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

QYFM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2161 (9 July 2020)
Division:GENERAL DIVISION
File Number: 2019/0811
Re:QYFM
APPLICANT

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

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:9 July 2020
Place:Melbourne

The Tribunal affirms the decision under review.
.....................[sgd].................................................
Senior Member A. Nikolic AM CSC
MIGRATION – Mandatory visa cancellation – citizen of Burkina Faso – Class BC Subclass 100 Partner visa – failure to pass good character test – extensive criminal history – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 79 applied – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Criminal Code Act 1995 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Migration Act 1978 (Papua New Guinea)
CASES
BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 438
FYBR v Minister for Home Affairs [2020] HCA 056
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hughes v The Queen [2017] HCA 20; 344 ALR 187
Jagroop v Minister for Immigration and Border Protection [2016] 241 FCR 461
Martin and Minister for Immigration and Border Protection (Migration) [2018] AATA 1289
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567
Minister for Immigration and Citizenship v Obele [2010] FCA 1445; (2010) 119 ALD 358
Murphy v Minister for Home Affairs [2018] FCA 1924
Nguyen and Minister for Immigration and Border Protection (Migration) [2018] AATA 4664
Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 304 ALR 535
Omar v Minister for Home Affairs [2019] FCA 279
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
QYFM and Minister for Home Affairs [2019] AATA 717
Saleh and Minister for Immigration and Border Protection [2017] AATA 367
SCJD and Minister for Home Affairs (Migration) [2018] AATA 4020
Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81
SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235
Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 162 ALD 13
WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705; (2015) 148 ALD 117
SECONDARY MATERIALS
Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501C
Gen Sander, ‘The Death Penalty for Drug Offences’ (Harm Reduction International, March 2018).
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
9 July 2020

