RZMW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 1000

RZMW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1000 (29 April 2020)
Division:GENERAL DIVISION
File Number: 2018/5491
Re:RZMW
APPLICANT

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

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:29 April 2020
Place:Melbourne

The Tribunal affirms the decision under review.
[sgd]...............................................................
Senior Member A. Nikolic AM CSC
MIGRATION – Mandatory visa cancellation – citizen of Liberia – Class XB Subclass 200 visa – failure to pass good character test – 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)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Criminal Code Act 1899 (Qld)
CASES
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Ayoub v Minister for Immigration and Border Protection [2015] FCAFC
BKS18 v Minister for Home Affairs [2018] FCA 1731
BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CFT15 v Minister for Immigration and Border Protection [2016] FCA 283
DOB18 v Minister for Home Affairs [2018] FCA 1523
DOB18 v Minister for Home Affairs [2019] FCAFC 63
Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333
FYBR v Minister for Home Affairs [2019] FCAFC 185
Greene v Assistant Minister for Home Affairs [2018] FCA 919
Griffin v Pantzer [2004] FCAFC 113; (2004) 137 FCR 209
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
HVLC v Minister for Home Affairs [2019] FCA 616
Jagroop v Minister for Immigration and Border Protection [2016] 241 FCR 461
Kohli v Minister for Immigration and Border Protection [2018] FCA 540
Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 251 CLR 196
Minister for Home Affairs v Omar [2019] FCAFC 188
Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213
Omar v Minister for Home Affairs [2019] FCA 279
RZMW v Minister for Home Affairs [2019] FCA 1761
RZMW and Minister for Home Affairs [2018] AATA 4620
Turay v Assistant Minister for Home Affairs [2018] FCA 1487
Viane v Minister for Immigration and Border Protection [2018] FCAFC 116
SECONDARY MATERIALS
Direction No. 75 – Refusal of Protection Visas Relying on Section 36(1C) and Section 36(2C)(b)
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
Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth)
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
29 April 2020
INTRODUCTION

