QSBL and Minister for Home Affairs (Migration) - [2018] AATA 2074

QSBL and Minister for Home Affairs (Migration) [2018] AATA 2074 (2 July 2018)
Division:GENERAL DIVISION
File Number:2018/1996
Re:QSBL
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans
Date:2 July 2018
Place:Perth

The Reviewable Decision, being the decision of a delegate of the Respondent dated 6 April 2018 not to revoke the mandatory cancellation of the Applicant’s visa pursuant to
s 501CA(4) of the Migration Act 1958 (Cth), is affirmed.
...................[sgd]....................................................
Senior Member Dr M Evans
CATCHWORDS
Migration – decision not to revoke mandatory cancellation of visa – two-day rule – character test – substantial criminal record – Ministerial Direction no. 65 – primary and other considerations – international non-refoulement obligations – protection of the Australian community – best interests of minor children – step-children – expectations of the Australian community – nature and seriousness of criminal offending – risk of engaging in future criminal conduct – strength, nature and duration of ties to Australia – extent of impediments if returned to Sudan – mental health – decision under review affirmed
LEGISLATION
Migration Act 1958(Cth) – s 195A, s 499, s 499(1), s 499(2A), s 500, s 500(1)(ba),
s 500(6B), 500(6H), s 500(6J), s 500(6L), s 501, s 501(1), s501(3A), s 501(6), s 501(7),
s 501(7A), s 501CA, s 501CA(3), s 501CA(4), s 501E(2), s 501G(1)
Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (No. 2) (Cth)
CASES
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513; FCAFC 83
BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456; FCAFC 96
Do and Minister for Immigration and Border Protection [2016] AATA 390
Goldie v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378
HSKJ and Minister for Immigration and Border Protection [2017] AATA 1802
Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
XFKR and Minister for Immigration and Border Protection [2017] AATA 2385
SECONDARY MATERIALS
Direction No. 65 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA – paras 6.1, 6.2, 6.3, 7, 8, 13, 14, Part C
REASONS FOR DECISION
Senior Member Dr M Evans
2 July 2018
BACKGROUND

The Applicant is a 36 year old man who is a citizen of Sudan. He left Sudan when he was 13 years of age due to war.
He arrived in Australia in 1998 as a 17 year old (Exhibit R1) (G4, page 15). He was granted a Class BA Subclass 202 – Global Special Humanitarian visa (Visa) on 16 May 1998.
The Applicant was recently in a relationship with a woman who is an Australian citizen. However, the relationship ended when the Applicant commenced a term of imprisonment in January 2017 for domestic violence offences against her. She has two minor children.
The Applicant first offended in 2004. His first offences were “breach of bail granted conditions”; and “assault public officer” and “resist arrest” for which he appeared in the Perth Court of Petty Sessions on 3 May 2004 and 30 August 2004, respectively (Exhibit R1) (G6, page 27-28).
In total, the Applicant has committed 27 offences over a 13 year period (Exhibit R1) (G6, page 26-28). The nature and escalation in seriousness of the Applicant’s offending is discussed in more detail below.
On 24 September 2013, the Department of Immigration and Border Protection notified the Applicant that his visa may be liable for cancellation under s 501 of the Migration Act 1958(Cth) (Migration Act) on character grounds (Exhibit R1) (G23, page 91).
In a letter dated 29 January 2014, the Department of Immigration and Border Protection advised the Applicant that a delegate of the Minister had made a decision not to cancel his visa on character grounds (Exhibit R1) (G23, page 87). Further, in this letter the Applicant was given the following formal warning:
Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in the future. Disregard of this warning will weigh heavily against you if your case is reconsidered (Exhibit R1) (G23, page 87).
The Applicant signed, on 31 January 2014, the following acknowledgment of receipt of the decision of 29 January 2014 which states:
I…acknowledge that I have received the Notice of decision not to cancel a visa under subsection 501(2) of the Migration Act 1958. I understand that I can again be considered for refusal or cancellation of any visa granted to me if further information of relevance comes to the attention of the Department at any time in the future and that if this happens, my past conduct and previous relevant information can also be reconsidered (Exhibit R1) (G23, page 90).
(Original emphasis.)
On 15 February 2017, the Applicant’s Visa was cancelled on the basis that he did not pass the character test under s 501(3A) of the Migration Act (Exhibit R1) (G25, page 105). This was because the Applicant had a “substantial criminal record” within the meaning of

s 501(6)(a) of the Migration Act (on the basis of s 501(7)(c) of the Migration Act) because he had been sentenced by the Perth Magistrate’s Court on 20 August 2010 to a suspended term of imprisonment of 12 months for “unlawfully assaulted with circumstances of aggravation” (Exhibit R1) (G25, page 105).
The letter from the Department of Immigration and Border Protection dated 15 February 2017, which advised the Applicant of his visa cancellation, also generally noted the sentencing remarks of the Magistrate but did not elaborate on what those remarks were (Exhibit R1) (G25, page 106). Additionally, the letter noted that the Applicant was convicted on 9 January 2017 and was currently serving a full-time custodial sentence of imprisonment of six months, for the offences of “being armed or pretending to be armed in a way that may cause fear” and “unlawfully assault and thereby did bodily harm with circumstances of aggravation” (Exhibit R1) (G25, page 106). These were domestic violence offences against his former partner.
The Applicant was invited to make representations, which he did on 3 March 2017 (Exhibit R1) (G4, page 14). These were summarised by the delegate as follows:
·[the Applicant] has resided in Australia since 1998, when he was 17 years old;
·[the Applicant] left Sudan when he was 13 years of age due to the war;
·[the Applicant’s] brothers and sisters are in Australia;
·[the Applicant] was diagnosed with mental illness in 2001, which he states sometimes makes it hard for him to cope;
·[the Applicant] is in a relationship with an Australian citizen and has two minor … [step-children] … through the relationship, who regard him as a father and whose best interests would be at risk if the cancellation is not revoked (Exhibit R1) (G4, page 15).
After considering these representations, on 6 April 2018 a delegate of the Respondent decided not to revoke the mandatory cancellation of the Applicant’s visa pursuant to

