitously avoided causing catastrophic harm to himself or other road users.
The other, and to my mind very significant, cumulative effect of the Applicant’s offending involves the astonishing number of instances where he has failed to develop any measure of respect for the lawful authority governing the community into which he now seeks re-admission. His criminal history discloses some 26 separate instances of offending aimed squarely at lawful authority. This offending involved him (1) failing to appear in accordance with duly provided undertakings, (2) breaches of probation orders, (3) a refusal to provide requested details to law enforcement officers, (4) contravening a lawful direction or requirement of law enforcement officers, (5) breaches of other orders, (6) breaches of bail, (7) evading applicable fares for using public transport, and (8) a breach of a community service order.
Allied to this cumulative effect of his offending are numerous instances of him failing to respect the property rights of others, including but not limited to offences described as (1) unauthorised dealing with shop goods, (2) receiving stolen property, and (3) trespass. The cumulative effect of the nature and extent of the Applicant’s repeated offending clearly attracts application of this sub-paragraph (f) in favour of a finding that his offending has been of a very serious nature.
Sub-paragraph (g) of Paragraph 13.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending. There is no evidence that the Applicant has provided false or misleading information to the Department, and this subparagraph (g) is of no relevance to determination of the instant application.
Sub-paragraph (h) of Paragraph 13.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status. There can be no doubt that this Applicant has indeed offended after being formally warned by the Respondent.
The material discloses a letter from the Respondent dated 17 September 2009. There can be no denying that this document constitutes a “formal warning” pursuant to this sub‑paragraph (h). The letter relevantly provided as follows:
“…
It has come to this department’s attention that you have a criminal record. I am writing to make you aware of the operation of section 501 of the Migration Act 1958 (the Act).
Subsection 501(2) of the Act states that the Minister may cancel a visa that has been granted to a person if the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that he or she passes the character test.
The character test is defined at subsection 501(6) of the Act, which sets out a number of different grounds under which a person may not pass the character test. A copy of section 501 of the Act is attached for your information. You should read this document carefully.
At present, no consideration is being given to cancelling your visa under section 501 of the Act. Your visa therefore continues to provide you with authority to remain in Australia.
The purpose of this letter is to warn you that any further criminal convictions, or any other conduct on your behalf that comes within the scope of subsection 501(6), could result in consideration of the cancellation of your visa. The consequences of visa cancellation under section 501 of the Act include removal of the former visa holder from Australia and, in certain cases, bars on re-entering Australia.”[34]
[My emphasis and underlining]
[34] Exhibit 3, s37 T-Documents, T2, page 35.
The abovementioned correspondence from the Respondent (at the third page) contains a self-serving acknowledgement to be signed and dated by the Applicant by way of confirmation of his understanding of the letter’s nature and effect.[35] It is apparent from the T-Documents that the third, or acknowledgement, page of this correspondence was signed by the Applicant and returned to the Respondent.[36] The Applicant did not deny receipt of this letter. There is no contention that he did not understand its contents.
[35] Ibid, page 177.
[36] Ibid, page 180.