The applicant seeks review of a decision by a delegate of the respondent, made under s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), not to revoke the mandatory cancellation of his Class BC Subclass 100 Partner Visa (“the visa”).
The hearing was held in Melbourne on 10 and 11 June 2020. Victoria Legal Aid provided the applicant with assistance during the pre-hearing phase, but he was self-represented at the hearing. The Minister was represented by Ms Liang of Clayton Utz.
For the following reasons, the Tribunal affirms the decision under review.
INTERLOCUTORY ISSUES
Several interlocutory issues were dealt with in the pre-hearing phase of this matter: whether to continue an existing confidentiality order; the applicant’s claim that he failed to submit documents in accordance with the Tribunal’s timetabling orders because of a protracted prison lock down; and the applicant’s request that the hearing be delayed until it was possible for him to appear in person. These are now addressed in turn.
Confidentiality
On 4 March 2019, prior to the applicant’s first hearing before the Tribunal, a direction was issued that his name be suppressed and the anonym “QYFM” used. On the first day of the current hearing, the applicant advised he had applied for a Protection Visa following the 2019 hearing, which was still being determined (“2019 Protection Visa application”).[1] He requested the confidentiality order be continued. After taking instructions, Ms Liang confirmed the 2019 Protection Visa application was refused at first instance, and an appeal had been lodged by the applicant with another division of this Tribunal. There is no dispute this appeal is yet to be heard. Pursuant to s 501K of the Act, the Tribunal will continue the 2019 confidentiality order.
[1] Exhibit A12.
Claimed ‘lock down’ and denial of mail and communications
During the initial Telephone Directions Hearing (“TDH”) for this matter on 24 March 2020, the Tribunal made verbal timetabling orders for submission of documents. Both parties expressed their understanding of the necessity for timely lodgement. Written directions were issued by the Tribunal on the same day confirming submission dates.
QYFM did not lodge any materials by 8 May 2020 in accordance with the timetabling orders. On 12 May 2020 a further TDH was held to discuss this, at which QYFM claimed he had been subjected to a protracted ‘lock down…because of the pandemic they only let us out for a couple of hours each day…the computer room has been locked down.’ QYFM claimed he did not receive the Tribunal’s timetabling orders and was unable to communicate with the Tribunal or his legal advisor since the initial TDH seven weeks earlier. The Tribunal was concerned about the potential procedural fairness issues raised by these claims and made enquiries with the relevant prison by telephone and email on the same day. An email response was received from the Prison Supervisor on 12 May 2020 stating:
‘[QYFM] has been receiving his mail and has not been locked down since march 2020.
[The prison] was locked down for two days, April 22 and 23 only. Staff…have been very flexible in their assistance with [QYFM] to the point where it would be deemed as above and beyond their scope of duties.
I have had a discussion with our Executive Officer who advised that all legal mail for him is directed through her. All mail that has been bought to her attention has been passed on to [QYFM] by herself.
As the unit Supervisor, any complaints about the mail…would come through myself. I am not aware of any such complaint or issue that he is having.’
(Errors in original)
On 13 May 2020 the Tribunal provided copies of this correspondence to both parties. On 3 June 2020 at 4:51 pm, the Tribunal received a further email from the prison stating: ‘[QYFM] has requested that we advise you…he has been unable to contact his lawyer by telephone…His lawyer is Luke McLean…Contact details for his lawyer is...’ On 3 June 2020 at 5:00 pm the Tribunal emailed Mr McLean at Victoria Legal Aid, attaching a copy of the correspondence received from the prison, to which Mr McLean responded at 5:02 pm stating: ‘Received, thank you.’
On 29 May 2020, 3 June 2020, 4 June 2020, 5 June 2020, QYFM and his ‘support person,’ lodged several bundles of documents, which was prior to the final submission date in the Tribunal’s timetabling orders.
During the hearing QYFM tendered a journal into evidence, purporting to record mail and telephone communications with members of his family in Melbourne between the period 24 September 2019 and 26 May 2020.[2] The journal recorded him receiving letters and making numerous calls from prison during the period he previously claimed to have been locked down and unable to communicate. The Tribunal does not accept that QYFM was locked down for a protracted period as he claimed, or that he did not receive mail, or that he was prevented from communicating with the Tribunal or those assisting him with his application.
[2] Exhibit A23.
Rescheduling of hearing dates
At the initial TDH on 24 March 2020, several options were discussed with the parties about how to proceed with QYFM’s application in light of a Direction by the President of the Tribunal a day earlier, that all participants in s 501 matters ‘will be required to attend…by video or telephone.’ The parties were given three weeks until 14 April to express their views about available attendance options. The respondent advised a preference to proceed via video conference, while QYFM did not respond by the due date. The Tribunal subsequently listed the matter for a hearing by video commencing on 10 June 2020.
On 4 May 2020 QYFM wrote to the Tribunal stating he ‘did not fel (sic) comfortable’ with a hearing by video and ‘would rather wait to appear in person after the pandemic and after I have conferred with my legal adviser.’ This request was considered at the TDH on 12 May 2020, where QYFM recited several reasons in support of his request:
(a)He would have difficulty understanding the proceeding unless he was physically present;
(b)He would not have a ‘proper opportunity’ to communicate or make his case ‘freely’ if appearing by video, which may cause him to be ‘misunderstood or misinterpreted;’
(c)The Tribunal may not be able to properly assess his ‘demeanour’ and ‘credibility’ unless his responses could be observed in person;
(d)His ‘mental difficulties’ would make him feel ‘very insecure and uncomfortable;’
(e)He may not be able to ‘discuss very sensitive issues’ if appearing by video;
(f)He may not be able to understand oral evidence from witnesses at the hearing; and
(g)His witnesses did not feel ‘comfortable or secure’ appearing by video or telephone.
The Tribunal asked QYFM several questions, including whether an interpreter could be provided, despite his insistence that he did not require one. QYFM claimed he had difficulty communicating in English, but an interpreter would not assist him because he no longer spoke either of his native languages (French and Mòoré). The Tribunal asked QYFM whether he had appeared via video in previous proceedings, which he confirmed, but claimed to have heard ‘funny noises’ and an ‘echo.’ QYFM was also asked to elaborate on the basis for his claim that witnesses did not wish to appear by video or telephone, and that medical issues would impede his ability to participate other than in person. QYFM relied on his own uncorroborated claims for these submissions.