s 501CA(4) of the Migration Act (the Reviewable Decision) (Exhibit R1) (G3, page 13).
The Reviewable Decision was communicated to the Applicant in a letter from the Department of Home Affairs dated 10 April 2018 which was hand-delivered to the Applicant, in immigration detention, on the same date (Exhibit R1) (G2, page 10).
On 16 April 2018, the Applicant lodged an application for review of the Reviewable Decision in the General Division of the Administrative Appeals Tribunal (the Tribunal) (Exhibit R1) (G1, page 1).
ISSUES
The issues for determination by this Tribunal are whether:
(a)the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the mandatory cancellation decision (that is, the Reviewable Decision) should be revoked (see s 501CA(4) of the Migration Act), having regard to the primary and other considerations in Ministerial Direction no. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction No. 65).
JURISDICTION
This application is made pursuant to s 500(1)(ba) of the Migration Act. This section allows applications to be made to the Tribunal for review of decisions of a delegate of the Respondent not to revoke a decision to cancel a visa.
The Reviewable Decision of 6 April 2018 was communicated to the Applicant on 10 April 2018, and as noted above, he lodged his application for review on 16 April 2018. The Applicant is in immigration detention, and is in the migration zone. He therefore lodged his application for review by the Tribunal within the nine day period after he received the decision in accordance with s 501G(1) and s 500(6B) of the Migration Act.
The Tribunal is therefore satisfied that the application was lodged within time, and that the Tribunal has jurisdiction to review the Reviewable Decision.
MATERIAL BEFORE THE TRIBUNAL
The application was heard by the Tribunal on 21 June 2018. The Applicant appeared by video link from the detention centre. He was self-represented. The Applicant spoke English well and did not require an interpreter.
The Respondent was represented by Mr Arran Gerrard from the Australian Government Solicitor who appeared in person. The Applicant, as well as his former partner, gave evidence and was cross-examined.
The Tribunal had the following documents before it:
(a)handwritten statement from the Applicant, undated, but filed with the Tribunal on 11 June 2018 (Exhibit A1);
(b)handwritten statement from the Applicant’s former partner dated 18 June 2018 (Exhibit A2);
(c)the s 501 documents (G documents) from G1 to G28 (Exhibit R1);
(d)the Supplementary s 501 documents (Supplementary G Documents) from SG1 to SG28 (Exhibit R2); and
(e)the Statement of Facts, Issues and Contentions of the Respondent dated 15 May 2018 (Exhibit R3).
Directions were made by the Tribunal on 27 April 2018, which included a direction that the Applicant file a Statement of Facts, Issues and Contentions and any further evidence on which he proposed to rely at the hearing, and serve a copy on the Respondent, by 1 June 2018. However, no Statement of Facts, Issues and Contentions, nor any evidence, was submitted by the Applicant by that date. The hearing of this matter was originally listed for Friday, 15 June 2018.
A Tribunal Officer telephoned the Applicant on 8 June 2018 and advised the Applicant that the Tribunal had not received any documents from him, and that any evidence had to be received by 12 June 2018, otherwise it could not be considered. As a result, the Applicant filed a handwritten statement (Exhibit A1) with the Tribunal on 11 June 2018.
However, the day before the scheduled hearing, on 14 June 2018, the Applicant submitted a handwritten request to the Tribunal asking if his “partner” (although at the hearing it was confirmed that she was his former partner) could give evidence by telephone. The Tribunal vacated the hearing for Friday, 15 June 2018, and re-listed it for Thursday, 21 June 2018 at 10am to allow the Applicant’s former partner to submit a written statement to the Tribunal setting out the evidence she would like to give to the Tribunal. The Tribunal allowed this statement to be filed with the Tribunal and served on the Respondent on or before 4.30pm on Monday 18 June 2018, due to the operation of the “two-day rule”. This rule provides that the Tribunal cannot consider any evidence presented orally unless the information is set out in a written statement given to the Minister at least two business days before the Tribunal hearing (under s 500(6H) of the Migration Act).
The two-day rule was considered by the Full Court of the Federal Court in Goldie v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378 at [25]. The Full Court explained:
The scheme for dealing with applications for review under s 500 of the Migration Act has at its heart subss (6H) and (6J). These subsections impose serious restrictions on an applicant for review. The Tribunal is obliged not to have regard to any information presented orally, or to any documents submitted, in support of the applicant’s case unless the Minister has had two business days’ notice of the information or the document before the hearing. The purpose of these drastic provisions is apparent. The Minister is to be given an opportunity to answer the case to be put by the applicant for review without the necessity of an adjournment of the hearing. The purpose of the scheme in s 500 is that an applicant for review should not be able to change the nature of his or her case, catching the Minister by surprise, and forcing the Tribunal into granting one or more adjournments to enable the Minister to meet the new case put. If this purpose were not sufficiently apparent from the terms of the legislation, it is apparent from the second reading speech in relation to the bill by which the provisions were introduced. That bill became the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (No. 2) (Cth). The expressed intention of the bill was to prevent the use of the procedure of merits review to prolong the stay in Australia of a person denied a visa by the application of the character test. Crucial to the scheme is the 84 day time limit for the whole process, laid down in subs (6L).
The two-day rule does not prevent a matter from being adjourned to ensure that the Tribunal’s “review is conducted thoroughly and fairly” (Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203 at 223 (Uelese)). In the Applicant’s circumstances, the evidence of the Applicant’s former partner is relevant to the Tribunal’s consideration of the Reviewable Decision, including its consideration of the best interests of the children. Consequently, the Tribunal deemed it appropriate to grant the adjournment. The Tribunal received a copy of the Applicant’s former partner’s handwritten statement (Exhibit A2) at 10.23am on 18 June 2018, and immediately forwarded a copy to the Respondent’s legal representative so her oral evidence could be heard at the hearing and considered by the Tribunal.
On the afternoon of 19 June 2018, the Applicant faxed clinical medical records to the Tribunal containing clinical notes and medications administered between 25 July 2017 and 6 June 2018. Copies were sent to the Respondent’s legal representative for comment, who objected to the admission of the documents pursuant to s 500(6J) of the Migration Act.
The Tribunal, applying Goldie, and noting that a decision must be made by 3 July 2018 due to the 84 day limit (otherwise the delegate’s decision will be affirmed under s 500(6L) of the Migration Act), notes that the two-day rule should not be used as a means of “forcing the Tribunal to grant one or more adjournments” (Goldie, at [25]). As noted above, the review must be conducted thoroughly and fairly. However, the Tribunal is of the view that the Applicant is more likely to be prejudiced by the Tribunal being unable to properly consider the matter due to having insufficient time to do so if there is a further adjournment, rather than if a further adjournment was granted so that the new evidence could be considered. Therefore, the Tribunal has not considered the faxed clinical medical records in making its decision. However, the Tribunal has considered other evidence regarding the Applicant’s schizophrenia, including relevant materials in the G documents and the Applicant’s oral evidence at the hearing. The Tribunal further notes that it has been accepted by the Respondent that the Applicant has been diagnosed with schizophrenia.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Migration Act provides that:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(c)
the person has a substantial criminal record (as defined by

subsection (7)…
A “substantial criminal record” is defined by s 501(7) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more…
(Original emphasis.)
Section 501(7A) of the Migration Act provides clarification when a person is sentenced to concurrent sentences of imprisonment:
(7A) 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.
Section 501CA of the Migration Act further provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)     a written notice that sets out the original decision; and
(ii)    particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be revoked.
(Original emphasis.)
MINISTERIAL DIRECTION NO. 65
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that: “A person or body must comply with a direction under subsection (1).”
On 22 December 2014, the Minister for Immigration and Border Protection made a direction under s 499 of the Migration Act, named Direction no. 65. Paragraph 6.1 of Direction no. 65 sets out the Objectives of the Migration Act, with paragraph 6.1(3) being relevant to the Reviewable Decision which is currently before the Tribunal:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