Despite receiving this letter, the Applicant continued to offend. The only way to construe the Applicant’s conduct after receipt of this letter is to find that he was totally ignored the warning contained within it. I have earlier outlined, in some measure of detail, the Applicant’s offending post-17 September 2009. Suffice it to say that, for present purposes, this component of his offending history discloses the following:
·The Applicant found himself before lawful authority for sentencing on 18 separate occasions;
·These sentencing episodes dealt with the commission of 29 separate offences; and
·Judicial sentencing officers imposed (1) head custodial terms of a cumulative period of eight months, (2) six fines, and (3) other sentences in the form of good behaviour bonds and/or wholly suspended custodial terms.
The content and terms of the formal letter of warning issued by the Respondent to the Applicant on 17 September 2009 could not have been clearer. The Applicant’s blatant disregard of this formal warning is palpable and beyond excuse. The reality that the Applicant has ignored a duly issued warning by the Respondent about the adverse impact that his continued offending conduct would have on his migration status in this country is, to my mind, confirmatory of the very serious nature of his subsequent conduct.
He has been given multiple opportunities (by both judicial sentencing officers, plus via this letter of warning) to modify and ameliorate his conduct. He has failed to do so after each such opportunity and, indeed, has persistently continued to offend after each such opportunity. This refusal to heed the Minister’s very clear formal letter of warning is a factor that, pursuant to this sub-paragraph (h) of paragraph 13.1.1(1) of the Direction, attaches a label of “very serious” to the nature of the Applicant’s offending.
Sub-paragraph (i) of Paragraph 13.1.1(1) of the Direction refers to a non-citizen who has committed a crime while in immigration detention in Australia. There is no evidence of this Applicant having committed a crime while in immigration detention in Australia. This sub‑paragraph (i) is not relevant to determination of this Application.
Having regard to the totality of the evidence to which the abovementioned relevant sub‑paragraphs (a), (c), (d), (e), (f) and (h) of paragraph 13.1.1(1) of the Direction, I am of the view that the Applicant’s conduct is readily capable of characterisation as “very serious”.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:
(a)paragraph 13.1.2(1)(a) requires me to consider 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)paragraph 13.1.2(1)(b) requires me to consider 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 reoffending.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
At the previous hearing before this Tribunal, the Applicant contended that the harm resulting from any future offending by him would be minimal to non-existent because his risk of recidivism was said to be low. The basis of this contention was that:
“16. [The Applicant]’s previous offending was completely related to an alcohol dependency and being in the presence of friends he no longer associates with. It is therefore submitted that [the Applicant]’s risk of recidivism is low if he stays clear of alcohol and his former associates. By his own words, [the Applicant] has been away from alcohol for over 20 months by reason of his incarceration a [sic] feels that his life has improved because of it.”[37]
[37] Exhibit 1, Applicant’s SFIC, page 3, paragraph [16].
In the instant hearing, the Applicant said in a written submission:
“I have taken steps to recondition myself and find better things to introduce into my life in order to never find myself going down the road which has led me to finding myself in the circumstances I‘m in at present.
I have taken on many programs and courses to insure [sic] that I don’t do anything that I have in the past.”[38]
[38] Exhibit 13, Submission by Applicant.
Alternatively, the Respondent contends that:
“41. The nature of the harm to individuals or the Australian community should the Applicant engage in further criminal conduct of the kind in which he has previously engaged (particularly, violent assault and/or high-range drink driving) could range from serious physical and/or psychological injury to death.”[39]
[39] Exhibit 15, Respondent’s SFIC, page 11.
Paragraph 6.3(4) of the Direction stipulates that decision-makers should be guided by the principle that criminal offending 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. On the basis of this paragraph 6.3(4), I think the Respondent’s abovementioned submission is correct.
Having regard to the consistent nature of the Applicant’s criminal conduct across its eight year duration, there is much to suggest that, were he to re-offend if returned to the Australian community, the consequences would be very serious and would, quite conceivably, involve significant, and potentially catastrophic physical or psychological harm to members of that community. Put simply, having regard to the preponderance of very serious offending in his history and the virtually perpetual superimposition of excessive alcohol consumption over almost the entirety of that conduct, it would be unsafe to find that, were he to resume his past offending, the nature of the harm to any victim would be somehow minimal or insignificant. Clearly, it would not.
It is trite to suggest that the Applicant’s history contains a number of less serious offences and, on that basis alone, a finding could be made that any future offending might be less serious than what he has done in the past. However, that, to my mind, is a fallacy. This is because, with the constant superimposition of the adverse effects of alcohol, the most serious and catastrophic harm can result from even the most mundane offending, such as, for example, exceeding the speed limit by the smallest possible kilometre per hour margin.
I make the same point in this decision as I made in my earlier decision. The Applicant is a repeat offender with a very serious criminal history. As I will expand upon later in these Reasons, I am of the view that his problems with alcohol remain unresolved and untreated. Were he to re-offend in a similar manner – be it behind the wheel of a motor vehicle or in terms of direct physical interference with another person – I consider that he would pose a potentially grave risk to individuals in the Australian community.
