RXSH and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

RXSH and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1912 (31 May 2023)
Division:GENERAL DIVISION
File Number(s): 2023/0970
Re:RXSH
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:31 May 2023
Date of written reasons: 30 June 2023
Place:Sydney

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate of the Respondent dated 14 November 2022 that the mandatory cancellation of the Applicant’s visa not be revoked is set aside; and in substitution, the cancellation of the Applicant's Class BC - Subclass 100 Partner visa under subsection 501(3A) of the Migration Act 1958 (Cth) (the Act) is revoked under subsection 501CA(4) of the Act.
.......[SGD].................................................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
MIGRATION – mandatory cancellation of visa – Migration Act 1958 (Cth), subsection 501CA(4) – Direction No. 99 – fraud offences – domestic violence offences – protection of the Australian community – strength, nature and duration of ties to Australia – expectations of the Australian community – impact on victims – where applicant made claims engaging non-refoulement obligations – where no protection finding made – decision set aside.
LEGISLATION
Migration Act 1958 (Cth) ss 189, 197C, 198, 500, 501CA
CASES
Plaintiff/M1 -2021 v Minister for Home Affairs [2022] HCA 17
SECONDARY MATERIALS
Direction no. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
30 June 2023
INTRODUCTION

The applicant is a Liberian citizen, born in 1985.[1] In 2010 he married SH, a Liberian expatriate who was living in Australia. In 2014, he was granted a visa to come to Australia, arriving on 27 August 2014, when he was 29 years old.[2]
[1] G8, 51.
[2] G21, 115.
On 9 November 2017, he was granted a Class BC Subclass 100 Partner visa (the visa).[3]
[3] G22, 116.
On 19 October 2021, he was arrested for fraud and related offences and taken into custody.[4] He was sentenced to an aggregate sentence of 12 months imprisonment.
[4] RTB, 3.
On 23 February 2022, his visa was mandatorily cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (Migration Act) on the ground that he had a ‘substantial criminal record’ and did not pass the character test.[5]
[5] G22, 116.
On 17 April 2022, he completed the non-parole period of his sentence and was transferred to Villawood Detention Centre.[6]
[6] RTB, 10.
On 14 November 2022, a delegate of the Minister decided not to revoke the mandatory cancellation decision under subsection 501CA(4).[7]
[7] G2, 8.
The Administrative Appeals Tribunal (the Tribunal) may determine applications for review of a decision not to revoke a decision to cancel a visa.[8] On 14 November 2022, the applicant applied for review of the decision of 14 November 2022 (the reviewable decision).[9]
[8] Migration Act, paragraph 500(1)(ba).
[9] G1.
On 31 May 2023, the Tribunal ordered that the reviewable decision be set aside; and in substitution, the cancellation of the visa be revoked. I now publish my written reasons.
THE HEARING
The application was heard on 25 May. The applicant was represented by Ms M. Mamarot and the Respondent by the Australian Government Solicitors office in Perth.
The Tribunal heard from two witnesses on behalf of the applicant: Mr S. Seasay, a relative and religious mentor;[10] and Dr E. Kwok, a clinical and forensic psychologist.[11]
[10] Transcript, 25 May 2023, 38 et seq.
[11] Transcript, 25 May 2023, 47 et seq.
The applicant gave evidence and was cross-examined by an AGS solicitor, Mr Papalia, who was brought into the matter at short notice.
MATERIALS BEFORE THE TRIBUNAL
Written submissions received:
(a)Applicant’s Statement of Facts, Issues and Contentions dated 14 April 2023
(b)Respondent’s Statement of Facts, Issues and Contentions dated 11 May 2023
Applicant’s materials:
(c)Applicant’s Tender Bundle (ATB) filed on 22 May 2023
Respondent’s materials:
(d)Respondent’s Tender Bundle (RTB) filed on 11 May 2023
(e)Direction no. 99 filed on 11 May 2023
Other:
(f)Documents filed pursuant to section 501G of the Act filed on 11 May 2023
BACKGROUND
The applicant has lived in Australia since August 2014. He has lived in Melbourne, Alice Springs and most recently in Sydney.
Over the period 2014 to 2017 he was employed as a social worker by various agencies, working with young children in care, and sometimes in a psychiatric setting.[12] This is challenging work, as shown by the summons material produced by NSW Police.[13] He worked irregular hours. For example, he was called around midnight by the police to collect a ward of state from the Wollongong Police Station.[14] Some of his clients had intellectual or behavioural issues.[15] He was assaulted on one occasion by a juvenile client.[16]
[12] Applicant’s Tender Bundle (ATB), 10-13; Transcript, 25 May 2023, 32.
[13] Respondent’s Tender Bundle (RTB), 30 et seq.
[14] RTB, 35.
[15] RTB, 33.
[16] RTB, 39.
A social worker working with juveniles is required to have a police clearance. In 2017, his police clearance was cancelled due to his convictions for domestic violence.[17]
[17] Transcript, 25 May 2023, 33. ATB 5, para [24].
During 2015, the applicant and SH came under considerable stress. SH had two miscarriages.[18] They moved to Sydney for a ‘fresh start’.[19] Unfortunately, the relationship drastically deteriorated and became toxic.
[18] ATB, 3, para [9]; Transcript, 25 May 2023, 11.
[19] ATB, 3, para [8].