After hearing from both parties, the Tribunal decided the matter would proceed by videoconference on 10 June 2020 as listed, giving the following ex tempore reasons:
(a)QYFM had agreed to the 10-12 June hearing dates at the TDH on 24 March 2020, which had subsequently been listed within a busy hearing program. Re-listing a three-day hearing could only be done for good reasons;
(b)QYFM’s case had been before the Tribunal and Federal Court for approximately 15 months. The Tribunal noted QYFM had received legal assistance from Victoria Legal Aid in the pre-hearing phase and had seven weeks since the first TDH to submit his materials, consult with his ‘legal adviser,’ or explore other avenues for legal assistance; and
(c)QYFM had previously submitted materials to the Tribunal ahead of the April 2019 hearing and in support of his Federal Court appeal, suggesting that much of the information he was likely to rely upon was currently available to him;
(d)QYFM had not provided any evidence to suggest that additional material was being sought, or could not be accessed in the time available, or was dependent on legal advice, or that securing additional legal support was in prospect if the hearing was rescheduled. The Tribunal emphasised that QYFM had approximately a further four weeks to submit his materials ahead of the hearing; and
(e)QYFM’s submission about why he preferred to wait until an appearance was possible in person, potentially months into the future, did not raise any persuasive procedural fairness issues. The Tribunal routinely undertook hearings with parties appearing remotely and disagreed that the method of appearance alone gave rise to the procedural fairness issues raised. The Tribunal considered QYFM’s claims were overly speculative, overstated, or uncorroborated by supporting evidence.
BACKGROUND
QYFM is a 43-year old citizen of Burkina Faso[3] and the eldest of four siblings. He was educated in Burkina Faso and ‘decided to come to Australia via South Africa.’[4]
[3] Exhibit R1, 78.
[4] Ibid, 31 [18].
QYFM’s movement records disclose that he arrived in Australia in July 1997[5] and lodged a Protection Visa application within three months (“1997 Protection Visa application”).[6] This application was refused by a delegate of the respondent, and on 16 December 1999 the refusal decision was affirmed by the former Refugee Review Tribunal (“RRT”).[7] In January 2000, representations were made by QYFM’s then lawyer to the Minister for Immigration and Multicultural Affairs, without success.[8]
[5] Ibid, 208.
[6] Exhibit A3.
[7] Exhibit A2.
[8] Exhibit A4.
QYFM departed Australia on 20 September 2001 and remained overseas for about 10 years before returning in December 2011.[9] He undertook two further periods of international travel soon after returning to Australia; two months in early 2012, and two weeks in June 2012.[10] It was during the latter travel that he attempted to import a marketable quantity of a border controlled drug, namely cocaine.[11]
[9] Exhibit R1, 208.
[10] Ibid.
[11] An offence under s 307.2(1) of the Criminal Code Act 1995 (Cth), with drugs falling within the range of 2 grams and 2000 grams constituting a marketable quantity.
QYFM pleaded not guilty to importing cocaine, but was subsequently found guilty after a jury trial in the Melbourne County Court.[12] He received a sentence of ten years imprisonment with a non-parole period of seven years.[13] His appeal against the conviction was dismissed by the Victorian Court of Appeal in 2014 and the original sentence affirmed.[14]
[12] Exhibit R1, 25-36.
[13] Ibid, 25.
[14] Ibid, 296.
On 8 November 2017, QYFM’s visa was cancelled by a delegate of the respondent under s 501(3A) of the Act.[15] On 9 November 2017 he made representations seeking revocation of the cancellation decision.[16]
[15] Ibid, 66-70.
[16] Ibid, 73-87.
On 4 February 2019, QYFM was notified that another delegate of the respondent had decided not to revoke the visa cancellation.[17] On 15 February 2019, QYFM asked the Tribunal to review the non-revocation decision.[18]
[17] Ibid, 9-10.
[18] Ibid, 3-8.
On 16 April 2019, the Tribunal, differently constituted, affirmed the cancellation decision.[19] QYFM sought judicial review in the Federal Court of Australia. In February 2020, the Court ordered that the Tribunal’s decision be set aside, giving rise to these proceedings.
[19] QYFM and Minister for Home Affairs [2019] AATA 717.
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AATA”) and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction to review decisions under s 501CA.
Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a person’s visa if the Minister is satisfied that the person does not pass the character test and is serving a full-time sentence of imprisonment.
The ‘character test’ is defined in s 501(6) of the Act and refers to a range of character matters that the Minister or their delegate may have regard to in deciding whether to revoke a mandatory visa cancellation under s 501(3A). Section 501(6)(a) of the Act provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or …
Section 501(7) of the Act sets out six sets of circumstances in which a person is taken to have a substantial criminal record for the purposes of the character test, including if the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)).
Under s 501CA(3) of the Act, the Minister is obliged, as soon as practicable after deciding to cancel a visa, to give notice of the decision to the person and to invite them to make representations about revoking the original cancellation decision. Provisions relating to the form and process of those representations are found in reg 2.52 of the Migration Regulations 1994 (Cth).
Section 501CA(4) of the Act provides a discretion that the Minister may revoke the original decision, if the person whose visa has been cancelled makes representations in accordance with the invitation, and the Minister is satisfied that the person passes the character test, or that there is another reason why the original decision should be revoked.
Direction No. 79
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act, provided the directions are about the performance of those functions or the exercise of those powers. The Minister has done so in the form of Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”). Section 499(2A) mandates that the Tribunal must comply with the Direction.[20]
[20] BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104, 9 (Collier, Flick and Perry JJ).
The purpose of the Direction is to guide decision-makers in performing functions or exercising powers under ss 501 and 501CA of the Act. Clause 6.1 of the Direction sets out several objectives, the first of which is to ‘…regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.’
By way of general guidance, cl 6.2 of the Direction provides that:
(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) ….
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA.
The principles referred to in the Preamble of the Direction are reproduced below and constitute a framework within which decision-makers apply the considerations in Parts A, B, or C of the Direction:
6.3 Principles
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(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.