I therefore find that the potential consequences flowing from further similar or identical offending by this Applicant would be very serious. Were he to re-offend, I am of the view that its effect on a member or members of the Australian community would be very serious indeed, with potentially catastrophic physical or psychological harm being occasioned to members of the Australian community.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
In sentencing terms, the Applicant’s period of criminal offending in this country runs for approximately eight years. Clearly, the sentencing regime historically imposed upon him has done little or nothing to lower the likelihood of him re-offending. He has been afforded virtually the full ambit of non-custodial deterrent sentencing regimes, ranging from (1) fines, (2) bonds, and (3) wholly suspended sentences. Despite this leniency, the Applicant’s conduct ultimately saw him before sentencing authorities on 26 separate occasions. It is thus difficult to discern any deterrent effect he may have experienced from the sentences imposed upon him over approximately eight years.
If the sentencing process has had no deterrent effect, and does not at all point to a lower risk of recidivism, it is prudent to examine whatever level of rehabilitation (in clinical/psychological terms) the Applicant may be said to have experienced such that this Tribunal can, with any measure of confidence, make a finding that he is at a low risk of re‑offending. I should say from the outset that the evidence does not bode well in this respect. I have divided the material into the following categories and will examine each category in turn.
The Applicant’s SFIC at the previous hearing
Broadly stated, the principle contention on behalf of the Applicant at the previous hearing was that his “…previous offending was completely related to an alcohol dependency and being in the presence of friends he no longer associated with.” It was pressed on the Tribunal (at the earlier hearing) that it should be accepted that the Applicant will no longer return to any bad friends and that his apparent abstention from alcohol while in criminal custody/immigration detention is, in and of itself, sufficiently reliable evidence to demonstrate his rehabilitation from abusing that substance.
It was also contended that confidence could be gleaned from the Applicant’s stated “future ambitions and goals” on the basis that he had “indicated that he wishes to work again.” Neither in the previous hearing nor in the instant one was there any evidence from any employer or course provider that the Applicant would either (1) return to reliable remunerative employment and/or commence or resume/complete any training course or courses. Another basis of this contention was that the Applicant “has somewhere to go” if released.[40] As will be seen from the following summary of his cross-examination on this issue, he was not at all certain where he would reside were he returned to the Australian community.
[40] Exhibit 1, Applicant’s SFIC, page 3, paragraph [17].
At the earlier hearing, it was also pressed on the Tribunal that it should be satisfied about the Applicant’s low risk of recidivism because of his “behaviour in prison/immigration detention and staying clean.”[41] The contention proceeded on the basis that the Applicant was at a low risk of re-offending because of there being no evidence of him offending or transgressing while in criminal custody or immigration detention. Allied to this contention was a suggestion that the Applicant had always been released on parole “on time” and that this was suggestive of his prison behaviour being satisfactory. The fatal difficulty with that contention is that the aspect of “staying clean” and away from alcohol and thus not offending has only been “tested” in the relatively closed confines of criminal custody and immigration detention. It has never been tested (since November 2014) in the broader community.
[41] Ibid.
A further basis for this contention at the earlier hearing was said to be found in the Applicant’s lengthy period of time away from the Australian community such that now he “…seems to appreciate the gravity of his offending and sees the experience as [sic] ‘wake up call’”.[42] It was urged on the Tribunal that the Applicant’s admission of his past problems with alcohol somehow constituted “…a significant step in his rehabilitation.”[43] I reject that contention on the basis that there is minimal or no support for it from any clinical or other independent/expert medical evidence.
Other written submissions from the Applicant at the previous hearing
[42] Ibid.
[43] Ibid.
The Applicant acknowledged that:
“Alcohol has been a major problem for me between 2005-2013 where I have received multiple drink driving offences and has affected me in the areas of employment, finance, accommodation and my self-esteem. Not only is alcohol damaging my health and decision-making skills, I am endangering people’s lives when driving under the influence of alcohol…I take full responsibility and ownership of my behaviour and I justly deserve the prison sentence I incurred.”[44]
[44] Exhibit 3, s37 T-Documents, T2, page 87.
He also contended in these written submissions that:
“It is very important for me to undertake professional help to address my alcohol addiction if I am to remain in Australia. I have made contact with an agency in Brisbane, Queensland called “drug arm” where they offer one on one counselling for drug and alcohol addicts and have drug and alcohol programs which run on a regular basis…I will also attend Alcohol Anonymous meetings on a weekly basis and complete the twelve steps program and eventually gain a sponsor who can help me with support and motivation in remaining abstinent from alcohol use.”[45]
[45] Ibid, page 88.
The difficulty with this contention is that despite the fact that it was made in support of a hearing that took place in the early part of 2017, the Applicant’s level of rehabilitation has barely, if at all, met the thresholds he set for himself in this earlier written evidence.
The Applicant’s written submissions for the instant hearing
As outlined earlier, the Applicant says he has “…taken steps to recondition myself and find better things to introduce into my life in order to never find myself going down the road which has led me finding myself in the circumstances I’m in at present.” He speaks of having “…taken on many programs and courses to insure [sic] that I don’t do anything that I have done in the past.”
Importantly, for the purposes of recidivism, he says:
“I have connected with external programs and I have been accepted to join them in the instance that I have my cancellation revoked. I would take on these programs in order to maintain a healthy state of mind so it would allow me to progress in a positive direction.
The major step I’ve taken is to relocate where I reside, taking this step takes me away from any past influences that have led me astray in the past. Therefore I have gained confidence in not reoffending again.”[46]
[46] Exhibit 13, Submission by Applicant.
As will be seen from his cross-examination, the Applicant’s asserted “connection” with external programs is sparse and incomplete. It is difficult to glean any measure of confidence from the Applicant’s assertion that “I would take on these programs…” in circumstances where it is now pressed on the Tribunal to consider him at a low risk of re‑offending. One would have expected such treatment and other programs to have been well and truly undertaken, if not completed, by now. One would also expect that confirmatory evidence in this regard would be forthcoming from an independent clinician to demonstrate the Applicant’s symptomatology in relation to alcohol had been (1) diagnosed, (2) was the subject of remedial treatment, management and control, such that (3) the role previously played by alcohol in the Applicant’s commission of very serious offences could now be said to have been minimised.
Cross-examination of the Applicant (at the instant hearing)
The Applicant was taken to page 58 of the T-Documents and to an incident that arose on 21 November 2014 at a suburban pub in Brisbane. This incident involved the suspension of the Applicant’s parole as a result of him having consumed a large amount of alcohol the night before and that he reported conflict with another male, stating he “wanted to fight someone.”[47] The relevant page in the T-Documents also records that the suspension of the Applicant’s parole “…occurred with consideration to a number of occasions in the past that [the Applicant] had acted contrary to this instruction and his lack of engagement with treatment providers.” [48] [My emphasis and underlining]:
[47]    Exhibit 3, s37 T-Documents, T2, page 58.
[48]    Ibid.
“MS FENNELL: So, Mr Applicant, could I ask you to turn the page to page 58?
APPLICANT: Yes.
MS FENNELL: So this is an email and it relates to – I believe it relates to when your parole was suspended and that was something you were speaking about before. So it says that you provided a positive breath test contrary to a lawful instruction, is that correct?
APPLICANT: Yes, at Stones Corner. Yes.
MS FENNELL: And is it also correct that just a little bit further down it says that you reported conflict with another male and stated that you wanted to fight someone?
APPLICANT: Yes, it’s true. (Indistinct) I was out of control but it’s still wrong for what I did, yes. I agree with that, yes.
MS FENNELL: Thank you?
APPLICANT: Yes, yes.
MS FENNELL: And at the end of the paragraph it says that you had not engaged with treatment providers, is that correct?
APPLICANT: Yes.
MS FENNELL: So to summarise while you were on parole you did not engage with treatment providers to address your problems with alcohol, would you agree with that?
APPLICANT: Yes, yes.
MS FENNELL: Thank you?
APPLICANT: You’re welcome.”[49]
[My underlining]
[49]    Transcript, 12 August 2019, page 12, lines 37-47, and page 13, lines 1-11.
The Applicant was then questioned about his acknowledgement that the abuse of alcohol has been at the core of the majority of his offending. He was also asked about any remedial or other steps he may have undertaken in this regard. This is what transpired in cross-examination:
“MS FENNELL: So, Mr Applicant, is it correct that you’ve said that the majority of your offending – sorry, I’ll repeat myself. Is it correct that you’ve said that the majority of your offending relates to your alcohol addiction?
APPLICANT: Yes, your Honour, yes.
MS FENNELL: And in your statement you’ve said that you’ve taken steps to recondition yourself?
APPLICANT: Yes.
MS FENNELL: Can you tell us what steps you have taken?
APPLICANT: By promising my family and (indistinct). Can you repeat the question, please?
MS FENNELL: Yes?
APPLICANT: Can you explain to me?
MS FENNELL: So you’ve said that you’ve taken steps to rehabilitate yourself?
APPLICANT: Yes.
MS FENNELL: Can you tell us what type of steps or programs you have done?
APPLICANT: Yes, I’ve done Life Positive and I’ve done what do you call that drug and alcohol (indistinct) for the 12 weeks. And I regret for what I did in the past. And I don’t think – I believe myself I’m not alcoholic anymore. I have never put my family for what I’ve been through and I never – sorry. I never ever go back to what I used to do in the past and I complete myself, I’m not doing drinking driving anymore. And not to be danger to Australian society and I apologise for what I did in the past and I do regret. And I believe myself.”[50]
[50] Ibid, page 14, lines 39-45, and page 15, lines 1-15.
The material makes reference to a certificate of completion to the effect that the Applicant “has successfully completed the Holyoake Men’s Group Program on 25 June 2018.”[51] This was a program provided by the Wheatbelt Community Drug & Alcohol Services. He was cross-examined about this program:
“MS FENNELL: Thank you, Mr Applicant. You provided a certificate of completion for the Holyoake Men’s Group Program. Can you tell us what that entailed? What that program helped you with?
APPLICANT: Yes, it helped with some people separated from family because of alcohol, danger to society, being in prison and taking the wrong people and (indistinct). And then to (indistinct alcohol. I really loved the course and I’m not (indistinct) with me but I really learn a lot from it, your Honour, yes.
MS FENNELL: So, Mr Applicant, if you are released from detention and allowed to stay in Australia do you think you will drink alcohol again?
APPLICANT: I will never. Never ever. I’m not driving a car (indistinct), I’ll never drink again, yes. I believe myself I don’t like the taste of it for many years, four years and a half I don’t drink it and I look to myself I change, yes. And to be in detention for four years and a half already (indistinct) I regret that I never learn from it and (indistinct) for good reason, yes, because I know friend I used to hang around with they do the same for what I did in the past and they died, they passed away, yes, because of that.
MS FENNELL: Sorry, Mr Applicant - - ?
APPLICANT: (Indistinct) detention has saved my life, yes.”[52]
[51] See Exhibit 12.
[52] Ibid, page 15, lines 17-35.