DOMESTIC VIOLENCE
The following descriptions are taken from the extensive police notes produced under summons and show four altercations between the applicant and SH over 11 months from 1 February 2016 to 8 January 2017.[20]
(a)First incident – 1 February 2016
[20] RTB, 30 et seq.
On 1 February 2016, around mid-afternoon, the couple had an altercation in a motor vehicle.[21] SH, who was driving, started slapping and hitting the applicant. She verbally abused his mother, who was not present. SH stopped the car and they both alighted. She continued to assault him, using the rear-view mirror as a weapon.
[21] RTB, 41.
The police were called, and SH was arrested.[22] After hearing from both parties, an Apprehended Domestic Violence Order (ADVO) was issued, naming him as the person in need of protection (PINOP).[23] After further review by a Detective Sergeant, she was charged with assault.[24] The applicant was not charged.
(b) Second incident – 1 February 2016
[22] RTB, 43.
[23] RTB, 40, 42.
[24] RTB, 41.
Later that evening, the applicant returned home from the gym. According to the police report, she refused to let him enter the bedroom and he sat down in the lounge room. She emerged from the bedroom, punched him on the side of the head and stomach, forced him to the ground and proceeded to kick him. He left the apartment and contacted the police. The applicant’s injuries were photographed.
SH was arrested and taken to Fairfield Police Station but declined to be interviewed. The note records that SH is ‘now charged with the matters before the court’. The materials before the Tribunal do not disclose either the charges or the outcome of those proceedings.[25] No charges were laid against the applicant.
[25] RTB, 40-41.
As an aside, on 13 February 2016, the applicant was assaulted at work by an aggressive youth, who was arrested by the police.[26] At this point, the applicant had been working in the care home for ward of state children for some nine months.
(c)Third incident – 4 May 2016
[26] RTB, 39.
On 4 May 2016, there was another altercation between the parties. The initial description of the incident describes the applicant as ‘the Victim’ and SH as ‘the Accused’.[27] According to this note, SH punched him, hit him over the head with a plate, and bit him on his arm and back. He told her he was calling the police and she went to the elevator. He stopped her by picking her up and putting her on the floor, but she managed to reach the lift and left the unit. The police arrived and observed the condition of the unit and the applicant’s injuries. He had bite marks on his arms and back.[28] Police conducted a recorded interview with the applicant.
[27] The same police officer made three file notes, one on 4 May, and two on 5 May: RTB 36-37.
[28] RTB, 36.
Later that day, SH attended the police station and was interviewed. She made various allegations and the police decided to arrest the applicant and serve an ADVO on him. The applicant was interviewed on 5 May 2016, and again on 7 May 2016.[29]
[29] RTB, 36-37.
The police decided not to charge the applicant. In summary, it appears that on 4 May 2016 the applicant returned home from work, having decided to leave the marriage. He entered the main bedroom and told SH that he was leaving. He asked for the car keys. In the ensuing argument, she smashed a plate over his head and bit him. He was injured in the attack. He contacted the police. She tried to leave the unit and he attempted to restrain her until the police arrived. She was arrested and during her interview made allegations against him. As a result:
Police served the apprehended domestic violence order whilst the POI was in custody. Police believe the reasons given by the POI were acceptable given the circumstances and it did not seem like he was trying to deceive police being honest about the pushing and picking her up from the elevator. Police are of the opinion if these allegations were not initially raised by [SH] upon her arrest and were only brought up whilst being formally interviewed and legal action had commenced against her they may be doubtful.[30]
[30] RTB, 37-38.
As in the previous two instances, it should be emphasised that no charges were laid against the applicant. However, on 7 May 2016, an ADVO was served on the applicant, naming SH as the PINOP.[31]
[31] RTB, 38.
Despite these incidents, the applicant and SH continued to live together. File notes record that on 9 June 2016, an ADVO was granted and served at Fairfield Local Court, naming the applicant as the PINOP, and SH as the defendant.[32] A further ADVO was made on 5 July 2016, by the Liverpool Local Court, also naming the applicant as the PINOP and SH as the defendant.[33]
[32] RTB, 33.
[33] RTB, 33.
The applicant’s work as a social worker continued to throw up challenges. On 22 October 2016, he was called out at midnight by the police to collect a troubled young girl with suicidal tendencies.[34]
(d)Fourth incident 7 – 8 January 2017
[34] RTB, 35.
The final incident occurred on 7 January 2017. SH and the applicant had an argument about the state of the flat and household chores.[35] This led to a major flareup the following day, on 8 January 2017.
[35] RTB, 33-34.
According to the Police report, the applicant and SH cut up the personal belongings of the other, using scissors. The police could not establish who commenced this vandalism. In this file note the applicant is referred to as ‘the Victim’. The Police Report continues:
Both the accused and the Victim pulled the other’s clothes out of their cupboards and drawers and these ended strewn all through the floor of the apartment. The accused and the Victim then took cooking oil and poured it over the others clothes and rooms. The police observed this later. The apartment was strewn with clothing over the floors. There was a thick yellow oil over all the clothes, floor, bed, kitchen and walls. The apartment was dangerous to walk in without slipping and requires a large cleaning effort. The accused and the Victim have then engaged in a physical altercation…. Police and ambulance were called and attended a short time later. Both the accused and the Victim had injuries requiring medical attention and were taken to Liverpool Hospital. Police attended and spoke with both parties both of whom provided police with a Domestic Violence in Chief (DVEC) recording of their statements whilst in Liverpool hospital. Both the accused and the Victim were both suffering from blows to the head requiring scans… Both were lightheaded and complaining of losing consciousness. As such police left both parties who were in different parts of the hospital to received required medical attention. Both parties told police they would attend Liverpool police station when released… Both parties are now wanted for assault ABH Breach AVO, Mal Dam. Neither has bail conditions… The accused participated in recording interview … during the interview the accused admitted to cutting and pouring oil over the personal clothes of the Victim as well as within her bedroom destroying these items. The accused is now charged with the matters before the court… At 11:30 AM the accused was arrested, cautioned and conveyed to Liverpool police station. She refused to be interviewed and charged.[36]
[36] RTB, 33-34.