Paragraph 6.2 of Direction no. 65 provides general guidance as follows:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction no. 65 sets out principles which must be taken into account by persons making decisions under s 501CA(4), including the Tribunal:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(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. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(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 should be allowed to come to, or remain permanently in, Australia.
(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 in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Informed by the principles set out in paragraph 6.3 of Direction no. 65, the decision-maker (in this case the Tribunal) must take into account the primary considerations in Part C of Direction no. 65, with regard to the specific circumstances of the case (paragraph 13(1) of Direction no. 65). Specifically, paragraph 13(2) of Direction no. 65 provides:
(2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
(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 14 of Part C of Direction no. 65 lists other considerations as follows:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(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.
Paragraph 7(1)(b) of Direction no. 65 outlines how a decision-maker is to exercise discretion:
(1)Informed by the principles in paragraph 6.3 above, a decision-maker:
(a)…
(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.
Further guidance as to how a decision-maker is to apply the considerations in Direction no. 65 can be found in paragraph 8 of Direction no. 65 which provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that noncitizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?
As noted above, on 20 August 2010, the Applicant was convicted in the Perth Magistrates Court of “unlawfully assaulted with circumstances of aggravation” for which he received a term of 12 months suspended imprisonment (Exhibit R1) (G6, page 26). Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a “substantial criminal record”. Section 501(7)(c) of the Migration Act provides that a person has a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more.
Further, as was noted above, on 9 January 2017, the Applicant was sentenced to a term of custodial imprisonment (Exhibit R1) (G6, page 26). This sentence comprised of six months concurrent for “assault occasioning bodily harm”; two months cumulative for “breach of protective bail granted conditions”; and six months concurrent imprisonment for “being armed in a way that may cause fear” (Exhibit R1) (G6, page 26). According to

s 501(7A) of the Migration Act, each term is to be counted in working out the total, which would amount to 14 months. This would constitute a “substantial criminal record” under

s 501(7)(d) of the Migration Act because the total is more than 12 months.
Consequently, the Applicant does not pass the character test.
IS THE TRIBUNAL SATISFIED THAT THERE IS ANOTHER REASON WHY THE REVIEWABLE DECISION SHOULD BE REVOKED?
First primary consideration: Protection of the Australian Community (13.1)
Paragraph 13.1(1) of Direction no. 65 provides that when decision-makers are considering the protection of the Australia community they:
… should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on noncitizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community…
Decision-makers should also give consideration to the following (paragraph 13.1(2) of Direction no. 65):
(2)Decision-makers should also give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (13.1.1(1))
Section 13.1.1(1) of Direction no. 65 further provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes committed against vulnerable members of the community (such as minors, 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;
(c)The sentence imposed by the courts for a crime or crimes;
(d)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(e)The cumulative effect of repeated offending;
(f)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(g)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);
(h)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
To date, the Applicant has a Court Outcomes History comprising of 27 offences (Exhibit R1) (G6, page 26-28). As noted above, he first started offending in 2004, and his latest conviction was on 9 January 2017 when he was sentenced to a term of custodial imprisonment for “assault occasioning bodily harm”; “breach of protective bail granted conditions”; and “being armed in a way that may cause fear” (Exhibit R1) (G6, page 26-28). As noted above, these were domestic violence offences against the Applicant’s former partner.
The Applicant’s Court Outcomes History shows a range of offending behaviour including domestic violence, breaches of court imposed orders, offences against public officers, driving offences and public nuisance offences as follows:
(a)seven convictions for assault including “assault occasioning bodily harm” (9 January 2017, and 9 March 2006), “unlawfully assaulted with circumstances of aggravation” (20 August 2010); “unlawfully assault and thereby did bodily harm with circumstances of aggravation” (5 March 2010); two convictions for “assault occasioning actual bodily harm” (15 February 2010) and a conviction for “being armed in a way that may cause fear” (9 January 2017);
(b)five breaches of court imposed orders including breaches of bail (20 August 2010) protective bail (9 January 2017), bail undertaking (5 March 2010) and bail conditions (3 May 2004) and contravene prohibition/ restriction in domestic apprehended violence order (15 February 2010);
(c)four convictions relating to public officers including fail to comply with a request to give police personal details (20 August 2010); wilfully mislead police (1 March 2006), fail to comply with request to give personal details (14 February 2005); assault public officer (30 August 2004) and resist arrest (30 August 2004);
(d)seven driving offences including driving under the influence (10 September 2010, 20 September 2007), driving with a suspended licence (5 December 2007, 25 September 2007), and driving without a licence (1 March 2006); and
(e)other offences including disorderly behaviour in a public place (12 January 2007), damage (15 February 2005), and unlawfully remain on premises (3 May 2004).
[The dates listed in this paragraph are court dates listed in the Applicant’s National Police Certificate (Exhibit R1) (G6, page 26-28).]
In considering the nature and seriousness of the Applicant’s criminal conduct to date, the Tribunal notes the Applicant’s convictions for violence (and domestic violence against his two former partners) including assaults, and being armed in a way that may cause fear (13.1.1(1)(a) of Direction no. 65), as well as breaches of court imposed orders and offences against public officers (relevant to 13.1.1(1)(b) of Direction no. 65).
The Tribunal further notes that the Applicant’s offending has escalated in seriousness, as noted by Magistrate Woods when she sentenced the Applicant to a term of custodial imprisonment on 9 January 2017 for domestic violence related offending (Exhibit R1) (G7, page 30). The Statement of Material Facts states, on 4 July 2016, the Applicant and his former partner began arguing about his drinking and further:
…As the victim tried to get up, the accused stood over her and twisted her top around her neck and she had difficulty breathing.
The victim continued to struggle for approximately ten minutes until she managed to kick out at the accused and he released her.
The victim tried to get up off the couch but was stopped when the accused grabbed her by the neck and punched her several times in the face including one direct hit to her left eye.
The victim managed to kick out at the accused again which allowed her to quickly get up off the couch and run out of the room, as she did she noticed the accused run into the kitchen and grab a kitchen knife.
Fearing for her life, the victim ran into the room where the children were asleep and tried to slam the door shut but was stopped by the accused. The door was slightly ajar with the victim trying her best to close it with her foot.
The accused held the knife through the opening of the door and waved it at the victim trying to cut and stab her.
The victim tried to stop the accused by yelling the kids were in the room but the accused continued and said he was going to cut her head off and skin her.
At one stage, the victim pushed the knife away as it came close to her face and her left hand was cut.
After some time, the accused stopped waving the knife and took his arm out from the door opening allowing the victim to slam the door shut where she was able to call for help.
Police arrived shortly after and arrested the accused and conveyed him to Cannington Police Station.
Explanation; “She was getting on my nerves” (Exhibit R2) (SG26, page 198).
In sentencing the Applicant, Magistrate Woods stated:
…it’s my view that imprisonment is the only appropriate penalty to be imposed. And in relation to that, the seriousness of your offending as per your record shows serious escalation; serious circumstances of domestic violence in this occasion where a weapon is used; there are children present in the house; there was – whilst no significant injuries as such, its not the amount of injury that’s of concern; it’s the behaviour and that’s not changing; its escalating.
In relation to these offences, as I have said, imprisonment is the only appropriate disposition and I intend to impose an immediate term of imprisonment (Exhibit R1) (G7, page 30).
At the Tribunal hearing, the Applicant appeared not to understand the seriousness of this offending. He denied facts recorded by the police in the Statement of Material Facts (Exhibit R2) (SG26). Specifically, he denied that he hit the victim in the eye, denied that he attempted to stab her with a knife, denied cutting her, and denied threatening her when she had tried to hide behind the children’s bedroom door. The Applicant blamed the alcohol and drugs for his behaviour and stated that the victim had lied to the police about the extent of the incident. The Applicant also denied, several times while giving evidence at the hearing, that he had been convicted of “being armed in a way that may cause fear” for which he received a sentence of imprisonment for 6 months concurrent on 9 January 2017, despite the conviction being recorded on his police record (Exhibit R2) (G6, page 26).
The Tribunal also notes a prior domestic violence offence against another of the Applicant’s previous partners on 4 November 2009. The Statement of Material Facts stated that “…it was established by Police that the couple had argued on 4^th November 2009 and at that time, the accused had held a burning cigarette against the victim’s right fore-arm causing a deep burn approximately one centimetre in diameter” (Exhibit R2) (SG16, page 176). His explanation to police was “I burnt the cigarette on her” (Exhibit R2) (SG16, page 176).
On 17 May 2010, there was another domestic violence incident against the same victim The following excerpt is from the Statement of Material Facts:
The accused walked into the kitchen in an enraged state and attacked the victim without warning or provocation.
The accused grabbed the victim around the throat with both hands and commenced choking her.
Throughout the ordeal the victim was terrified that she was going to die and repeatedly begged the accused to let her go. The accused continued his grip on her throat and she was unable to breath (sic).
The victim lost consciousness.
The victim next recalls the accused standing near her while she was lying on the kitchen floor.
The accused said, “I’m going to let you live. Go call the police.” (Exhibit R2) (SG20, page 183).
At the Tribunal hearing, the Applicant minimised his offending and sought to divert blame to the victims. He stated that both of his previous partners had also been violent to him, but when the police were called they would favour the women’s versions of events. He stated in his evidence at the hearing that he was not “a violent person, but if I’m being pushed and then I don’t know what to do, that’s when I get angry and when I’m drunk and then … it makes it worse. But when I get pushed to the limit I get angry”. Similarly, with respect to his offences against police, the Applicant agreed under cross-examination that the police were “pushing… [him] to the limit” when he assaulted them.
Further, another violent assault was committed by the Applicant on his brother’s girlfriend on 4 March 2006. The Statement of Material Facts states:
…A verbal argument started between the accused and one of the occupants of the house, which resulted in the accused been (sic) asked to leave.
The complainant was voicing her opinion towards the accused, when he grabbed her by the neck and then by the back of her head/ hair with his left hand. The accused held the complainant’s head/hair for approximately one to two minutes, while he wrestled with the other male who was trying to get him to let go of the complainant.
As a result the accused let go of the complainant and walked out.
On police attendance, the accused was spoken to and conveyed to the …Police Station where he voluntarily participated in a video record of the interview, making full admissions to the offence.
The accused explained that he did not remember pulling the complainant’s hair out and stated that if she hadn’t resisted him, and mouthed off at him, then it may not have happened (Exhibit R2) (SG9, page 164).