Second, the Applicant speaks of “my father and my cousins” apparently having been killed. He makes no mention of his brother having been killed in Sudan or elsewhere. His sister (Witness NY) says that “…my father has passed away, so has my older brother.” When pressed about why she thinks her brother (i.e. the Applicant) will be killed if removed to Sudan, Witness NY’s evidence goes no higher than saying “I have a cousin whose gone through the process…So, yes, I would not like to see my brother going through the same process.” When pressed about how she knew about this “cousin” who had gone through the same process, the highest her evidence went was for her to say “he was taken back to the military base, from stories I heard.” Further, Witness NY said “Well, I don’t know exactly the process he went through, whether he went to a military base or not, but we heard that he got killed.”
Third, the Applicant’s evidence does not rise to even hearing about a specific person’s death in Sudan. He makes the bald assertion that “all my close relatives are not there anymore because they were killed. There are many chances that I will be killed also.”
Fourth, the Applicant’s second sister, Witness MY, made no mention of the risk of any physical harm being occasioned to the Applicant either in her written evidence or her oral evidence to this Tribunal. Nor did she say anything more broadly about anyone experiencing harm in Sudan.
Fifth, the Applicant’s mother said that she lost her husband in the Sudanese Civil War in 1995 and that she lost her eldest son in 1999, “…just because they were members of the Nuba tribe.” She spoke of contemporary “…fighting and attacks. People are dying of daily aerial bombardment and hunger among other things. Tens of thousands are killed and hundreds of thousands are forced from their homes, I fear that if [the Applicant] is deported he’s going to face the same fate as his father and brother.” She apparently knew about this state of affairs because she “…heard these things through the news, news tv, or through the video…also, some people calling her from Sudan.” She provided no detail about those media extracts from which she obtained this knowledge, nor any detail about which people apparently called her from Sudan and told her what she now purports to know.
I have had regard to the totality of the Applicant’s evidence and that of his two sisters and his mother. I am not satisfied that the Applicant has expressed any well-based or properly articulated fear(s) of harm resulting from his return to Sudan arising from (1) his being drafted into the army; (2) persecution as a returnee as a member of a given tribal denomination; and (3) persecution on the basis that other family members have apparently been killed or harmed.
In the alternative, if I were to accept that the Applicant belongs to the Nuba Tribe, it should be acknowledged that there is some measure of independent evidence in the material that the Applicant may possibly face discrimination and/or violence upon return to Sudan as a result of his membership of the Nuba Tribe. The Department of Foreign Affairs and Trade has produced a Country Information Report.[111] It dates from 27 April 2016 and contains the following commentary about the risk of persecution/discrimination/violence the Applicant may face as a member of the Nuba Tribe:
“3.4 Minority Rights Group International ranks Sudan third on its 2015 Peoples Under Threat Ranking, identifying the Fur, Zaghawa, Massalit and others in Darfur, along with the Ngok Dinka, Nuba and Beja, as the most at risk ethnic groups in Sudan. Based on discussions with in-country contacts, DFAT assesses that this is broadly accurate and that non-Arab ethnic groups including the Fur, Zaghawa and Massalit from Darfur and Nuba from South Kordofan face the greatest risk of being deliberately persecuted or discriminated against on the basis of their ethnicity, as detailed below.
…
3.10 Nuba is a term used to describe over 50 ethnic groups that inhabit the Nuba Mountains in South Kordofan and Blue Nile and number an estimated 3.7 million people. The Nuba have traditionally clashed with the pastoralist Arab ethnic group, the Baggara. In the mid-1980s, clashes intensified and became increasingly political with the Government supporting the Baggara-linked militia, the Murahaliin. In the early 1990s, the Government intensified its efforts to limit the authority of the Nuba, including through forcibly converting some of the Christian population to Islam. The prominence of Christianity in the Nuba Mountains has added another layer of complexity given the religious divide between the mainly Islamic Sudan and mainly Christian South Sudan. Despite commitments in the CPA, the Nuba population has not been provided with an opportunity to decide whether they identify as being from Sudan or South Sudan and conflict between the Government and SPLM-North has continued to intensify.”[112]
Findings and Allocation of Weight to Other Consideration (a)
[111] Note: on 12 March 2020, I listed this matter for a telephone directions hearing to invite both oral and written submissions on the impacts of the Full Court’s decision in Omar. This is because the decision in Omar post-dated the date of hearing of this matter. There followed written submissions from the Respondent’s representatives. Those written submissions attached the subject Department of Foreign Affairs and Trade Country Information Report. Both the Respondent’s submissions and attached report have been captured and marked “Exhibit 22” in the instant proceeding.
[112] See Exhibit 22.
In circumstances where (1) the Applicant makes no reference to belonging to the Nuba (or any other) tribe, (2) this particular representation was actually made by his sister (Witness NY), and (3) the evidence does not refer to any properly detailed claim in relation to the harm the Applicant may face if returned to Sudan, it is very difficult to find that this particular claim of the Applicant rises to the threshold of a “clearly articulated and substantial or significant representation of risk of harm.”[113] Accordingly, I do not consider that any of the Applicant’s contentions engage any non-refoulement obligations this country may otherwise owe him.
[113] Omar, at paragraph [39].
Consequently, I am not satisfied that the Applicant is a person in respect of whom Australia has non-refoulement obligations. To the extent that this Other Consideration (a) may weigh in favour of revocation, it is of minimal weight only. It is determinatively outweighed by the weight I have attributed to the Primary Considerations A and C, and that I may attribute to the relevant Other Considerations.
(b) Strength, nature and duration of ties
The following contentions are made on behalf of the Applicant in his SFIC (which dates from 30 October 2016):
“25. It is submitted that considerable weight be given to [the Applicant]’s ties to Australia.
26. [The Applicant] has been in Australia from the age of 22. He is now 34 years old. He has lived in Australia for a significant part of his life and practically all of his adult life. He sees his future as being in Australia.
27. Most of [the Applicant’s] immediate family live in the United States.”[114]
[114] Exhibit 1, Applicant’s SFIC, page 5.
In cross-examination, the Applicant was asked questions about his family. He provided the following answers:
“MS FENNELL: Thank you. Mr Applicant, I would like to ask you some questions about your family?
APPLICANT: Yes.