This incident gave rise to charges against both parties, although details of the specific charges against SH have not been provided to the Tribunal.
Three charges were laid against the applicant. He was charged with assault occasioning actual bodily harm, contravention of an ADVO, and criminal damage. Unfortunately, the Tribunal was only provided brief sentencing remarks, without the benefit of the transcript of the hearing.
At the sentencing hearing, the applicant’s solicitor pressed by way of mitigation that he was acting under provocation, although conceding that it was unclear who started the fight.[37] The learned magistrate did not see the applicant’s actions as defensive. Indeed, he found that SH was defending herself when she hit him over the head with an iron.
HIS HONOUR: He was clocked on the head by the iron by a woman who was trying to get out of his hands from being choked.
MR MOUSSA: Certainly, your Honour.
HIS HONOUR: That was the finding at the end of the day. He was doing his best to do some serious damage. She picked up the iron and flung it over her head and clocked him on the back of the head.[38]
[37] G6, 45.
[38] G6, 44-45.
The police note of the incident records the conflicting accounts provided by each of the parties:
The Victim [RXSH] alleges that as he is destroying the accused clothing she attacked him with an iron hitting him in the back of the head. This has bled profusely. The Victim has a long shallow cut. As a result the Victim also has minor scratches to his shoulder chest lip and back he states is from the accused physically assaulted him. The accused [SH] alleges the Victim has started the hitting her on the back of the head with a hammer like fist a number of times and then picked her up by the hips and slammed her head down on the kitchen bench. The accused states as she was being assaulted she has picked up the iron and hit the Victim to the back of the head. This is caused a large cut to the Victim which has bled profusely.[39]
[39] RTB, 33-34.
I note the exchange between the applicant’s solicitor and the magistrate in which his Honour refers to ‘choking’. In sentencing the applicant, the magistrate did not refer to choking. His Honour said that she was trying to get away ‘from a fairly stressful situation’ and throwing the iron was ‘an understandable reaction’. The learned magistrate stated:
HIS HONOUR: … I heard the matter, at the end of the day I made certain findings and I don't intend to go over those all again, I accept that you and her had an argument and as a result of that argument someone's clothes started to get ripped up and then someone decided to pour oil or a liquid all over everybody's clothes, but the argument became physical to the point of significant injuries both to you and to her.
Your injury happened when she was trying as I found in the hearing to get away from what was a fairly stressful situation and threatening by clocking you over the head with the iron which he (sic) flung backwards, an understandable reaction given your behaviour and as I said I don't intend to revisit those matters.[40]
[40] G6, 46.
Unfortunately, the transcript of the hearing which would no doubt include his Honour’s findings was not made available to the Tribunal, but there is no reference in the police notes to ‘choking’. It is not the role of this Tribunal to criticise, let alone usurp, the role of a sentencing judge in another jurisdiction who has the very difficult task to determining matters of fact as a precondition to imposing a just sentence. The task is especially difficult in domestic violence cases where the court is presented with conflicting accounts. The determination of aggravating or mitigating factors, as required by s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW), is entirely a matter for the sentencing officer.
The applicant was convicted and sentenced to a 12-month Intensive Correction Order (ICO) to be served concurrently for the assault occasioning actual bodily harm and for breaching the ADVO. The Magistrate imposed a 15-month good behaviour bond for the criminal damage, which was confirmed on appeal to the District Court.[41] The other sentences were set aside on appeal. In their place, the District Court imposed a term of 12 months imprisonment wholly suspended for the assault; and a 2-year good behaviour bond for the breach.[42]
[41] G3, 34.
[42] G3, 34.
Although he avoided a custodial sentence, it was the end of his career as a social worker.
FRAUD
Unfortunately, the DV incident on 8 January 2017 is not the only blemish on the applicant’s record. In 2021, he had a small but significant part in an unlawful scheme to extract money from a third person, somewhat akin to an internet dating scam, for which he was charged with four offences, as described below. His subsequent conviction and sentence led to the cancellation of his visa.
The information before the Tribunal about this offending is somewhat scant, as Mr Papalia acknowledged.[43] There are no COPS records.[44] The Statement of Facts referred to by the magistrate was not provided to the Tribunal.[45] Mr Papalia apologised for not having a brief of evidence to put to the applicant in cross examination.[46] Ms Mamarot did not address the fraud matters in her final submissions.[47]
[43] Transcript, 25 May 2023, 71.
[44] Transcript, 25 May 2023, 29.
[45] G4, 36.
[46] Transcript, 25 May 2023, 25.
[47] Transcript, 25 May 2023, 53.
I derive the following from the applicant’s evidence before the Tribunal, and the magistrate’s remarks.[48]
[48] G4, 35.