Clause 7(1)(b) of the Direction provides that in cases relating to the mandatory cancellation of a visa, a decision-maker ‘…must take into account the considerations in Part C …’. The following primary considerations at cl 13(2) of the Direction must be applied to determine whether to revoke a mandatory visa cancellation:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
Clause 14(1) of the Direction requires that other considerations to be taken into account 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.
Clause 8(2) of the Direction states that in applying the primary and other considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
Clause 8(3) of the Direction states that ‘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.’
Clause 8(4) states that ‘Primary considerations should generally be given greater weight than the other considerations.’
Clause 8(5) states that ‘One or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop v Minister for Immigration and Border Protection and Another [2016] 241 FCR 461 at [57] and [78], in relation to previous ministerial directions:
[57] … the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501…
…
[78] … Ultimately…each decision-maker must return to the probative material and evidence in an individual case: it is not the content of the Direction which determines the outcome of the exercise of the s 501 discretion, but rather its application by a particular decision-maker to the evidence and material in an individual case.
DOES QYFM PASS THE CHARACTER TEST?
QYFM was sentenced to 10 years imprisonment in 2013. Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, he does not pass the character test. Accordingly, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation of his visa.
ISSUE TO BE RESOLVED
It remains to be determined under s 501CA(4)(b)(ii) of the Act if there is ‘another reason’ why the mandatory visa cancellation should be revoked. The task of identifying ‘another reason’ was elaborated upon by the Full Court of the Australian Federal Court in Viane v Minister for Immigration and Border Protection [2018] 162 ALD 13 per Colvin J at [64]:
There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.
EVIDENCE BEFORE THE TRIBUNAL
G-documents numbering 298 pages, lodged by the respondent, were tendered into evidence.[21] The following material from QYFM or his support person was tendered into evidence:
[21] Exhibit R1.
(a)A two-page signed statement by QYFM dated 15 March 2019, and a further one-page unsigned statement by QYFM dated 4 June 2020, collectively comprising his statement in this proceeding;[22]
[22] Exhibit A1.
(b)A copy of the RRT decision dated 16 December 1999, affirming the refusal of QYFM’s 1997 Protection Visa application;[23]
[23] Exhibit A2.
(c)A Statutory Declaration by QYFM dated 16 October 1997;[24]
[24] Exhibit A3.
(d)A letter dated 19 January 2000 from QYFM’s then lawyer to the Minister for Immigration and Multicultural Affairs;[25]
[25] Exhibit A4.
(e)A letter dated 18 August 1999 from the Victorian Foundation for Survivors of Torture Inc;[26]
[26] Exhibit A5.
(f)A letter dated 25 March 1999 from a consultant psychiatrist to QYFM’s then lawyer;[27]
[27] Exhibit A6.
(g)A 121-page bundle of online news, journal and other articles relating to Burkina Faso;[28]
[28] Exhibit A7.
(h)A hand-written letter in French dated 5 September 2019, purportedly from QYFM’s mother, with attached English translation;[29]
[29] Exhibit A8.
(i)A letter from the Fitzroy Legal Service dated 13 December 2019, attaching a translated copy of a purported extract of the Death Certificate for QYFM’s father;[30]
[30] Exhibit A9.
(j)A Prisoner Education Summary dated 4 September 2019;[31]
[31] Exhibit A10.
(k)QYFM’s Curriculum Vitae;[32]
[32] Exhibit A11.
(l)QYFM’s 2019 Protection Visa application;[33]
[33] Exhibit A12
(m)QYFM’s Marriage Certificate;[34]
[34] Exhibit A13.
(n)Corrected Birth Certificates for QYFM’s four children;[35]
[35] Exhibit A14.
(o)Work reference from a purported former employer of QYFM;[36]
[36] Exhibit A15.
(p)Four character references from purported friends of QYFM;[37]
(q)Ten-page statement of facts, issues and contentions, with accompanying enclosures from QYFM’s support person;[38]
(r)Letter dated 5 September 2019 from a prison psychologist;[39]
(s)Letter from QYFM’s eldest child, to which is attached a letter from a Victorian hospital dated 3 September 2018, regarding treatment being received by the child;[40]
(t)A journal kept by QYFM titled ‘My wife and I,’ recording his family aspirations and purported telephone conversations with members of his family during the period 24 September 2019 and 26 May 2020;[41]
(u)Letters signed by QYFM in February 2016, September 2016, September 2017, and March 2018, approving the renewal of visas for two of his children, enabling them to reside with their mother who has lived overseas since 2006;
(v)A letter from QYFM’s son dated 29 May 2020;[42]
(w)An email from a Prison Supervisor dated 12 May 2020;[43]
(x)A letter from the Victorian Housing Register, regarding one-bedroom housing options potentially available to QYFM if released;[44] and
(y)An undated letter from the Senior Prison Chaplain at the Islamic Council of Victoria.[45]
[37] Exhibit A16; A18; A19; A20.
[38] Exhibit A17.
[39] Exhibit A21
[40] Exhibit A22.
[41] Exhibit A23.
[42] Exhibit A25.
[43] Exhibit A26.
[44] Exhibit A27.
[45] Exhibit A28.
Criminal History
QYFM does not dispute the information contained in his National Police Certificate,[46] which the Tribunal accepts is an accurate record of his offending. He also does not dispute that he was arrested in Papua New Guinea (“PNG”) in 2004, and subsequently convicted of illegal entry contrary to section 16(a) of the Migration Act 1978 (PNG), for which he served three months imprisonment.[47] QYFM disputes the circumstances leading to that conviction, however, claiming he ‘quite innocently found [himself] in this situation.’[48]
[46] Exhibit R1, 25.
[47] Ibid, 199-200.
[48] Ibid, 89-90.
Sentencing Remarks
The Tribunal notes the 2013 sentencing remarks of the County Court of Victoria (“2013 sentencing remarks”),[49] and the Victorian Court of Appeal decision in November 2014 dismissing QYFM’s appeal and affirming the original sentence.[50]
[49] Ibid, 26-36.
[50] Ibid, 43-65.
Medical Evidence
The only expert medical evidence for the trauma-related psychological conditions relied upon by QYFM was written over twenty years ago. It consists of a letter from psychologist Mr Leo Sexton dated 18 August 1999,[51] and a letter from consultant psychiatrist, Dr D.S Kochar dated 25 March 1999.[52] Both were commissioned by QYFM’s then lawyer. Mr Sexton’s letter states:
‘[QYFM] appears to have trauma related memory problems, which make it difficult for him to give a consistent, chronological account of his persecution, trauma and subsequent flight from Burkina Faso.
He also seems to be oblivious of the fact that his accounts are lacking in clarity and completeness and therefore does not volunteer appropriate information to fill in the gaps.
He sometimes reports details such as dates in a confident manner but when questioned further it becomes clear he has no real basis for his certitude.
He has left important details out of his accounts to me only to refer to them later as if he had already spoken of them.
…
[QYFM] has experienced strong aversive stress reactions when discussing the murder of family members. On these occasions he slowly becomes withdrawn until he cannot speak any further.
The reasons for [QYFM’s] idiosyncratic presentation are hard to determine...’
[51] Exhibit A5.
[52] Exhibit A6.
Consultant psychiatrist Dr Kochar stated in his letter:
‘I saw [QYFM] on 22/9/98, 15/12/98 and 8/2/99 to obtain relevant historic information as to his background and to examine his mental state and condition…He saw me again on 25/3/99 to re-narrate some of the matters in the history.
… Before I saw [QYFM] he has been receiving treatment from Dr Ahmet for what appears like a severe Grief Reaction and Agitated Depression from prolonged exposure to traumatising events back in his native country. He felt marked sense of loss, felt confused, numbness and sense of going “mad and crazy” all related to the loss of his family members.
…
He told me that because of his involvement in the youth for democracy movement at the University the security police came looking for him and when they did not find him in his home they killed his father, mother and one brother and one sister, youngest brother was at another place 40 km away from home and he is the only other members of his family to survive.
Having seen all his family members being killed [QYFM] panicked and decided to flee. He said that he worked his way out to a local Port Bouet where he worked and secured some work on a German fishing boat and in one of those boats he sailed to Capetown in South Africa. He worked on the farm in South Africa for six months, after that he travelled to Pretoria and he obtained a visa for Australia on that passport and came to Australia.
He said that back home he has a wife and two children, he does not know how they are, because he has not been in touch with them. He still suffers from a sense of confusion, denial anger and sense loss and depression. He takes medication from Dr Ahmet.
By the time [QYFM] came to see me he was able to speak some English. His main language was French…
… He told me that he was still haunted by the “flashbacks and memories” and the images of the massacre of his family. He was still full of fear and was very frightened and was extremely apprehensive. He knew that if he ever went back he will be killed or tortured. He also gave me previous history of torture at the hand of special security police. He told me that he was taken by the special security police and he was beaten with hand punches and truncheons and was tortured by sleep deprivation and he was beaten on the sole of his feet, he was hosed with cold water…