At the Tribunal hearing, the Applicant accepted that he stated “that if she hadn’t resisted him, and mouthed off at him, then it may not have happened” (Exhibit R2) (SG9, page 164). He explained that the victim was involved “in something that didn’t concern her”, namely she tried to intervene when he was physically fighting with his brother and a friend.
In its Statement of Facts, Issues and Contentions, the Respondent stated:
The respondent contends that the Tribunal should be particularly concerned by the domestic violence nature of the assault convictions. The respondent contends that the offences for which the applicant was convicted are clearly serious offences of the type identified in Direction No 65. The seriousness of domestic violence offences, in the context of visa cancellation, was explained by Deputy President Kendall (as his Honour then was) in XFKR and Minister for Immigration and Border Protection [2017] AATA 2385 (XFKR) at [45]:
The Tribunal would add that, in a society that adheres to fundamental sex equality principles, violence that is gendered and directed at women (and which seeks to degrade and dehumanise women on the basis of sex) is both individually and systemically intolerable. Its harms are threefold: First, it results in direct physical and psychological harm for those women against whom the violence is directed. Second, it psychologically harms the children of these women – children who, as in this instance, witness their mothers being abused, degraded and dehumanised – and send a message to those children (male and female) that behaviour of this sort is to be tolerated. Third, it normalises those socially enforced gender imbalances that allow sex based inequalities and violence to arise in the first place. The impact this has, socially, on systemic equality between the sexed [sic] cannot be underestimated (Exhibit R3, page 8).
The Tribunal agrees with this explanation from Deputy President Kendall (as he then was), and reiterates the serious nature and impact of violence and domestic violence on women, children and equality in society (see 13.1.1(1)(a) of Direction no. 65). The Tribunal notes that this type of offending poses a serious risk to vulnerable members of the Australian community (13.1.1.1(1)(b) and 13.1(2)(b) of Direction no. 65) – namely women and children. It is of concern that the Applicant has sought to justify his offending by claiming the victims provoked him, and by blaming his mental illness, saying that it was “not him personally” doing the offending.
The Tribunal notes that there have been some gaps in the Applicant’s offending (for example in 2008 and 2009, and then in 2011 through to 2016). However, the cumulative effect of the Applicant’s repeated offending comprises 27 offences over a 13 year period which commenced within the first six years of him arriving in Australia (in 2004). Additionally, his offences have increased in frequency and seriousness – starting with driving offences, and escalating, for example, to more serious offences including assault and domestic violence incidents (13.1.1(1)(d) and (e) of Direction no. 65), with the latest offences resulting in a custodial term of imprisonment.
The Tribunal further notes that the Applicant received a warning in the letter dated 29 January 2014 from the Department of Immigration and Border Protection (Exhibit R1) (G23, page 87), to the effect that further offending may negatively impact on his visa status, as detailed above (13.1.1(1)(g) of Direction no. 65), but subsequently committed the three serious offences for which he was sentenced on 9 January 2017. In the Tribunal’s opinion, continuing to offend after receiving this warning demonstrates a lack of insight into his offending.
The Tribunal further notes several incidents involving the Applicant whilst he was in immigration detention (Exhibit R1) (G22, page 82-86). The second and third incident in particular (which occurred on 9 August 2017 and 23 August 2017 respectively), are relevant to Direction no. 13.1.1(1)(h). The incidents were summarised by the Acting Detainee Service Manager in a “Client Incident Report” as follows. On each occasion, the Applicant was recorded as the “Alleged Offender”:
(a)25 July 2017 – “Abusive/ Aggressive with DSM [Detainee Service Manager] … after she advised him to complete a request form to obtain his mobile phone from property” (Exhibit R1) (G22, page 86);
(b)9 August 2017 – “Detainee abusive aggressive escalating to assault minor in the form of threatening to kill staff” (Exhibit R1) (G22, page 83-84);
(c)23 August 2017 – “Detainee assaulted Serco Officer outside interviews 2” (Exhibit R1) (G22, page 82-83). The “Summary” reports that this assault has been referred to Federal Police, and records the following details of this incident:
DSO [Detainee Service Officer] H… had escorted a detainee from property to Interviews and upon his return to property passed … [the Applicant]. Detainee [the Applicant] approached DSO H…, and stated “I’m going to fucking kill you Cunt” and proceeded to strike DSO H with a closed fist to the right side of his face above the eye. DSO H… called the code black and was struck again in the face by… [the Applicant]. DSO H… was able to ground stabilize … [the Applicant] with reasonable, minimal force until Emergency Response Team Staff arrived to assist. [The Applicant] was then placed in Mechanical Restraints by ERT member …and was escorted to High Care Accommodation (HCA) by ERT staff. Mechanical Restraints were removed and Detainee… [the Applicant] remains in the HCA until further notice. DSP (sic) H was escorted to Northam Hospital by WHS Manager…for assessment.
In his evidence at the hearing, the Applicant blamed his schizophrenia for this incident, stating that he thought the officer was the devil and that, “I started fighting him before he gets me.”
Weighing up the above considerations, the Tribunal finds that the Applicant’s offending should be viewed as serious and weighs against the revocation of the cancellation of his visa.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (13.1.2)
A decision-maker should also have regard to the following principle, described in paragraph 13.1.2(1) of Direction no. 65 as follows:
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 13.1.2(2) of Direction no. 65 further provides:
(2)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Applying paragraph 13.1.2(2)(a) of Direction no. 65, the Applicant has a history of offending over a 13 year period, with offences including violence (assault), offences against public officers, and domestic violence incidents. There is a real risk that should he commit similar offences in the future, that a member of the Australian community may be seriously injured – and this includes public officers, and any future partner of the Applicant.
Applying paragraph 13.1.2(2)(b) of Direction no. 65, the Tribunal considers that there is a real and unacceptable risk that the Applicant will reoffend. This is suggested by his above noted history of violent offending, and also by the Applicant failing to take responsibility for his offending, and blaming others for his offending, including his two ex-partners, his brother’s girlfriend and police, whom the Applicant suggested had provoked or pushed him to his limits. The Applicant also attributed blame to his mental illness, drugs and alcohol for his offending, and as noted above, stated at the hearing that the offending behaviour was “not him personally” and that he was “not a bad person” and “not a violent person”. The following exchange from the Respondent’s cross-examination of the Applicant is relevant:
MR GERRARD: … when I asked you if you accepted that you had an issue with violence you said yes. But now you’re saying you’re not a violent person. Which is it?
APPLICANT: Yes, I have that – I have issues with violent person (sic) because I have anger problem, when I get pushed I get angry. That’s my only problem, but I’m not a violent person. I never was, I’ve never been a violent person. If I was, I could have done jail, a lot of jail time for violence, for fighting people or fighting in the club or doing a lot of stuff like that. But the violence that I’ve done is within the people that push me, with my girlfriend and that, and they’re all alcoholic and they push me to the limit. And the police, they push me to the limit too. The violence I only have is with people that push me. But I’ve never been violent towards anybody else, only towards the people that provoke me.