The applicant was contacted by ‘Dixon’, a person he knew from Liberia. Dixon asked him to meet ‘his wife’ and receive a parcel of money from her. The applicant was told that she had been ‘blocked’ by Western Union. He was told that she would call him by the alias ‘Owen’. Dixon gave the woman the applicant’s contact details and she contacted him. They agreed to meet at the airport. When they met, she gave him an envelope containing $14,000 in cash. He sent the money to Dixon and did not keep any of it. Sometime later, he was asked to meet the woman again at a hotel where he would be given a larger amount. He was interrupted by plain-clothes police before he could do so. He ran away but was caught. He was arrested and taken into custody on 19 October 2021.[49]
[49] RTB, 1.
His belief that the woman had been blocked by Western Union, which he found credible because he had himself been blocked, is implausible. I do not think that at the time he genuinely believed for a moment that Dixon was acting in the woman’s best interests.
Despite the lack of a police brief, I am satisfied that the applicant knew that he was involved in an unlawful enterprise. If he did not know it, he acted with wilful blindness. He said that his actions were a ‘mistake’. He was contrite and said that he regretted his involvement, but I do not think he was mistaken about the nature of the enterprise.

The applicant suggested that Dixon had taken advantage of him because he was known to have mental issues. He was apparently remorseful. He said that he did the wrong thing by:
… taking money from someone that someone send me to collect money from someone, and I didn’t even get to find out, and I don’t know what’s the reason, and I collect the money from her and sent it. If it was my – my mother, I wouldn’t have done that. And I wouldn’t have done the wrong thing, the wrong thing. And if you had asked me to take it back, I would have do it differently.[50]
[50] Transcript, 25 May 2023, 17.
On its face, it appears that he played a small but significant role in a scheme designed to extract money from vulnerable people, mostly women. As a result of this activity, he was charged with four offences, as follows:
Sequence 1
(a)Dishonestly obtain financial advantage etc by deception
(b)Dishonestly obtain financial advantage etc by deception (attempt)
Sequence 2
(a)Participate criminal group contribute criminal activity
(b)Resist officer in execution of duty
On 17 February 2022, the applicant was convicted and sentenced in the Central Local Court to an aggregate term of 12 months imprisonment with a six-month non-parole period commencing on 18 October 2021 and concluding on 17 April 2022. His sentence expired on 17 October 2022. The sentences were confirmed by the Downing Centre District Court of New South Wales on 6 April 2022.
As noted above, on 23 February 2022, his visa was mandatorily cancelled on the ground that he had a ‘substantial criminal record’ and did not pass the character test.[51]
[51] G22, 116.
FINDING ON THE CHARACTER TEST
A person sentenced to a term of imprisonment of 12 months or more has a ‘substantial criminal record’ pursuant to paragraph 501(7)(c) of the Act and therefore does not pass the character test under paragraph 501(6)(a).
The Nationally Coordinated Criminal History Check (NCCHC) report, dated 13 May 2022, records that the Applicant was convicted before the Central Local Court of New South Wales on 17 February 2022 for three offences under the Crimes Act 1900 (NSW) (the Crimes Act): fraud,[52] attempted fraud,[53] and participation in a criminal group.[54]
[52] Crimes Act, section 192E.
[53] Crimes Act, section 344A provides that: ‘(1) Subject to this Act, any person who attempts to commit any offence for which a penalty is provided under this Act shall be liable to that penalty.’
[54] Crimes Act, section 93T: G3, 32-33.
The applicant was sentenced to an aggregate term of 12 months imprisonment with a six-month non-parole period commencing on 18 October 2021 and concluding on 17 April 2022. His sentence expired on 17 October 2022. The sentences were confirmed by the Downing Centre District Court of New South Wales on 6 April 2022. Any doubt as to whether the aggregate sentence was a ‘sentence’ for the purposes of section 501(7)(c),[55] was removed with retrospective application by the Migration Amendment (Aggregate Sentences) Act 2023 (Cth), which came into effect on 17 February 2023.
[55] See Pearson v Minister for Home Affairs [2022] FCAFC 203 (Pearson).
The Applicant does not dispute the accuracy of the information contained in the NCCHC record.
I therefore find that Applicant does not pass the character test.
ISSUE
Subsection 501CA(4) of the Act provides:
(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.
It is not in dispute that the Applicant fails the character test as outlined above.
On 28 February 2022, he made representations to the Minister to revoke the mandatory cancellation decision.[56]
[56] G9, 54.
I then turn to consider whether there is ‘another reason’ why the original decision to cancel his visa should be revoked under subparagraph 4(b)(ii) of the Act.
EXERCISING THE DISCRETION UNDER SUBSECTION 501CA(4)
Section 499 of the Act provides that the Minister may give written directions to a person or body exercising powers and functions under the Act, where the directions relate to the performance of those functions or exercise of those powers. Direction no. 99 (the Direction), enacted under section 499 and commencing on 3 March 2023, provides a range of considerations to which the Tribunal should have regard in exercising its discretion under subsection 501CA(4).
Part 1 of the Direction provides a set of principles that the Tribunal should have regard to when applying these considerations. Paragraph 5.2 of the Direction provides:
(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 noncitizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Informed by these principles, the Tribunal must approach its statutory task by applying Part 2 of the Direction. Part 2 includes five primary considerations in paragraph 8 and four other considerations in paragraph 9. Each of these considerations are considered in detail below, to the extent they are relevant. Paragraph 7 of the Direction provides some guidance as to how the Tribunal is to weigh each consideration. For example, primary considerations should generally be given greater weight than the other considerations; and one or more primary considerations may outweigh other primary considerations.