From the history and information given above and from the other relevant material made available to me I am of the opinion that [QYFM] suffers from Severe Post-Traumatic Stress Disorder and he is still haunted by the “flash back and memories and images of his family massacre”…
…
It is my opinion that [QYFM] has genuine reasons to seek Refugee Status and his mental condition is consistent with the history and information given to me by him.’
(Errors in original. Emphasis added)
The Tribunal has had regard for a medical report by a forensic physician dated 27 March 2015, which was submitted by QYFM’s support person and refers to an assault against QYFM in prison.[53] The report also refers to QYFM undergoing back surgery in November 2014 while imprisoned, consisting of a L4/5 laminectomy and right discectomy to repair a herniated disk, the potential origins of which were considered by the report author.
[53] Exhibit A17, Attachment B.
QYFM’s evidence
Given his self-represented status and the likely course of questioning, the Tribunal reminded QYFM at the outset of the hearing and on other occasions, that he had a right to silence and against self-incrimination, which he said he understood. QYFM exercised those rights during the hearing and the Tribunal draws no adverse inference from the occasions that he did so.
QYFM adopted his statement as true and correct in every respect.[54] It focussed on the circumstances of his departure from Burkina Faso, and his aspiration to reunite with his wife and four children if released. He referred to his offending as a ‘one off event,’ promising it would not reoccur and stated he was ‘sorry and very remorseful for what I have done.’
[54] Exhibit A1.
QYFM said he wanted to finish his degree and ‘secure long time meaningful employment’ to provide for his family and ‘save up for a house.’ He aspires to ‘work as a chef for hotels and restaurants…[claiming to have]…already established myself as an international chef.’ He claimed the rehabilitation he had undertaken while imprisoned meant he would ‘not be a detriment to the community’ if released.
QYFM said in his statement he could not return to Burkina Faso, including because his father passed away several years ago, his siblings had ‘left…a long time ago to find life elsewhere around the world,’ he did ‘not have any address in Burkina Faso to go to,’ would not receive support from the Government or anyone else, would be ‘displaced,’ and ‘great distress and despair’ would result for his family.[55]
[55] Ibid, 4.
It is noteworthy that QYFM’s current claims about the circumstances of his departure from Burkina Faso, are substantially different to those he relied upon during consideration of his 1997 Protection Visa application. This inconsistency is discussed later in these reasons, but QYFM currently makes the following claims in his statement:
‘I was captured along with other students who were protesting on the streets against the government in Burkina Faso. In my case, officials intercepted me as I was leaving the protests heading home. I was taken to prison with other students. I was beaten, tortured on various occasions…which include beating by hands, sticks or wood, deprived of food and water for period of time, interrogations where punches or kicks followed questioning by superior if my responses didn’t please them. Despite these horrific event, I survived when other students did not.
…
In desperation my father and some supporters of the student movement paid money to prison officials to release me. With the condition for me to flee the country of Burkina Faso. If I was to be recaptured I would be killed.
The government of Burkina Faso found out I fled from prison and they searched for me, and as they could not find me they captured my father. He was tortured too. He later got sick and died from his injuries. Approximately a month or month and a half after his death, I fled the country.
I fled to the neighbouring countries of Benin…then to Nigeria…for couple of months, and finally travelled to South Africa. I stayed in South Africa approximately for 6 to 7 months to process my visa application to come to Australia.
…The horrific events that I had experienced had taken a significant toll on my health such that I was diagnosed as suffering from depression, trauma related from memory problems and (PTSD)…
I fear for my life if I go back to Burkina Faso, I fear of being recaptured, tortured or killed by the government of Burkina Faso due to my political activities like demonstrating for Democracy, Justice, Human right, social Justice, Transparency and end of corruption and killing of people and also for killing of Thama Sankara in (15 October 1997 by coup d’etat) by Blaise Compaore the Formal president of Burkina Faso.’
(Errors in original)
Activities prior to departure from Burkina Faso
During his oral evidence QYFM claimed that his father was a political activist in an organisation called the ‘CSP,’ and that he followed his father’s example. When asked why he had never previously mentioned his father’s involvement in activism, including in the context of his 1997 Protection Visa application, at the RRT hearing in 1999,[56] and at the 2019 AAT hearing, QYFM said it was because his English was very poor, and he was suffering from ‘mental health’ (sic), citing Post Traumatic Stress Disorder (“PTSD”).
[56] Exhibit A2. It was noted on p.9 of the RRT reasons that “The Applicant’s family was not interested in politics, only in the Applicant’s studies.”
QYFM said he belonged to an organisation called the ‘CNR,’ which later merged into the Committees of Defence for Revolution (“CDR”). He claimed to have undertaken activities like setting up meetings, ‘marching in the street with a megaphone,’ and writing posters. When asked what the purpose of the movements he belonged to was, QYFM said it was about ‘letting the public know what the government was up to…corruption…all those things.’ He claimed that ‘anyone who put their head up was killed.’
QYFM was asked several questions about his 1997 Protection Visa claims, including that he belonged to a different organisation (Youth for Democracy Movement (“YDM”)).[57] When asked what the YDM movement stood for, QYFM said ‘In the Thomas Sankara Party you have to sing the national anthem and if you don’t you get beaten up.’ When asked why no record of the YDM could be found by the RRT,[58] QYFM opined that maybe the name of the organisation was ‘lost in translation.’ QYFM explained he was a strong supporter of Thomas Sankara, who was President of Burkina Faso from 1983 to 1987. When it was put to QYFM that he was just seven years of age when Sankara came to power in 1983 and approximately 11 years of age when Sankara’s CDR movement was dissolved after his death in 1987, QYFM insisted he was involved in some form of political activism as a ‘pioneer’ from the age of seven, then became more ‘deeply involved’ in the CDR, which peaked while he was at university. He claimed all students were ‘forced into it’ and had to ‘abide by the pioneer movement.’ When asked about the inconsistency between his claims to the RRT in 1999 that he completed two years of his university course in Burkina Faso and started a third before fleeing, compared to his current claim that he did not even complete his first year of university because of arrest, QYFM said his current claim was correct and he ‘did not complete first year.’ He attributed the different claim in the RRT reasons to being ‘misinterpreted by the interpreter.’
[57] Exhibit A2, 8; Exhibit A3, [4]; Exhibit A4, 2.
[58] Exhibit A2, 25.
When asked by the Tribunal to explain the differences between the YDM and the different organisations he now referred to (CNR, CSP, CDR), QYFM read extracts from Wikipedia pages he tendered into evidence.[59] The Tribunal was left with the impression that he was unfamiliar at best with the information he was reading. When asked by the Tribunal to elaborate in his own words about these organisations, rather than reading from the Wikipedia pages, QYFM could not recall the names or objectives of the organisations he relied upon, stating on one occasion that an abbreviation for one movement was ‘Council of the something to do with the Revolution of the Popular Movement.’
[59] Exhibit A7.
QYFM referred on several occasions to experiencing ‘flashbacks’ as a result of his experiences prior to leaving Burkina Faso. When asked what these flashbacks related to, he claimed it was because of what happened to his family, and recurring memories of his imprisonment and torture. When asked about the significant inconsistency between his current claims and those in his 1997 Protection Visa, QYFM repudiated the 1997 account. He agreed that between 1997 and his departure from Australia in 2001, the narrative presented in those earlier protection claims was that after arriving home after a ‘particularly large meeting,’ he found his ‘father, mother and two brothers had been killed’ as a result of his activism,[60] QYFM agreed these claims were false and said they resulted variously from: false submissions made by his then lawyers without his knowledge; miscommunication because he was ‘transitioning to English’ and ‘forgetting my language;’ and because of ‘mental health’ issues arising from his traumatic experiences in Burkina Faso. QYFM suggested he may have instead been referring to the massacre of neighbours instead of his own family, which others had misinterpreted or mistranslated. When asked about the inconsistency between his current claim about fleeing Burkina Faso in 1995, and his previous answer on a Departmental Form that he fled on 5 January 1997 and came to Australia five months later,[61] QYFM insisted he had fled in 1995. QYFM was asked about a World Health Organisation Vaccination Certificate that he provided to the Department in 1997, and which was discussed at the 1999 RRT hearing, which recorded him receiving Yellow Fever and Cholera vaccinations in Burkina Faso on 2 January 1996. QYFM conceded he must have still been in Burkina Faso at that time.
[60] Exhibit A2, 5; Exhibit A3 [4]-[7]; Exhibit A4, 2.
[61] Question 41 on Form C in 1997.