Additionally, even after a custodial sentence of imprisonment for offences including assault occasioning bodily harm against his former partner (committed on 4 July 2016) (Exhibit R2) (SG26, page 198), as noted above the Applicant allegedly committed a serious assault against a staff member in immigration detention on 23 August 2017 (Exhibit R1) (G22, page 82-83), and also made threats to kill staff at the detention centre on 9 August 2017 (Exhibit R1) (G22, page 84-85). This demonstrates that the custodial sentence of imprisonment had little or no remedial or rehabilitative effect on the Applicant, and indicates a risk of reoffending, as well as a disregard for authority and legal rules.
The Applicant has a self-reported history of drug and alcohol use (Exhibit A1). The Tribunal further notes that, when denying him release on parole on 23 March 2017, the Prisoners Review Board of Western Australia noted that the Applicant had unmet treatment needs for domestic violence, substance abuse and consequential thinking (Exhibit R1) (G19, page 71). The Respondent noted that the Applicant has self-medicated in the past with drugs and alcohol and that “the Tribunal should have significant concerns as to whether the applicant has significantly addressed the underlying issues which contribute to his offending” (Exhibit R3, para [28]). The Applicant confirmed at the hearing that he had not undertaken any treatment programs to address these unmet treatment needs, and did not intend to undertake any treatment in the future for domestic violence or substance abuse in the future. The Applicant explained that this was because he had been free from drugs and alcohol for two years whilst in prison and immigration detention, that he had learned his lesson, wanted to work and have a better life for himself, and did not feel like he is a threat. The Applicant also stated at the hearing that he had “never been a violent person”, but that, “when I get pushed, I can’t control myself”. The Tribunal is concerned that, whilst these treatment needs remain outstanding the Applicant remains at risk of re-offending.
The Applicant has been diagnosed with schizophrenia (Exhibit A1 and Exhibit R1) (G11, page 52). The Applicant states that he is currently compliant with his medications, that he has been seeing a psychologist, and that he will be compliant with his medications if released into the community (Exhibit A1). The Applicant stated that he only commenced receiving the correct medications since going to prison in 2017 (Exhibit R1) (G11, page 53), although it appears from his evidence at the hearing that he was prescribed medications for mental illness which he was not always compliant with – instead using drugs and alcohol at times to cope. Although the Applicant’s stated intentions are positive, if he continues to use drugs and alcohol, there may be a negative impact on his mental health and this may increase the likelihood of his re-offending. This risk is elevated by his unmet treatment needs in the area of substance abuse.
Given his unmet treatment needs and lack of insight into his offending, the Tribunal is concerned that there is a likelihood of the Applicant re-offending in a violent manner, should he be given a further chance to be released back into the Australian community. As noted in 13.1.2(1) of Direction no. 65, the Australian community is likely to have less tolerance given the seriousness of this potential harm, especially when vulnerable members of the community are at risk, including women.
In the circumstances discussed above, the Tribunal is satisfied that there is a significant risk that the Applicant may commit further offences if he were to be given a further opportunity in the Australian community, and that, in those circumstances, the Australian community would expect that his visa remained cancelled. This weighs against the revocation of the cancellation of his visa.
Second primary consideration: The best interests of minor children in Australia (13.2)
Paragraph 13.2 of Direction no. 65 provides:
(1)Decision-makers must make a determination about whether revocation is, or is not, in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
As noted above, the Applicant’s former partner has two minor children, aged five and eight years old. The Applicant is not the children’s biological father, but in the words of the children’s mother, the Applicant “stepped up to the role of step-father”. The children reside with their mother in Victoria (paragraphs 13.2(2) and 13.2(4)(e) of Direction no. 65). If the Applicant is released from immigration detention, it is his intention to remain in Perth, and to travel to visit the children. The children’s biological father also resides in Western Australia, and the Applicant’s former partner stated in her evidence that the children could see the Applicant when they travelled to Western Australia to see their biological father. There is no information before the Tribunal that the children’s interests differ, so the Tribunal will proceed to consider the interests of both children together (paragraph 13.2(3) of Direction no. 65).
Paragraph 13.2(4) of Direction no. 65 continues on to outline the factors that a decision-maker must consider when determining the best interests of a child:
(4)In considering the best interests of the child, the following factors must be considered where relevant:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
At the Tribunal hearing, the Applicant stated his relationship with his former partner was for approximately one year to 18 months. However in her evidence to the Tribunal, his former partner said their relationship was for approximately six to eight months. The Applicant and his former partner have, however, known each other for approximately five five years, but commenced a relationship when the oldest child was approximately two and a half years old, and the youngest child was approximately a month old (Exhibit R1) (G10, page 46). The Applicant and his former partner are no longer together as a couple, but are currently “friends”. Both gave evidence at the hearing that they have been discussing working through their differences, although the Applicant stated that he thought it was unlikely they would reconcile.
In his personal circumstances form dated 15 February 2017, the Applicant stated: “If my visa would be cancelled this would cause severe hardship on … [his partner] and the… [two children] as I am their primary caregiver and provider” (Exhibit R1) (G10, page 44), and further that the children look to him as if he was their father, and that he regards them as his own children (Exhibit R1) (G10, page 46). Although the children’s biological father pays them monthly child support, the Applicant stated that he intended to work and send money to help support the children.
In her written statement to the Tribunal, his former partner wrote that she and the children have a “strong bond” with the Applicant and that “he has been an active part of our lives” (Exhibit A2, page 1). The Applicant’s former partner stated in her evidence to the Tribunal at the hearing that he talks to the children “most nights” on the telephone and that they ask when he is coming home.
The Applicant’s former partner also stated the following in her statement about the Applicant’s involvement in the children’s lives:
…[the Applicant] has also stepped up to the challenge of being an (sic) loving caring active and involved step dad with the day today (sic) care raising the 2 [children] as well as attending gatherings sports events, Christmas, birthdays and other school family occassions (sic) such as my sisters (sic) 21^st b day and family holidays (Exhibit A2, page 1).
She further stated:
It’s been hard on the kids because they keep asking when…[the Applicant] is coming home or when are we going to visit its hard telling them that we are unable to visit because its (sic) too far or I’m just financially unable. We try to keep regular phone contact but we miss him dearly (Exhibit A2, page 2).
Applying paragraph 13.2(4)(b) of Direction no. 65, the Tribunal notes that the children are very young, and that they may benefit from having the support and involvement of a step-father in their upbringing. However, the Tribunal notes that the children will be residing in a different State to the Applicant, so he will have infrequent contact with them. Also, if he continues to offend, he will not be a positive role model for the children. Additionally, as expressed above, the Tribunal is also concerned that the children have witnessed the Applicant’s domestic violence against their mother, and if the parties were to reconcile and if any future domestic violence incidences were to occur, the children could suffer significant physical and emotional detriment. There is no evidence of any safety planning in place to protect the children in those circumstances.