PRIMARY CONSIDERATIONS
The Protection of the Australian community
The Direction provides:
8.1 Protection of the Australian community
(1)When considering protection of the Australian community, decision-makers should keep in mind 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. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(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.
The nature and seriousness of the applicant’s domestic violence offences has been considered in detail above.
The applicant stands convicted of an assault occasioning actual bodily harm against his wife SH committed on 8 January 2017, more than six years ago. I note that crimes of a violent nature against women are viewed very seriously, regardless of the sentence imposed. I also note that acts of family violence are viewed very seriously, regardless of whether there is a conviction for an offence, or a sentence imposed.
I note that this was the first and only occasion giving rise to domestic violence charges against the applicant, and that there had been three previous altercations during 2016 in which his wife SH was charged, and he was not. Moreover, it is probable that she was the original aggressor in cutting up his clothes and spoiling them with oil. This was the point at which he should have walked away. Instead, he threw restraint to the wind and responded in kind.
In relation to the fraud offences, the learned magistrate described his offending as follows:
HIS HONOUR: RXSH has pleaded guilty to four sequences (sic)[57] before the Court. I have had regards to the facts. A large portion of the facts describe, I guess, an initial relationship between what would be described as a co-offender and the complainant. It dates back to 2013. There is no suggestion in the facts that he was involved in that initial stage, and I sentence him on the basis that he became involved in 2021 for these charges. It is clear, though, in the facts that a relationship was established between the co-offender - called Dixon - and that complainant; a significant amount of cash was handed over and at a later stage in 2021, that is when the accused became involved.
The initial meet was at the airport. He went by the name of "Owen"; met him, handed over $14,000 and there was further attempts throughout the facts to try and obtain further funds from the victim. There was a promise of a suitcase containing a significant amount of money. There was washing of currency, and the victim was given some US cash and there was some longwinded discussion in the facts sheet in relation to that. Ultimately, there was a further meet that was arranged where the accused met the victim on behalf of what the facts describe as a person called "Dixon", and he went to Officeworks prior to that to get some black paper, clearly to be consistent with the washing of the money.
It sounds all quite farfetched to me. Ultimately, there was an attempt made and there was a search warrant that was issued. He was being watched, the attempt was of a more significant amount of $62,000, and he was arrested at the scene. I made a comment that it seems very farfetched, but I am not in any way being critical of the victim. Often with matters such as these, to an outsider reading a set of facts who has not lived through the experience, it would seem farfetched and quite difficult to understand why someone would get themselves involved.
But there was a longstanding - it would seem on the facts from 2013, contact with a person called "Dixon" - obviously a lot of groundwork went into that, for that relationship to form. And things that may be obvious to someone on the outside becomes less obvious for someone on the inside and unfortunately, the victim got herself scammed as a result of this conduct.
RSXH has a limited record which involves, in essence, one matter.
He was given a suspended sentence ultimately for that. He survived the suspended sentence. Of note, it was for conduct of violence. It did not relate to any type of fraud offence. That is a factor I can have regard to because issues of specific deterrence may loom large if someone has had an ongoing history of like offences.[58]
[57] The reference to four sequences is puzzling. There were only two sequences before the Court, Sequence 1 relating to the substantive fraud offence and the attempted fraud, and sequence 2 related to the participation in a criminal group and resist officer in execution of duty.
[58] G4, 35, 38-39.
I note that the Australian Government and the Australian community regard crimes committed against vulnerable members of the community to be serious. The applicant’s reference to how he would feel if the victim of such a scam was his mother suggests that she belonged to an older, more vulnerable demographic.
I have noted the sentences imposed for the domestic violence offences, and the sentences imposed for the fraud related offences, which led to the cancellation of his visa. The latter barely reach the threshold for mandatory visa cancellation.
The frequency of offending cannot be regarded as high. As noted by the magistrate, each of the set of criminal offences are of a quite different character. They are also spaced well apart. The first set occurred on 8 January 2017 and marked the end of his marriage. The second set of fraud related offences occurred on or about 17 October 2021, well over four years later. There is no trend of increasing seriousness, and the offences are of a different nature.
There is nothing to suggest that the applicant has provided false or misleading information to the Department, or that he has re-offended after being formally warned. He did not receive any communication from the Department after his offending in January 2017.
8.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal is required to have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. 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.
I turn to assessing the risk that may be posed by the applicant to the Australian community. In this exercise the Tribunal is required to consider, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the non-citizen reoffending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The nature of the harm to individuals from domestic violence is self-evident. This Tribunal has echoed on many occasions the sentiments of the District Court judge when sentencing the applicant:
HIS HONOUR: Every single day in these courts people appear, charged with what has generally been called domestic violence. What it means is that people come to this Court having been charged with doing something to a person with whom they are in a relationship, something that they would not do to somebody who is not in that relationship if they met them on the street or it they met them at a party or they met them at the hotel. They think that they can do whatever they like because that person is a party to their life, they think they can be excused for it.[59]
[59] G5, 42.