It was put to QYFM that his repudiation of the 1997 Protection Visa claims for the reasons relied upon were implausible, given he had personally maintained this narrative for several years, including when assisted by French interpreters in submitting his protection visa application in 1997,[62] during the RRT hearing in 1999,[63] and in letters submitted by his lawyer to the then Immigration Minister in 2000.[64] QYFM insisted that language and translator difficulties had nevertheless resulted in miscommunication because his French language abilities quickly diminished after arrival in Australia. He also maintained that his lawyer made up these and other claims, and his capacity to understand what was being presented on his behalf was undermined by ‘PTSD, flash back (sic), and anxiety.’ When asked if he recalled having the services of a French interpreter when preparing his Statutory Declaration in 1997, QYFM could not recall. When referred to a French Interpreter’s details alongside his signature in the Statutory Declaration, QYFM still could not recall. When asked if any aspect of his Statutory Declaration was correct, QYFM stated: ‘I think it’s all mixed up. I don’t understand it very well.’ When asked if the signature on the 1997 Statutory Declaration was his, QYFM stated ‘I might have signed it, but I was unaware what I was doing properly.’
[62] Exhibit A3 (French interpreter details on Statutory Declaration).
[63] Exhibit A2, 6; 9;
[64] Exhibit A4.
When asked why there was no independent evidence of his purported involvement in the activist movements he claimed, QYFM said he did not bring any papers because ‘I was fleeing for my life.’ When it was put directly to QYFM that he made false claims about activism and his family being massacred in order to remain in Australia, he replied ‘No,’ again stating that false submissions by his lawyer, miscommunication, and mistranslation were to blame for any inconsistencies. When pressed that he had lied repeatedly about the circumstances of his departure from Burkina Faso, QYFM rejected this, claiming:
‘I cannot say I lied because my father died from it and when I fled, I saw what happened to other families and whatever came into my mind is what I was saying at the time.’
QYFM was asked about his father’s death certificate dated 1995,[65] which does not record a cause of death, and the translated letter purportedly from his mother, which stated that QYFM’s father contracted a ‘disease that led to his death.’[66] QYFM insisted his father ‘was tortured, got sick, and died from his sickness.’ When asked what specific disease caused his father’s death, QYFM claimed he had never asked his mother.
[65] Exhibit A9.
[66] Exhibit A8.
Wife and two children in Burkina Faso
When asked about the reference in his 1997 Statutory Declaration,[67] oral evidence at the 1999 RRT Hearing[68] and other materials,[69] to having left his wife and two children behind in Burkina Faso,[70] QYFM said he never had a wife or children in Burkina Faso. When challenged that his earlier evidence was very specific about having married at 18, his children were four and five years of age at the time he fled, and his wife and children lived in his ‘family house with his parents and siblings,’[71] QYFM repeated that he had ‘never been married or had kids’ at that time. When asked why these very specific claims were recorded, QYFM stated: ‘I might have told these stories…I had too many things in my mind – but I was unaware because I was suffering mental health.’ QYFM also said the references to a wife and children may have been an inadvertent claim about his brother’s wife and children, which was misunderstood by his then lawyer. Later in his evidence he claimed his English was very poor and the reference to a wife and children may have been a ‘translation problem.’ When it was put to QYFM that he had provided specific names for his children in a Departmental form,[72] he stated this information was not correct and had likely been a translation problem.
[67] Exhibit A3, 2 [8].
[68] Exhibit A2, 12.
[69] Exhibit A4, 2; Exhibit A6, 3.
[70] Exhibit A3 [8]; Exhibit A4 [2].
[71] Exhibit A2, 12.
[72] Exhibit A2, 29.
QYFM conceded the 1997 Protection Visa claims about a family massacre, a wife and two children in Burkina Faso, and the circumstances of his travel to Australia were false, again attributing this to others. QYFM claimed his current version of events was the truth.
Release from prison and travel to Australia
QYFM claimed that his father and other supporters paid money to secure his release from prison sometime in 1995, and those receiving the funds made QYFM’s release conditional on him immediately leaving Burkina Faso. When asked where he went after being released, QYFM said he passed through Benin by various means (including on a bike and on foot) for about one or two weeks. He then claimed to have spent six months hiding in Nigeria, followed by six or seven months in South Africa before securing a visa to come to Australia. It was put to QYFM that this account differed from his 1997 Protection Visa claims, in which he stated:
‘I hitch-hiked for 3 days to Abidjan in Ivory Coast. I then went to Port Bouet where I stayed for one week and managed to obtain work painting a boat. Whilst doing this work I secured work on a German fishing boat…the boat sailed to Capetown in South Africa.’[73]
[73] Exhibit A3 [7].
This was also the account he gave at the RRT hearing in 1999.[74] QYFM again attributed this inconsistency to being ‘made up by lawyers,’ claiming he never went to Cote D’Ivoire. When asked why he had failed to include his travel and residence in Benin, Nigeria, South Africa, and other countries in his 2019 Protection Visa application,[75] QYFM said he forgot, and a friend had filled in the form for him who did not understand some of the questions.
[74] Exhibit A2, 7; 10.
[75] Exhibit A12 [Q.67].
Decade spent outside of Australia between 2001 and 2011
QYFM said that after leaving Australia in September 2001, he lived for the next decade in several places, including Indonesia, Nigeria, Papua New Guinea, and the Middle East. He claimed not to have worked in Indonesia, Nigeria or Papua New Guinea because he could not find a job. He said his Australian wife supported him during this time through her work in a supermarket delicatessen.
When asked what he did while living in Indonesia, QYFM said he and his Australian-born wife had a honeymoon in Bali for about four weeks.[76] He then lived in Jakarta for approximately eight months, while waiting for a ‘call back from [Australian] immigration’ authorities. His wife returned to Australia and gave birth to their first child in June 2002.[77] QYFM claimed he was then required to relocate to Nigeria for immigration interviews relating to his Australian visa application, and lived there for approximately six to eight months, before returning to Jakarta. He said his wife visited him in Jakarta to introduce him to their child. QYFM said he relocated to PNG in 2003 or 2004 and lived there for longer than a year, because PNG was closer to Australia and would make it easier for his wife, who had their second child by this time, to visit him.
[76] The honeymoon occurred approximately a year after their marriage in February 2000. See Exhibit A13.
[77] Exhibit A14.
When asked about the reported circumstances of his arrest and imprisonment in PNG, QYFM said he could not remember running from authorities or disposing of his passport.[78] He said he entered PNG from West Papua but did not intend to enter illegally. He claimed that on crossing the border with ‘a group of tourists’ he found the crossing unattended and continued on his journey. When asked what tourist group he was referring to, QYFM stated: ‘Germans, Americans, mining people.’ He said that he was imprisoned for three months after a court appearance because he could not pay a $2,000 fine.
[78] Exhibit R1, 199.
After serving his sentence in PNG, QYFM said he flew to Indonesia, and then in about 2005, his wife sponsored his travel to a country in the Middle East, after she secured work there. QYFM claimed to have found employment with an airline and remained in the Middle East with his wife and children for five or six years until he gained approval to return to Australia in December 2011.
Return to Australia
QYFM said that after returning to Australia in December 2011, after a decade spent abroad, he lived with his mother-in-law in suburban Melbourne. He claimed to have worked part-time as a chef and undertook university study in ‘logistics’. QYFM agreed he invited his mother-in-law to accompany him on an overseas trip to Brazil, which he arranged with ‘uni colleagues’ at ‘Footscray Uni.’ He claimed that at the time he had no knowledge about collecting cocaine in Brazil prior to departing Australia, stating ‘it’s not something I planned.’
Offending
QYFM agreed he travelled to Brazil with his mother-in-law in June 2012, and that after returning to Melbourne Airport, she was found with cocaine in a backpack he had given her overseas. He pleaded not guilty but was found guilty after a jury trial. He now accepted that he committed the offence and lied to his mother-in-law to get her to travel with him to Brazil as an unwitting accomplice.
When asked why he committed the offence, QYFM said he was in ‘financial difficulties’ after returning to Australia in December 2011 and did not know what to do. He said ‘these people from uni’ precipitated his conduct, which he now very much regretted. QYFM was challenged about his motives for committing the offence, given he had only been in Australia less than six months after returning in December 2011, was working in a restaurant and studying. His movement record also disclosed that he had travelled outside of Australia within two months of returning in December 2011 (between February and April 2012), and not a lot of time had passed in trying to establish himself. QYFM said his job was only part-time and insisted he was having financial difficulties.
Physical and mental health issues