MS FENNELL: I understand that they all live overseas, is that correct?
APPLICANT: Yes.
MS FENNELL: And where do they live now?
APPLICANT: My family?
MS FENNELL: Yes?
APPLICANT: I have two sister, is stuck in Egypt with husband and kids because they can’t stay in Sudan any more, they are waiting to go to US, but that – the policy is going slow and they just stayed there but they can’t go back to the country and the rest of the family is still in USA, yes. I have a sister in Iowa with husband and kids and I have my mum and my other two sisters, they are in Washington state, yes.
MS FENNELL: Thank you?
APPLICANT: That’s all, yes.
MS FENNELL: So your family that lives in Egypt, are they allowed to work in Egypt?
APPLICANT: That’s my two sisters.
MS FENNELL: Your two sisters?
APPLICANT: Yes.
MS FENNELL: And their husbands. Can they work in Egypt?
APPLICANT: The both sisters, yes, they working there, yes. There is no (indistinct) there, yes. They just have to stay there and pay to rent and it’s really – it’s really hard for them, yes.”[115]
[115] Transcript, 12 August 2019, page 18, lines 42-47, and page 19, lines 1-18.
In terms of a contention about weight allocated to this Other Consideration (b), the Respondent says:
“78…in circumstances where [the Applicant] began offending shortly after his arrival and has continued to regularly commit offences throughout his time in Australia, the Minister contends that this consideration, at its highest, only slightly favours a decision to revoke the cancellation of [the Applicant’s] visa. Further, the Minister contends that this consideration is heavily outweighed by the primary considerations.”[116]
[116] Exhibit 15, Respondent’s SFIC, pages 17.
The Applicant was born in Sudan and is presently 38 years of age. He came to Australia on 22 June 2004 at the age of 22 and has never left here. Thus, he has spent roughly 42% of his life in Australia. Of the approximately 16 years he has spent in Australia, he has been in criminal custody and/or immigration detention on a continuous basis for a period of almost six years – since November 2014.
I accept the Applicant has spent a significant period of time in Australia. His offending first came before lawful authority for sentencing in March 2006 as a 24 year old. This is less than two years after his arrival in Australia. Having regard to paragraph 14.2(1)(a)(i) of the Direction, I find that the Applicant’s offending commenced soon after his arrival in Australia. Accordingly, any weight attributable to this Other Consideration (b) should be thereby reduced as a consequence of the adverse application of paragraph 14.2(1)(a)(i) of the Direction.
There is some evidence that the Applicant has made meaningful and positive contributions to the Australian community via his employment history. As mentioned earlier, the material discloses that he has maintained remunerative employment in Australia in various occupations, ranging from concreting, work as a farm hand, work as a meat slaughterman and as a metal welder. There is little evidence of any positive future employment prospects for the Applicant. The evidence points to, at best, the allocation of a moderate level of weight in his favour pursuant to paragraph 14.2(1)(a)(ii) of the Direction.
However, the evidence does not assist him in terms of any weight that is allocatable to him pursuant to paragraph 14.2(1)(b) of the Direction. As he said in cross‑examination, he accepted that, in terms of his family, “…they all live overseas…” I am not certain about the accuracy of that statement, because he has one immediate family member in Australia – his abovementioned biological minor daughter, Child A. I have earlier recounted the minimal, if any, parental role he has played in the life of Child A and the similar level of any such role he can be reasonably expected to play in her life until she attains the age of majority.
While one would expect his relationship with Child A to be more significant and established, the evidence only points to a finding that the Applicant does not have family ties of any strength and durability with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia. Neither his oral or written evidence speaks to any current and ongoing level of strong ties with Child A. It is reasonable to make the inference that any future parental relationship between the Applicant and Child A would most likely materialise by way of a court-ordered outcome. As the evidence made plain, the Applicant is yet to retain legal advice for any such proceeding.
I am of the view that the strength, duration and nature of the Applicant’s family/social links with the only member of his immediate or extended family in Australia is such as to facilitate the allocation of only the very slightest level of weight in his favour for this Other Consideration (b) pursuant to paragraph 14.2(1)(b) of the Direction.
(c) Impact on Australian business interests
There is no evidence before the Tribunal that cancellation of the Applicant’s visa would have an impact on Australian business interests. This consideration is not relevant to determination of this application.
(d) Impact on victims
The Respondent has not called any evidence relating to the impact that the Applicant’s continued presence in Australia would have on any of his victims.
In the absence of such evidence, be it in the form of a victim impact statement or otherwise, it would be irresponsible for me to enter the realm of mere conjecture and guess as to the impact that the Applicant’s continued presence in Australia would have on any of his victims. It would be unsafe to find that this factor attracts any weight either in favour of, or against, the cancellation of the Applicant’s visa and it is thus neutral.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account any impediments that a non-citizen may face if removed to their country of origin and if required to re-establish themselves in that country. Relevant factors to be taken into account include:
(a)The non-citizen’s age and health;
(b)Whether there are any substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to that non-citizen in that country.
The Applicant contends that:
“30…removal to his home country (Sudan) would cause extreme distress because:
(a)He has no support network overseas – all of his immediate family and extended family are in the United States. He also has no obvious or apparent right of abode in the United States.
(b)Hardship would be caused to [the Applicant]. [The Applicant] has never completed any recognised schooling in any country and is at a significant disadvantage to other members of the community.
(c)He would face the very real prospect of death, homelessness and destitution in South Sudan…”[117]
[117] Exhibit 1, Applicant’s SFIC, page 6.
In his Personal Details Form, the Applicant records the following under the heading “Health Information”:
“Do you have any diagnosed medical or psychological conditions?
(The Applicant ticked the ‘yes’ box)
If yes, please provide details of the condition/s and explain what treatment you are receiving (e.g. if you are on any prescription medication or you are receiving counselling. Also, please show below the name of any medications and what conditions they were prescribed for.)
I was diagnosed with depression by my doctor. This problem was seen as I was going through emotional experienced precipitated by traumatic experience with the law, effects of imprisonment, loss of independence and family and friends isolation. I went for psychological, drug and alcohol counselling.