Similar considerations apply when considering paragraph 13.2(4)(c) of Direction no. 65. The Applicant’s most recent custodial sentence of imprisonment was for domestic violence offence against the children’s mother in which she sought refuge in the room that the children were sleeping in to escape the Applicant who was pursuing her with a knife. The Applicant has also breached protective bail conditions by going to the home of his former partner (the children’s mother) (12 October 2016) (Exhibit R2) (SG27, page 200). If this type of offending occurs in the future and should the parties work through their differences and reconcile, it will most likely have a negative impact on the children.
Applying paragraph 13.2(4)(d) of Direction no. 65, a permanent separation from their step-father may negatively impact on the young children, if he were to be removed from Australia.
The Tribunal acknowledges that although telephone contact with a parent is not the same as in person contact, the Applicant would be able to maintain contact with his step-children in this manner, as he has been currently doing whilst in detention. Furthermore, if the Applicant is released from detention, it is his intention to remain in Perth, and to travel to visit the children in Victoria.
The Tribunal also notes that the children’s mother fulfils a parenting role in relation to the children, who reside with her (13.2(4)(e) of Direction no. 65).
The Tribunal does not have sufficient evidence before it regarding the wishes of the children, other than their mother’s evidence discussed above, including that they miss him and have been asking when he is coming home (13.2(4) of Direction no. 65).
There is no evidence that the Applicant has abused or neglected the children (paragraph 13.2(4)(g) of Direction no. 65). There is also no evidence before the Tribunal that the children have experienced any physical or emotional trauma from the Applicant’s conduct (paragraph 13.2(4)(h) of Direction no. 65), or what the children’s impressions were during, and as a result of the domestic violence incident when their mother shut herself in their bedroom. Both the Applicant and his former wife gave evidence at the hearing that the children were asleep during that incident.
Taking into consideration the above discussion of the factors in paragraph 13.2(4) of Direction no. 65, and notwithstanding the Tribunal’s reservations expressed in this discussion, on balance, the best interests of the children are likely to be served by the revocation of the cancellation of the Applicant’s visa.
Third primary consideration: Expectations of the Australian Community (13.3)
Paragraph 13.3(1) of Direction no. 65 provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
In Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36], Deputy President Block explained:
…the expectations of the Australian community should be taken to be the expectations of the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.
Further, in Do and Minister for Immigration and Border Protection [2016] AATA 390 at [22]-[23], Deputy President McCabe stated:
(22)The Direction says the Australian community expects non-citizens to obey the law. It goes on to say the nature of the offending behaviour might be such that the community would not expect the decision-maker to revoke the cancellation.
(23)A decision-maker is, to some extent, required to guess at the community’s expectations. The Direction does not refer to studies or other evidence which would enable me to formulate a precise view of public attitudes and values. I must form my view having regard to contents of the Direction (which is, after all, a statement prepared by the community’s elected representatives), the sentencing remarks of the court and common sense. As I begin my deliberations, I assume the Australian community would be fair-minded and mature. Modern Australia was founded by convicts and their gaolers, after all: we are a nation built on second chances. The community would certainly not be vengeful. The applicant has already been punished for his offence, and the community would not want to see visa cancellation misused to inflict further punishment. I would also expect the community to be conscious of the length of time the applicant has lived in Australia and other circumstances which might assist the community to form a proper judgment about the individual and what should be done.
The Tribunal notes the number and nature of the offences committed by the Applicant over a period of approximately 13 years. A fair-minded member of the community would likely give an Applicant a chance to reform after committing the first few offences, but if that offending continues over a period of time, the Australian community is likely to be less tolerant.
The Australian community is also likely to have far less tolerance of offending which involves violence, and domestic violence against women. The Applicant has committed domestic violence offences against two former partners, as well as a violent assault against his brother’s girlfriend.
Overall, the Applicant’s offending has escalated in seriousness and frequency from traffic/motor vehicle offences to assault, culminating in Deputy Chief Magistrate Woods expressing the view, on 9 January 2017, that a term of imprisonment was the “only appropriate penalty” (Exhibit R1) (G7, page 30).
Prior to committing the offences which resulted in this term of imprisonment from 9 January 2017 – which included “assault occasioning bodily harm” and “being armed in a way that may cause fear” – the Applicant received and acknowledged a warning that his visa may be revoked if he committed further offences. Not only did he ignore this warning, but the offences he subsequently committed against his partner were of a serious and violent nature.
The Applicant was also not deterred from further violent offending after serving this term of imprisonment. On 23 August 2017 he also allegedly committed a serious assault against a staff member whilst in immigration detention, which resulted in the staff member being taken to hospital, as well as threatening to kill staff on a previous occasion (9 August 2017) (Exhibit R1) (G22, page 92-86). In his oral evidence to the Tribunal, the Applicant blamed his mental illness for this assault, saying that he could hear voices telling him to attack the officer. This is of concern to the Tribunal because the Applicant also gave evidence that he had been taking his medication whilst in detention and that his mental health had stabilised.
Although the Australian community is reasonable, and would not approve of a punitive application of the Migration Law, the Tribunal finds that, in the Applicant’s circumstances, the Australian community would not expect the decision-maker to revoke the cancellation of the Applicant’s visa. This is particularly after the Applicant reoffended in a violent manner after being given a second chance to remain in Australia by being warned that further offending may result in the cancellation of his visa. The Australian community would have a low tolerance for violence against women, as well as violence against police and authority figures, such as immigration detention staff.
OTHER CONSIDERATIONS
Paragraph 14 of Direction no. 65:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(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.
International non-refoulement obligations
Direction no. 65 relevantly states, in paragraph 14.1:
(1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2)The existence of a non-refoulement obligation does not preclude non revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
(3)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
(4)Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
(5)If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them – sections 48A and 48B of the Act refer).
(6)In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.
In his personal circumstances form dated 15 February 2017, the Applicant stated, in response to the question, “Do you have any concerns or fears about what would happen to you on return to your country of citizenship?”, the Applicant ticked the box marked “yes” and wrote, “There is still fighting over there and a lot of killing going on. Is (sic) not safe for anyone to live there” (Exhibit R1) (G10, page 50). In an attachment to this form, the Applicant further stated, “I came to Australia when I was 17, with my brother…fleeing Sudan due to the devastating effects of the ongoing war problems, having personally witnessed many killings and destruction of my hometown” (Exhibit R1) (G11, page 52). The fact that the Applicant has raised the issue that he may suffer harm if he returns to Sudan is a claim which may engage Australia’s non-refoulement obligations (paragraphs 14.1(1) and 14.1(3) of Direction no. 65). However, as contemplated in paragraph 14.1(2) of Direction no. 65, the existence of a non-refoulement obligation does not preclude the nonrevocation of the mandatory cancellation of the Applicant’s visa.
As the Applicant arrived in Australia on a Global Special Humanitarian visa, he could apply for a protection visa under s 501E(2) of the Migration Act, as contemplated by