As to the fraud offences, it appears that he played a small but significant role in a scheme designed to extract money from vulnerable and sensitive people, mostly women. According to a 2023 report by the Australian Federal Police, while women made fewer than half of the reports about scams, they experienced the biggest financial loss, making up 68 per cent of losses totalling $27 million. People aged 65 and over are also a common target for scammers, submitting more than 600 reports with a total financial loss of nearly $13 million.[60]
[60] When love hurts: a warning to lonely hearts | Australian Federal Police (afp.gov.au)
In considering the question of risk, I note the report by Dr Kwok, which stated:
In relation to RSXH’s risk of other serious offending, I note that he does not have an extensive criminal history. Based on his employment history and engagement in volunteer work in the community, he does not impress as an individual who is inherently antisocial in attitude or behavioural patterns. He also does not have a history of drug and alcohol problems. RSXH accepted responsibility for his offending behaviours. If he is permitted to return to the community, he stated that he would like to continue his studies and gain employment. He has strong prosocial support in the community through his extended family and the Liberian community. Overall, it is my opinion that RSXH has a low risk of engaging in further criminal conduct.[61]
[61] ATB, 29, [32].
I accept this assessment, which appears to be borne out by the historical information contained in the materials before the Tribunal.
On the question of rehabilitation, I note that the applicant has completed several courses whilst in prison.[62] These include:
[62] ATB, 65-74.
(a)Emotional Intelligence Course 18 Dec 2022
(b)Resources Management 101 Course 01 Dec 2022
(c)Leadership and Supervision 101 Course 10 Nov 2022
(d)Depression Management Course 17 Oct 2022
(e)Anxiety Therapy 101 Course 17 Oct 2022
(f)Stress Management Course 16 Oct 2022
(g)Anger Management Course 15 Oct 2022
(h)Drug and Alcohol Abuse 101 Course 15 Oct 2022
(i)Motivational and Public Speaking 101 Course 15 Sept 2022
(j)Domestic Violence 101 Course 13 Oct 2022
(k)Global Diplomacy-Diplomacy in Modern Word from University of London
I also note that he has received counselling from the New South Wales Service for Treatment and Rehabilitation of Torture and Trauma Survivors (STARTS).[63] He attended 16 sessions between July to November 2022 and further treatment from 2022.[64] I also note the IHMS records of counselling.[65] It appears that he attended most sessions.
[63] ATB, 37-62.
[64] ATB, 123-146.
[65] ATB, 32.
I am satisfied that the applicant has participated in genuine rehabilitation programs.
I also note that he was released into the community at the end of 2012 because of the Pearson decision. His visa was re-cancelled on 17 February 2023 by reason of the Aggregate Sentences Act. When his visa was again cancelled, he reported for detention. The period he was in the community was entirely uneventful.
The applicant’s solicitor contends that the Tribunal should consider the Applicant’s traumatic and destructive upbringing in weighing this consideration. She suggests that his upbringing (which is discussed more fully below) may have contributed somewhat to his criminal conduct, while not suggesting that it justifies the very serious nature of his offending.
The Respondent contends that the nature and seriousness of the applicant’s conduct weighs heavily against revocation,[66] that there is a real risk of reoffending and that the damage this would inflict on the Australian community presents an unacceptable risk.[67] The applicant’s solicitor also concedes that this consideration weighs against the revocation of the visa cancellation.
[66] RSFIC, para 31.
[67] RSFIC, para 35.

The applicant has been a model detainee and inmate. Taking account of his record in prison, his obvious repentance, and his pro-social conduct over many years before losing his career as a social worker, I do not accept the Respondent’s submission that there is a ‘real risk’ of reoffending.[68] I find that the prospect of recidivism, either in respect of domestic violence, or fraud, is low to very low. His participation in fraud was an act of folly which he clearly regrets. I consider it unlikely that his relationship with SH will be rekindled or that such behaviour will be repeated with anyone else.
[68] RSFIC para 35.
I find that the protection of the Australian community weighs against the applicant, but it does not weigh heavily against him.
8.2 Family violence committed by the non-citizen
The Direction states that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.
The applicant has been convicted of offences that involve family violence and therefore this consideration applies.
The Tribunal is required to consider certain factors where relevant, including:
a)    the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)    the cumulative effect of repeated acts of family violence;
c)    rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)    Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non citizen’s migration status
Both the applicant and the Respondent concede that this consideration weighs against the applicant. The Respondent states that although this is a ‘one off’, it was nonetheless very serious and resulted in injuries against a partner. This consideration should weigh heavily against revocation.[69]
[69] RSFIC, para 39.
I accept that the applicant’s behaviour was criminal and that when he lost control, he inflicted serious harm on SH’s property and person. The magistrate found, in sentencing the applicant, that at that time SH was acting in self-defence. However, as previously noted, the applicant was attacked by SH on at least three prior occasions, and on each occasion, received injuries. On 4 May 2016, he received bites and blows on various parts of his body. On each of these occasions SH was charged. On none was he charged. His conduct on 8 January 2017 was, by comparison with his previous restraint, out of character. He was the subject of an ADVO issued for his protection. His loss of control, although lamentable, is somewhat mitigated if seen through this lens.
I accept that this consideration weighs against the applicant. However, I do not consider that it weighs heavily against the applicant, for the reasons given above in discussing the nature of his offending.
8.3 The strength, nature and duration of ties to Australia
The applicant has significant ties in this country; indeed, most of his extended family live here.
He has lived in Australia since 27 August 2014, after arriving at the age of 29. He has spent the last 9 years and 4 months residing in Australia on a permanent ongoing basis.