Name of medication

Condition prescribed for

30mg at night Mirtazapine

Depression (low mood) and to help sleep

1g Paracetamol PRN

For on and off headaches

If you are currently being treated by any doctor/health professional/counsellor, please provide their name/s and contact details.

Name of doctor

Type (eg – doctor, physiotherapist)

Address/phone number/email address, if known

Dr John F Quinn

Doctor

Annerley Medical Centre…

…”[118]
[118] Exhibit 3, s37 T-Documents, T2, page 69.

There is also some reference to the Applicant exhibiting certain symptoms of a liver infection and chronic low back pain.[119]
[119] Ibid, page 79.
It should be acknowledged that the level of mental health and general health facilities in Sudan will most probably not be similar to those facilities the Applicant has experienced in Australia. While the Applicant contends that he has these conditions, much of his work experience in this country has involved him performing manual labouring or manual-type roles, and it would not appear that the claimed conditions have impacted upon his capacity to do those tasks while he has been in the Australian community.[120]
[120] Section 14.5(1)(a) of the Direction.
Be that as it may, regard must be had to the ambit of paragraph 14.5(1) of the Direction, which stipulates that the extent of any impediments to be confronted by the Applicant if removed from Australia – in terms of establishing himself and maintaining basic living standards – is to be considered in the context of what is generally available to other citizens of that country. While it should be acknowledged that he will most likely find limited such facilities in Sudan, it does not necessarily follow that Sudan is entirely devoid of such facilities. He would be entitled to the same access to those facilities in the same manner and to the same extent as they are available to other Sudanese citizens. More generally, he will also have access to the same level of governmental/social support to the same extent as that which is available to other citizens of Sudan.[121]
[121] Section 14.5(1)(c) of the Direction.
The Applicant resided in Sudan for at least the first 15-20 years of his life. It can be fairly said that there are no significant or substantial language or other cultural barriers to the Applicant’s return and re-establishment in Sudan.[122] To the extent he may face some difficulty in re-establishing himself in Sudan, this would only present as a relatively short-term hardship and would not preclude his successful re-settlement there.
[122] Section 14.5(1)(b) of the Direction.
It is also notable that the Applicant has a relatively strong employment history in Australia with specific and demonstrated skills in concreting, working as a farm hand, working as a meat slaughterman and as a metal worker. There is little evidence in the material to cavil with a contention that the Applicant will be able to deploy the work experience he has garnered in Australia to re-establish himself in Sudan. While he may face impediments upon a return to Sudan, it could not be reasonably expected that those impediments would be insurmountable. The Respondent accepts that this Other Consideration (e) weighs in favour of revocation. I agree with that position, but am of the further view that it does not outweigh the weight I have allocated to Primary Considerations A and C, both of which favour non-revocation.
Having regard to the totality of the evidence, I am thus of the view that this Other Consideration (e) weighs moderately in favour of the Applicant with reference to determination of this application.
Findings: Other Considerations
With reference to these Other Considerations, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C which, when combined, are of determinative weight in favour of non-revocation. The application of the Other Considerations in the present matter can be summarised as follows:
·International non-refoulement obligations: minimal weight in favour of revocation;
·Strength nature and duration of ties: weighs very slightly in favour of revocation;
·Impact on Australian business interests: not relevant;
·Impact on victims: of neutral weight; and
·Extent of impediments if removed: weighs moderately in favour of revocation.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration A weighs very heavily in favour of non-revocation;
·Primary Consideration C weighs heavily in favour of non-revocation;
·The combined weight of Primary Considerations A and C is of determinative weight in favour of non-revocation;
·Primary Consideration B is of very minimal weight in favour of revocation; and
·I have outlined the weight attributable to the Other Considerations (a), (b) and (e). I do not consider that any of those three Other Considerations, even when combined with each other and/or Primary Consideration B, outweigh the combined and determinative weight I have attributed to Primary Considerations A and C.