paragraph 14.1(4) of Direction no. 65. The Respondent submits that, if any

non-refoulement obligations exist, they can be met through the protection visa process, or through the exercise of powers under s 195A of the Migration Act (Exhibit R3, para 43).
Although paragraph 14.1(4) of Direction no. 65 provides that it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of considering whether the cancellation of their visa should be revoked if the Applicant can make an application for a protection visa, in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96 (“BCR16”), a majority of the Full Court of the Federal Court held otherwise (Bromberg J and Mortimer J at 528).
Specifically, in BCR16, the majority stated (at 528):
That returning an individual to a country where there is a real possibility of significant harm, or a real chance of persecution, may contravene Australia’s non-refoulement obligations, is also a matter to be weighed in the balance of deciding whether to revoke a mandatory visa cancellation.
The effect of the majority’s decision in BCR16 was discussed by Deputy President Kendall (as he then was) in HSKJ and Minister for Immigration and Border Protection [2017] AATA 1802 (“HSKJ”) who stated (at 87 and 88):
(87)Until recently, the Tribunal would have found that, because of his ability to apply for a Protection visa, the Tribunal was not required to assess any non-refoulement obligations owed to HSKJ. It was generally accepted that because Direction No. 65 specifically states that it is not necessary to determine a non-refoulement issue in circumstances where an applicant can apply for a Protection visa, the Tribunal would normally rely on any non-refoulement assessment being made by another body specifically charged with determining the validity of a Protection visa claim.
(88)That position is now disputed, however, because of the recent decision of the Federal Court in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96 (“BCR16”). Following BCR16 (now on appeal to the High Court but which is binding on this Tribunal) the Tribunal is required to assess (to the extent that it can on the evidence) any type of harm that might arise to him should HSKJ be deported to Iraq. This is so regardless of whether an applicant specifically frames his risk of harm as a non-refoulement issue.
In summary, the Tribunal is required to consider whether the Applicant’s claims of a risk of harm if he were returned to Sudan would constitute another reason why the cancellation decision should be revoked. However, before the Tribunal undertakes this consideration, it is relevant to note the following comments from the decision of Deputy President Kendall (as he then was) in HSKJ (at 89-91):
(89)In assessing any non-refoulement obligations, the Full Court has previously noted that the level of analysis required by the Tribunal is less than that required in assessing a claim for a Protection visa. Relevantly, in Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 in relation to a s 501 refusal, the Court found (at [28]):
An exercise of the statutory power conferred by s 501 of the Migration Act does not require the same analysis to be undertaken as would be required if an application for a protection visa is made and s 36 is invoked. Nor is that analysis to be undertaken even where the Minister does take into account Australia’s non-refoulement obligations.
(90)Nor, it should be stressed, could the Tribunal engage in the sort of evidentiary analysis that would be undertaken if a Protection visa claim were examined elsewhere by those specifically charged with analysing a Protection visa claim. Normally, when a protection visa application is determined, the decision maker has access to an extensive interview with the applicant and, importantly, a detailed International Treaties Obligations Assessment (“ITOA”). That is not the case here. Before this Tribunal, in an expedited hearing that requires the Tribunal to make an assessment in a very short period of time, the Tribunal does not have the benefit of an ITOA or the full body of evidence one would expect in a protection visa hearing.
(91)In these circumstances, the Tribunal can only assess the often limited evidence before it in determining any risk of harm to HSKJ. This is arguably less than ideal given the possible negative consequences for an applicant in this context.
As Deputy President Kendall (as he then was) noted, there is often very limited evidence before the Tribunal regarding the risk of harm. This is certainly true of the Applicant’s case, with the only evidence before the Tribunal being that of a very general nature given by the Applicant, as stated in paragraph 100 of these reasons for decision. Specifically, the Applicant has not articulated specific harms, but rather, he has made general statements that he fears Sudan to be unsafe due to war and civil unrest. Even if the Tribunal were to accept the Applicant’s claims of potential harm if he were to be returned to Sudan, he is in no different position than any other citizen of Sudan. Accordingly, the Tribunal agrees with the Respondent’s submission “that there is insufficient evidence to support a conclusion that this consideration should displace the primary considerations” (Exhibit R3, para [51]).
Strength, nature and duration of ties
Paragraph 14.2(1) of Direction no. 65 provides:
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
As noted above, the Applicant fled Sudan as a 13 year old, fleeing to Uganda with his brother. He arrived in Australia in 1998 when he was 17 years old (paragraph 14.2(1)(a) of Direction no. 65) with his father, who returned to Sudan in approximately 2009 or 2010.
The Tribunal further notes that the Applicant applied for Australian citizenship on 11 December 2009 (Exhibit R1) (G4, page 22). His application was refused due to pending criminal charges. He applied again on 10 September 2015, but his application was refused because the delegate was not satisfied as to his identity (Exhibit R1) (G24, page 100).