QYFM was asked about the mental health issues he claimed to have suffered as a result of trauma in Burkina Faso. He relied on the two letters dated 1999 from psychologist Mr Sexton, who then worked for the Victorian Foundation for Survivors of Torture,[79] and the letter from consultant psychiatrist Dr Kochar, which was commissioned by QYFM’s former lawyer. When challenged that the basis of Dr Kochar’s[80] PTSD diagnosis was a family massacre that never occurred, QYFM responded he was not a doctor and insisted the PTSD could also have arisen from trauma related to imprisonment and torture. When asked if there was any more recent medical evidence about the PTSD diagnosis or short-term memory loss he claimed, QYFM agreed there was none.
[79] Exhibit A5.
[80] Exhibit A6, 4.
QYFM referred to being beaten up by other inmates while imprisoned in Australia, claiming his ‘back was broken in two places.’ He said that he strictly abided by the sentencing judge’s instructions not to commit any further crimes and ‘didn’t retaliate’ when attacked by other prisoners. QYFM said he was not currently taking any medications for physical or mental health issues and was fit and able to return to full-time work if released.
Family in Burkina Faso
QYFM stated that his mother lived overseas with his wife until 2015 or 2016, then returned to Burkina Faso, where two of his siblings also permanently lived. His mother regularly visited another of his brothers, who divided his time between Burkina Faso and Ghana. QYFM said he had spoken to his mother ‘a couple of months ago,’ asking her for a copy of his father’s death certificate, which she provided.
When asked if his brothers and sister had also followed their father’s activist example, QYFM replied: ‘I cannot say they were involved that much. I was the one deeply involved. They were younger than me.’ When asked to confirm his documentary evidence that his siblings lived in Burkina Faso,[81] QYFM said they did, although one brother moved regularly between Burkina Faso and Ghana. He claimed not to have spoken to his siblings for a ‘long time’ and could not rely on them or his mother for any support if repatriated.
[81] Exhibit R1, 84.
QYFM initially claimed that his whole family had dispersed as a result of his and his father’s activism and were ‘lucky they’re alive.’ When put to QYFM that this conflicted with his evidence that his mother and siblings returned to live in Burkina Faso, he stated: ‘but there’s still unrest.’ When asked why his mother and siblings did not appear at risk from the claimed involvement of QYFM and his father in activism, QYFM replied: ‘Maybe they were not as involved like me and my father…Maybe because they stayed away from protesting.’
Australian family members and support person
In his statement, QYFM claimed:
‘I am happily married to an Australian lady and we have four children. I am in very good relationships with my family and have close contact with my children…Once I am released from incarceration my wife and I intend to stay in Australia to raise our four children…
…
I have been in constant contact with my wife and children and attached are some of the communication between them and me.’
In his oral evidence, QYFM said his wife had lived and worked in a Middle Eastern country since 2006, without once returning to Australia. He had not physically seen her since the cocaine importation venture approximately eight years ago. QYFM said they ‘used to write letters to each other’ and claimed to still be in regular telephone communication with her. He agreed his wife did not provide a statement for his current application, claiming their relationship was ‘a bit rough’ recently. He explained they were having a ‘kind of argument,’ because he had refused to sign a form authorising some of their children to live with her overseas.[82] QYFM agreed there was no direct evidence from his wife to corroborate his claims about a family reunion, but said he was ‘pretty sure she will come back’ to him. QYFM was asked whether it was possible for him to live with his wife in the country she resided in, as he had done in the past, but he said this was not his country and his ‘key intention’ was to reunify the family in Australia.
[82] Exhibit A24.
QYFM agreed that his previous claim at the 2013 criminal trial about his wife intending to return to Australia in mid-2015 and reunite with him and their children, had not occurred. He also agreed that his claim in his November 2017 Personal Circumstances Form (“2017 PCF”), that his wife was ‘currently making plans to return to Australia,’ and ‘could only remain overseas for 6 months at most,’[83] also did not occur. When asked why his latest claim about his wife’s intended return to Australia should be believed, QYFM insisted she would do so for the good of their children.
[83] Exhibit R1, 85.
It was put to QYFM that the contact journal he had provided titled ‘My wife and I,’[84] did not contain any correspondence from his wife. The Tribunal also noted a letter he had sent to his wife’s purported work address had been ‘returned to sender.’ QYFM claimed he always sent letters to that address and had been advised by one of his children recently that his wife had changed jobs. When asked about photocopies of two letters dated 2017 in his journal, which were purportedly sent to his wife for her birthday,[85] QYFM could not recall his wife’s birthday, or explain why one letter had been sent five weeks prior to her birthday and another in remarkably similar terms two months after her birthday.
[84] Exhibit A23.
[85] Exhibit R1, 100; 106.
QYFM agreed his mother-in-law had not provided a statement for his current application. He nevertheless insisted that his mother-in-law had ‘accepted [him] back into her life,’ and their relationship became ‘stronger and stronger daily.’ He claimed the catalyst for this was his realisation in 2018, at the instigation of his support person, that he needed to apologise to his mother-in-law by writing her a letter. QYFM said using his mother-in-law to import drugs into Australia for his own financial gain was ‘reckless, selfish, dangerous behaviour,’ for which he felt remorse. When asked to elaborate, QYFM explained that the airport they transited through was in the United Arab Emirates, where drug importation potentially carried the death penalty. When asked why he had denied his guilt for so long, QYFM claimed that prior to 2018 he was ‘in denial and going through mental health’ (sic).
QYFM contended that the ‘whole family is coming back together now.’ He claimed to have arranged for housing if released, tendering a letter from the Victorian Department of Health and Human Services dated 6 November 2019, which stated his application for a one-bedroom house was approved.[86] When challenged that this would be insufficient space for the family reunion he aspired to, QYFM said he could easily apply for a four-bedroom home. QYFM said he talked to his mother-in-law or the children daily, sometimes ‘three or four times’ daily and his mother-in-law visited him in prison recently. QYFM said he provided his mother-in-law and children with gift cards and other presents. He said it broke his heart to hear of his mother-in-law’s problems and wanted nothing more than to make her happy. He aspired to do more if released, including fixing up his mother-in-law’s ‘rundown’ house, assisting with bills, and purchasing her a car. He claimed his mother-in-law was sick, dependent on social security payments, awaiting an operation, and needed his assistance.
[86] Exhibit A27.
QYFM was asked about a letter from his eldest child, who turned 18 approximately two weeks after the hearing.[87] He said his support person procured the statement on his behalf. When asked why he did not ask for the statement himself, QYFM said his support person was responsible for coordinating all of the paperwork. QYFM said there were aspects of his eldest child’s life choices he disagreed with because of his Muslim faith, but he still loved his children. When asked about his child’s statement that: ‘Although personally I am not close to my father nor do I believe I ever will be. I don’t want the same relationship I have with my father for my three younger siblings,’ QYFM stated: ‘Maybe it will be better when things settle down.’
[87] Exhibit A22.
When asked about the basis of his friendship with his support person, QYFM said they were in prison together for the last five years. The support person was released recently, lived in suburban Melbourne, and continued to assist QYFM with his application.
Work history claims
QYFM was asked about inconsistencies in his work claims in Australia and PNG. This included a claim in his Curriculum Vitae (“CV”)[88] that he had been the head chef at a Melbourne restaurant between 2000-2005, which could not be the case because he was outside of Australia between 2001 and 2011. QYFM said he was ‘not good with numbers,’ claiming he nevertheless worked at this restaurant for approximately two years but could not be sure when. He agreed there was no corroborating evidence for his work claims. When asked about the inconsistency between his claim during oral evidence that he never worked in PNG, compared to his CV stating that he worked for a security service in Sabama in 2008,[89] QYFM claimed he was providing consultancy services, which he did not think needed to be included. When asked about his claim that he worked as ‘Flight Despatch Manager’ in 2011 for an international airline operating in Australia,[90] which appeared inconsistent with the fact that he only returned to Australia in December 2011, QYFM said another prisoner helped him fill in the form and that information was incorrect.
[88] Exhibit A11.
[89] Ibid.
[90] Exhibit R1, 82.
QYFM was asked about the incomplete nature of his work claims in the 2019 Protection Visa application, which did not include the work he claimed at the present hearing.[91] QYFM said someone had filled the form in for him, and they were ‘just answering to the best of our knowledge…whatever came into my head I put in there.’
[91] Exhibit A12 [Q.71].