A holistic view of the considerations in the Direction, therefore, favours the non‑revocation of the cancellation of the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 227 (two hundred and twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

............................[SGD]...........................................
Associate
Dated: 7 August 2020

Date of hearing:
12 August 2019

Applicant:
By video

Solicitor for the Respondent: Ms G Fennell, Lawyer
Clayton Utz
ATTACHMENT A - EXHIBIT REGISTER
Bundle 1 – Exhibits from previous Tribunal proceedings (2016/4209):

EXHIBIT:

DESCRIPTION OF EVIDENCE

DATE

1

Applicant’s SFIC

30/10/2016

2

Respondent’s SFIC

18/11/2016

3

Section 37 T-Documents

Various

4

Support letter – Sudanese Community

20/01/2017

5

Support letter – “KM”

13/01/2017

6

Brochure about drink driving (Rec’d by Tribunal on)

18/11/2016

7

Humanitarian Needs Overview – South Sudan

Various

8

Certificate of Appreciation (Immig Det “Incentives Program”)

22/12/2016

9

Certificate of Attendance (Understanding Good Health)

March 2016

Bundle 2 – Exhibits from remittal hearing conducted on 12 August 2019:

EXHIBIT:

DESCRIPTION OF EVIDENCE

DATE

10

Decision of SM T Tavoularis

08/06/2017

11

Order for Remittal: Justice Bromberg

18/01/2018

12

Certificate of Completion (Holyoake Men’s Group Program)

25/06/2018

13

Submission by Applicant

20/09/2018

14

Letter of Support – “HA”

18/09/2018

15

Respondent’s SFIC

22/10/2018

16

Report from ASETTS – Counselling – Ms Bonnie Beazley

29/10/2018

17

Letter of Support - “HD”

31/10/2018

18

Letter of Support – “MA”

10/05/2019

19

Letter of Support – “NY”

09/05/2019

20

Letter of Support – “YA”

12/05/2019

21

Letter of Support – “MY”

07/05/2019

22

Emailed Submissions: Respondent - regarding Full Court decision in Minister for Home Affairs v Omar [2019] FCAFC 188

(With Annexed DFAT Country Information Report dated 27/4/16)

14 April 2020

*Name of medication*	*Condition prescribed for*
30mg at night Mirtazapine	Depression (low mood) and to help sleep
1g Paracetamol PRN	For on and off headaches

*Name of doctor*	*Type (eg – doctor, physiotherapist)*	*Address/phone number/email address, if known*
Dr John F Quinn	Doctor	Annerley Medical Centre…

Date of hearing:	12 August 2019
Applicant:	By video
Solicitor for the Respondent:	Ms G Fennell, Lawyer Clayton Utz

EXHIBIT:	DESCRIPTION OF EVIDENCE	DATE
1	Applicant’s SFIC	30/10/2016
2	Respondent’s SFIC	18/11/2016
3	Section 37 T-Documents	Various
4	Support letter – Sudanese Community	20/01/2017
5	Support letter – “KM”	13/01/2017
6	Brochure about drink driving (Rec’d by Tribunal on)	18/11/2016
7	Humanitarian Needs Overview – South Sudan	Various
8	Certificate of Appreciation (Immig Det “Incentives Program”)	22/12/2016
9	Certificate of Attendance (Understanding Good Health)	March 2016