He first offended in 2004, within approximately six years after arriving in Australia (paragraph 14.2(1)(a)(i) of Direction no. 65).
The Applicant finished the final three years of secondary school in Australia, and has been able to make a contribution to the community through employment (since 2003) as a factory hand, trades assistant, store person and forklift driver (Exhibit R1) (G12, page 54-55) (paragraph 14.2(1)(a)(ii) of Direction no. 65).
In addition to the Applicant’s former partner, and her two minor children, the Applicant’s step-mother, brother, sister, four step-brothers and three step-sisters also reside in Australia. He gave evidence at the hearing that if released from immigration detention, he would reside with his sister. In his Personal Circumstances Form, the Applicant stated that he had lost contact with some of his family due to his imprisonment, but intends to reconnect with them (Exhibit R1) (G10, page 47). At the hearing, the Applicant gave evidence that he became estranged from his family members due to his drug and alcohol use and offending (paragraph 14.2(1)(b) of Direction no. 65). He also stated that he turned to alcohol and drugs due to “no family and friends support” (Exhibit R1) (G10, page 48).
The Tribunal accepts that the Applicant’s former partner and step-children would be likely to suffer financial detriment if he were removed from Australia, and notes the Applicant’s former partner’s statement that she had had to move in with her mother because she was suffering financial hardship as a result of the Applicant not being able to assist her financially (Exhibit A2) (paragraph 14.2(1)(b) of Direction no. 65). As noted above, the children’s biological father pays some child support, but the Applicant gave evidence at the hearing that he intended to find employment and send money to his former partner to help with the children’s upbringing.
Overall, the Applicant’s ties to the Australian community, including his former partner, two step-children and other family members (despite the appearance that he may not have a close or ongoing relationship with them at the present time), weigh in favour of the revocation of the cancellation of his visa.
Impact on Australian business interests
The Tribunal is satisfied that a decision not to revoke the cancellation of the Applicant’s visa will not have a relevant impact on Australian business interests (paragraph 14.3(1), Direction no. 65).
Impact on victims
The Tribunal notes that the Applicant’s former partner appears supportive of the cancellation being revoked so the Applicant can remain in Australia and have an ongoing relationship with the children. His former partner was the victim of the Applicant’s most recent domestic violence related offending for which he received a term of imprisonment on 9 January 2017, so a decision not to revoke the cancellation of the Applicant’s visa may provide protection against similar offending by the Applicant against her in the future if they decide to reconcile.
The Tribunal does not have evidence before it regarding the impact on other victims of his criminal behaviour, or the family members of the victims (paragraph 14.4(1) of Direction no. 65).
Extent of impediments if removed
Paragraph 14.5(1) of Direction no. 65 provides:
(1)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)The non-citizen’s age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.
As noted above, the Applicant has lived in Australia since 1998, arriving when he was 17 years of age. He is currently 36 years old. After living for this amount of time in Australia, he would undoubtedly face difficulty in re-establishing himself in Sudan. He does, however, speak the language, and is familiar with the culture, and although there would be some cultural and language barriers to overcome, they would not be insurmountable. The Applicant was able to finish secondary school in Australia, and also has some work experience in Australia, which may be able to assist him to find employment in Sudan.
The Applicant gave the following evidence at the hearing when cross-examined:
MR GERRARD: Why do you say you cannot go back to Sudan now?
APPLICANT: Because I don’t know anything about Sudan and all my life have been in Australia. That’s what I know here. And if I go back, it’d be hard for me to do anything, even start. I don’t know where to start. And even they still - even now, still killing each other, the civil war going on. The country’s still not stable. And for mental illness, they’ve got no treatment there for my mental illness. There’s a lot of things that you should consider about that. There’s a war, there’s killing, and there’s second of all, I can’t even – I don’t know where to start if I go there because I haven’t grew up there. And thirdly, my mental illness and they have no treatment there for my mental illness or mental health, because therefore if I get sick – and I don’t have anybody to stay with even, because me and my dad, we don’t get along.
Although the Applicant would have the same access to medical and other services as other citizens, the Tribunal acknowledges that he would face hardship if he is returned to Sudan. Although the Applicant appears to be physically in good health, there is little evidence before the Tribunal, other than the oral evidence of the Applicant, as to the standard of health services in Sudan. However, they are likely to be poor when compared to Australia, and if he were returned to Sudan, he would likely have difficulty accessing appropriate mental health services to treat his schizophrenia. Further, the Tribunal notes that even with access to a high standard of mental health care in Australia, the Applicant has continued to offend.
Overall, the hardship the Applicant would suffer if he were returned to Sudan weighs in favour of the revocation of the cancellation of his visa.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Migration Act.
In relation to the primary considerations that the Tribunal must take into account under Direction no. 65, the findings that the Tribunal has made regarding the Protection of the Australian Community (paragraphs 13.1, 13.1.1 and 13.1.2 of Direction no. 65), and the Expectations of the Australian Community (paragraph 13.3 of Direction no. 65) weigh strongly in favour of the Tribunal refusing to revoke the cancellation of his visa (that is, affirming the Reviewable Decision).
With respect to the primary consideration regarding the best interests of the children (13.2 of Direction no. 65), although the Tribunal has found, with some reservations, that the best interests of the Applicant’s step-children may, on balance, be better served by the Applicant being permitted to stay in Australia, it is outweighed by the other two primary considerations.
With respect to the remaining other considerations (paragraph 14 of Direction no. 65), paragraph 14.3 of Direction no. 65 is not relevant to the Applicant’s situation. Whilst others (such as the difficulties his former partner and step-children may face if he is returned to Sudan, the impediments he may face if returned to Sudan, and despite limited evidence, the possibility that Australia may owe non-refoulement obligations to him), may be afforded some weight, they are clearly outweighed by the primary considerations relating to Protection of the Australian Community and the Expectations of the Australian Community.
Having regard to all of the primary considerations, and the other considerations in Direction no. 65, the Tribunal is of the view that it would not be appropriate for the Tribunal to revoke the mandatory cancellation of the Applicant’s visa. The correct and preferable decision is to affirm the Reviewable Decision.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent dated 6 April 2018 not to revoke the mandatory cancellation of the Applicant’s visa pursuant to
s 501CA(4) of the Migration Act 1958 (Cth), is affirmed.

I certify that the preceding 127 (one hundred and twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans

................[sgd]........................................................
Administrative Assistant Legal
Dated: 2 July 2018

Date of hearing: 21 June 2018

Applicant: Self-represented

Representative for the Respondent: Arran Gerrard

Solicitors for the Respondent: The Australian Government Solicitor

Date of hearing:	21 June 2018
Applicant:	Self-represented
Representative for the Respondent:	Arran Gerrard
Solicitors for the Respondent:	The Australian Government Solicitor