The applicant has an admirable record as a community worker. He has worked with youths and the disabled.[70] This commenced as soon as he arrived. He told the Tribunal that he worked as a social worker for about six years. In 2014, he worked for BushMob, an organisation in Alice Springs that runs a residential facility for vulnerable children.[71] In Sydney, he worked for various agencies, including Marist Youth Care, Anglicare, Lifestyle Solutions and Life without Barriers.[72] This is a tangible tie to the community.
[70] ATB, 10-14.
[71] ATB, 12.
[72] Transcript, 25 May 2023, 32.
I note the various letters of support that have been provided to the Tribunal from friends and associates and family members. I note the letter from MS who states that ‘RSXH has been an integral part of the family providing emotional support …’[73]
[73] ATB, 96.
The Respondent concedes that due to his ties and connections, this consideration should be given some weight in favour of revocation.[74]
[74] RSFIC, para 41.
I find that this consideration weighs strongly in favour of revocation of the mandatory consideration.
8.4 Best interests of minor children in Australia affected by the decision
The applicant’s solicitor concedes that the applicant does not have biological children in Australia, nor does he play a parental role for any children in Australia. He does, however, have meaningful relationships with his nephews and nieces. He lived with them and participated in their daily care.
The applicant lists seven children in his Personal Circumstances Statement:
·MK, female, aged 5 years
·OK, male, aged 7 years
·AK, male, aged 10 years
·AS, female, aged 16 years
·SS, male, aged 4 months
·MS, female, aged 7 years
·AS, male, aged 14 years
The applicant lived with his uncle and his family including the children – AS, MS, SS and AS from 2019 to 2021. He was present and active in their lives and still maintains a healthy presence in their lives.
Given the applicant has contact and connection with these children, this consideration should be given some weight in favour of revocation.[75] I agree with the Respondent that this consideration should weigh in favour of the visa cancellation being revoked.
[75] RSFIC, para 44.
Expectations of the Australian Community
This consideration states robustly:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2)In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
a)acts of family violence…
The applicant’s solicitor conceded that this consideration weighs against the applicant, and the Respondent contends that it weighs strongly against revocation.[76]
[76] RSFIC, para 48.
There is no doubt that the applicant has committed two sets of offences which attract widespread and justified opprobrium in the community.
With regard to his DV offending, I note that at the time of his offending on 8 January 2017, he was identified as a person in need of protection. It is apparent that SH had assaulted him and been charged on at least three previous occasions. An assessment of his behaviour, in relation to the expectations of the Australian community, should not exclude this relationship history.
There is, however, no excuse for his participation in the fraud offences which led to his visa cancellation.
I find that this consideration weighs heavily against revocation of the mandatory cancellation.
CONCLUSIONS OF PRIMARY CONSIDERATIONS
In summary, my findings in relation to the primary considerations are as follows:
·PC1 Protection of the Australian Community - against the applicant, but not heavily.
·PC2 Family violence committed by the non-citizen - against the applicant, but not heavily.
·PC3 The strength, nature and duration of ties to Australia – heavily in favour of the applicant.
·PC4 Best interests of minor children in Australia affected by the decision – slightly in favour of the applicant.
·PC5 Expectations of the Australian Community – heavily against the applicant.
Thus, three of the primary considerations weigh against the applicant, but only PC5 weighs heavily. Of the remaining two primary considerations, one weighs heavily and the other lightly in his favour. PC3 and PC5 weigh heavily in opposite directions. PC1 and PC2 are against the applicant, but it is not clear that they outweigh PC4. It is therefore necessary to consider the ‘other’ considerations.
OTHER CONSIDERATIONS
9.1 Legal consequences of decision under section 501 or 501CA
Paragraph 9.1(1) provides that decision-makers should be mindful that unlawful non-citizens are liable to removal from Australia as soon as reasonably practicable in accordance with section 198, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen.
The term ‘non-refoulement obligations’ is defined in section 5 of the Migration Act as follows:
"non-refoulement obligations" includes, but is not limited to:
(a)non-refoulement obligations that may arise because Australia is a party to:
(i) the Refugees Convention; or
(ii) the Covenant; or
(iii) the Convention Against Torture; and
(b)any obligations accorded by customary international law that are of a similar kind to those mentioned in paragraph (a).
Paragraph 9.1(2) explains that 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, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
Paragraph 9.1(3) provides that international non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
The applicant has made what appears on its face to be a non-refoulement claim. In his Statement dated 13 April 2023 he states:
Why I Cannot Go Back to Liberia
30. In 2020, I went back to went to Senegal Dakar to visiting my sick grandma who passed away. I planned to have a quick tour in Liberia. In my second week I was talking to some boys in my community. They told me that there was talk that I was as a Child Soldier. They told me that I might be attacked as a form of retaliation against me for any contributions during the civil war. I was scared and knew I wasn’t safe.
31. I initially planned to stay for another week. I left early in the morning to Sierra Leone. I learned that there are people who take revenge of those who were part of the rebel militia.
32. I do not feel safe going back to Liberia anymore. I left as soon as possible because I have heard stories of other Child Soldiers who were tortured and killed by people who wanted revenge against the rebel militia. The police failed to protect them.
The applicant is not currently the subject of a protection finding. Therefore, paragraph 9.1.1 of the Direction, which applies to non-citizens who are subject to a protection finding, does not apply.
Paragraph 9.1.2 applies to non-citizens who are not covered by a protection finding.