QYFM has lived in Australia for a relatively short period of time and his serious offending occurred within months of arrival in Australia in December 2011. There is a dearth of reliable information about any positive contribution he has made, with many of his claims unsupported or exaggerated. On the totality of the evidence, QYFM’s ties to the Australian community through family and social links are relatively weak.
QYFM’s claims about past medical or psychological conditions are unsupported by recent expert evidence. During his oral evidence he stated that he has no currently diagnosed conditions, took no prescribed medications, and there is no medical reason preventing his return to work. The concerns he expressed about possible repatriation to Burkina Faso have changed over time from practical concerns about unfamiliarity, no family, lack of contacts, and poor work prospects. Now he claims his mother and siblings live in Burkina Faso, but he cannot rely on them for any support, cannot speak his first languages, and fears being identified and persecuted as a result of past activism. For the reasons expressed earlier, these claims were unpersuasive and exaggerated. QYFM has demonstrated an ability to adapt to multiple cultures and international environments after leaving Burkina Faso as an adult. On his own evidence he has lived in South Africa, Australia, Indonesia, Nigeria, Papua New Guinea, and the Middle East. Moreover, the Tribunal does not accept that QYFM’s family in Australia is in any way dependant on his contribution or shares his aspiration for immediate family reunion. There is no persuasive evidence that his family in Australia would be ‘devastated’ by his repatriation as he claims. The unpredictable nature of life in Burkina Faso, however, is likely to result in considerable challenges for QYFM if repatriated.
Having weighed all relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the decision to cancel QYFM’s visa should be revoked. That is because the primary considerations ‘Protection of the Australian community’ and ‘Expectations of the Australian community’ weigh very substantially against revocation. These considerably outweigh the primary consideration ‘Best interests of minor children’ and ‘Strength, nature and duration of ties,’ each weighing slightly in favour of revocation, and ‘Extent of Impediments if removed,’ which weighs substantially in favour of revocation.
DECISION
It follows that the Tribunal affirms the decision under review.

I certify that the preceding 212 (two hundred and twelve) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

………[sgd]…………………….
Associate
Dated: 9 July 2020

Dates of hearing: 10 and 11 June 2020

The Applicant: In person

Advocate for the Respondent: Ms Jiadi Liang

Solicitors for the Respondent: Clayton Utz

[2020] AATA 2161

9 July 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Standing

Remedies

Dates of hearing:	10 and 11 June 2020
The Applicant:	In person
Advocate for the Respondent:	Ms Jiadi Liang
Solicitors for the Respondent:	Clayton Utz