Paragraph 9.1.2(1) provides that where a non-refoulement claim is made, it must be considered. Paragraph (2) states in summary that where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501CA stage to consider non-refoulement issues ‘in the same level of detail’ as those types of issues are considered in a protection visa application. Having considered the person’s representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed.
The Direction appears to accord with the decision of a majority of the High Court of Australia in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17. The majority stated:
Decision‑makers' approach to non‑refoulement
28 Where the representations do not include, or the circumstances do not suggest, a non‑refoulement claim, there is nothing in the text of s 501CA, or its subject matter, scope and purpose, that requires the Minister to take account of any non‑refoulement obligations when deciding whether to revoke the cancellation of any visa that is not a protection visa.
29 Where the representations do include, or the circumstances do suggest, a non‑refoulement claim by reference to unenacted international non‑refoulement obligations, that claim may be considered by the decision-maker under s 501CA(4). But those obligations cannot be, and are not, mandatory relevant considerations under s 501CA(4) attracting judicial review for jurisdictional error – they are not part of Australia's domestic law.
30 Where the representations do include, or the circumstances do suggest, a claim of non‑refoulement under domestic law, again the claim may be considered by the decision‑maker under s 501CA(4), but one available outcome for the decision-maker is to defer assessment of whether the former visa holder is owed those non‑refoulement obligations on the basis that it is open to the former visa holder to apply for a protection visa. (Citations omitted)
The issue of non-refoulement, although raised by the applicant’s statement referred to above, was not the subject of cross-examination during the course of the hearing, and the Tribunal heard very little about the matter. The applicant ‘reserved its position’ regarding this consideration.[77]
[77] ASFIC, para 50.
As noted above, the present case is finely balanced. It is hard to imagine circumstances in which the present consideration might count against the applicant. It will invariably count, if at all, in an unlawful non-citizen’s favour.
Therefore, a practical means of deciding the present case is to decide the overall effect of all relevant considerations excluding those arising under paragraph 9.1.2. I therefore provisionally accept the Respondent’s submission that this consideration should be given neutral weight.[78]
[78] RSFIC, para 55.
I turn to the remaining ‘other’ considerations.
9.2 Extent of impediments if removed
Paragraph 9.2.1 provides that decision-makers must consider the extent of any impediments that the noncitizen 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.
The applicant submits the following:
According to the World Food Programme Liberia Annual Country Report 20222 Liberia is one of the poorest countries in the world. It is ranked 178 out of 191 countries in the United Nations Development Programme (UNDP) Human Development Index. Poverty is widespread with an estimated two million Liberians living below the poverty line. More than half of the population cannot meet their basic food needs. The level of hunger is severe, with a score of 33.3 and ranking 110th out of 116 countries. Chronic food insecurity remains a critical challenge for human capital development.
As such even with the Applicants age and health it is questionable whether he would be able to maintain basic living standards given the state of the country.[79]
[79] ASFIC, para 51.
I note that the Respondent submits that this consideration weighs ‘somewhat’ in favour of revocation.[80] However, I agree with the assessment of the applicant’s solicitor as stated above.
[80] RSFIC, para 58.
I therefore consider that this consideration weighs moderately in favour of revocation of the visa cancellation.
9.3 Impact on victims
The Direction provides:
(1) Decision-makers must consider the impact of the … decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen … who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
Under this consideration the Tribunal must consider the impact on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims. There is no evidence before the Tribunal as to the impact of the decision of the Tribunal to set aside the reviewable decision.
I consider that OC3 is of neutral weight.[81]
[81] RSFIC, para 60.
9.4 Impact on Australian business interests
There is no evidence before the Tribunal indicating that the applicant’s return to Liberia would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
I consider that OC4 is of neutral weight.[82]
[82] RSFIC, para 60.
CONCLUSION
There is no doubt that the applicant’s life took a turn for the worse following his conviction for domestic violence offending. I am satisfied that this offending arose under circumstances that are unlikely to be repeated. My assessment is that that the prospects of recidivism are very low.
Considering the net effect of all primary considerations, as well as the extent of impediments that the applicant would face if returned to Liberia, I am satisfied that the reviewable decision should be revoked. In reaching this conclusion, I have also been influenced by the references received on behalf of the applicant, and the very significant contribution made to the community when he was able to work as a youth social worker. In my view, taken together, these constitute ‘another reason’ why the decision not to revoke the cancellation of his visa should be set aside. It is hoped that at some point in the future his police clearance will be reinstated.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate of the Respondent dated 14 November 2022 that the mandatory cancellation of the Applicant’s visa not be revoked is set aside; and in substitution, the cancellation of the Applicant's Class BC - Subclass 100 Partner visa under subsection 501(3A) of the Migration Act 1958 (Cth) (the Act) is revoked under subsection 501CA(4) of the Act.

I certify that the preceding 135 (one hundred and thirty-five) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

.........[SGD]...............................................................

Associate
Dated: 30 June 2023

Date(s) of hearing: 25 May 2023

Solicitors for the Applicant: Ms M. Mamarot, Southwest Migration and Legal Services

Solicitors for the Respondent: Mr J Papalia, Australian Government Solicitor

[2023] AATA 1912

31 May 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Standing

Date(s) of hearing:	25 May 2023
Solicitors for the Applicant:	Ms M. Mamarot, Southwest Migration and Legal Services
Solicitors for the Respondent:	Mr J Papalia, Australian Government Solicitor