The Applicant seeks review of a decision, made under s 501CA(4) of the Migration Act 1958 (“the Act”), not to revoke the mandatory cancellation of his Refugee (subclass 200) visa (“the visa”).
APPLICANT’S IDENTITY
An order under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AATA”) was previously made in respect of this application, thereby prohibiting the publication of any information tending to identify the Applicant or members of his family. The Tribunal has determined the order should remain undisturbed and the anonym “RZMW” will continue to be used. Certain details will be redacted, including the identity of witnesses and the names and information of other persons who might identify RZMW.
The hearing was held in Melbourne on 15 and 16 April 2020. All participants in the proceeding appeared by video or telephone as a result of the COVID-19 public health emergency. The Applicant was represented by Mr Hamish Glenister of counsel. The Minister was represented by Mr Matthew Hawker from Sparke Helmore Lawyers. The Tribunal expresses its thanks to Mr Glenister for acting for RZMW on a pro bono basis.
For the reasons that follow, the Tribunal affirms the decision under review.
BACKGROUND
The background to this application is as follows:
(a)RZMW is a 33 year old citizen of Liberia.[1] He arrived in Australia in late 2004 at the age of 17 with his mother, two brothers and three sisters, as the holder of a refugee visa;[2]
[1] Exhibit R1, 4.
[2] Ibid, 20.
(b)Between 2007 and 2018, RZMW was convicted of numerous criminal offences in Australia, and has received several sentences of imprisonment;[3]
[3] Ibid, 107-112.
(c)In 2013 RZMW received multiple sentences of imprisonment, including one of two-and-a-half years duration, which was imposed globally for one count of dangerous operation of a motor vehicle and three counts of failure to stop a motor vehicle;
(d)Later in 2013, the then Department of Immigration and Citizenship notified RZMW that because of his criminal convictions, consideration was being given to cancelling his visa.[4] After reviewing RZMW’s representations, immigration authorities decided not to cancel his visa, but issued the following formal warning:[5]
‘…visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered.’
(e)In January 2017, RZMW was sentenced to six months’ imprisonment for wilful damage. He was immediately released on parole, however breached parole later that day and was again taken into custody;[6]
(f)In February 2017, RZMW’s visa was mandatorily cancelled by a delegate of the Minister.[7] RZMW was invited to make representations about revoking the visa cancellation, which he provided to immigration authorities.[8] His representations were accepted as being made in accordance with the Act;[9]
(g)In July 2017, RZMW was taken into immigration detention;[10]
(h)In March 2018 RZMW was convicted of two counts of common assault, one count of assault occasioning bodily harm, and one count of contravening a domestic violence order. These convictions arose from violent conduct against his de facto partner, at which time RZMW was the subject of a domestic violence order and on parole for earlier offending;[11]
(i)On 10 May 2018[12] and 20 August 2018[13], RZMW was provided with further information the Department considered potentially relevant to consideration of his visa status, to which he subsequently responded;[14]
(j)On 18 September 2018, a different delegate of the Minister decided under s 501CA(4) of the Act not to revoke the visa cancellation decision;[15]
(k)On 24 September 2018, RZMW asked the Tribunal to review the non-revocation decision.[16] On 11 December 2018 (“2018 hearing”) the Tribunal, differently constituted, affirmed the cancellation decision;[17] and
(l)RZMW sought judicial review in the Federal Court of Australia. On 31 October 2019 the Federal Court quashed the Tribunal’s decision giving rise to these proceedings.[18]
[4] Ibid, 190.
[5] Ibid, 200-202.
[6] Ibid, 107.
[7] Ibid, 18-74.
[8] Ibid, 220.
[9] Ibid, 90 [3].
[10] Ibid, 203.
[11] Ibid, 114.
[12] Ibid, 222-224.
[13] Ibid, 228-229.
[14] Ibid, 226-227; 231-240.
[15] Ibid, 86-102.
[16] Ibid, 4-15.
[17] RZMW and Minister for Home Affairs [2018] AATA 4620.
[18] RZMW v Minister for Home Affairs [2019] FCA 1761.
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the AATA and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction to review decisions of a delegate of the Minister under s 501CA not to revoke a visa cancellation.
The object of the statute of which s 501(3A) is a part, is to regulate, in the national interest, the presence in Australia of non-citizens, and the removal or deportation from Australia of non-citizens whose continuing presence is not permitted by the Act (ss 4(1) and 4(4)). As the High Court stated in Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 at [45]:
Section 501(3A) constitutes a legislative judgment that a class of persons identified by two features – offending and imprisonment – are not to remain in Australia. This is consistent with the object of the Migration Act, namely, to regulate the coming into and presence in Australia of non-citizens.
(Footnote omitted).
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 the person does not pass the character test by virtue of having a substantial criminal record, and the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth or a State or Territory.
The ‘character test’ is defined in s 501(6) of the Act and refers to a range of character-related matters that the Minister or their delegate may have regard to in deciding whether to refuse or cancel a visa (or revoke a mandatory cancellation of a visa). 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 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.
Section 501E(2)(a) of the Act provides:
(2) Subsection (1) does not prevent a person, at the application time, from making an application for:
(a) a protection visa;
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. Section 499(2A) mandates that a body having functions or powers under the Act, such as the Tribunal, must comply with the Direction.[19]
[19] BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104, at [9] per Collier, Flick and Perry JJ.
The previous decisions in this matter by a delegate of the Minister and the Tribunal, were made when Ministerial Direction 65 applied. That was replaced in February 2019 by a new, equivalent version titled 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”), which will be applied in this matter.
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 a number of 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 under the General Guidance 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 in determining 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 must be taken into account in deciding whether to revoke the mandatory cancellation, which 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 RZMW PASS THE CHARACTER TEST?
RZMW does not dispute the information in his National Police Certificate (“NPC”).[20] Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, the Tribunal is satisfied he does not pass the character test. Accordingly, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the visa cancellation.
[20] Exhibit R1, 107.
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 cancellation of RZMW’s visa should be revoked. The task of identifying ‘another reason’ was elaborated upon by the Full Court of the Federal Court in Viane:[21]
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.
[21] Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 162 ALD 13 per Colvin J at [64].
EVIDENCE BEFORE THE TRIBUNAL
The following materials were taken into evidence:
(a)Documents lodged by the respondent numbering 434 pages (“G-Documents”)[22] and Supplementary G-Documents numbering 112 pages;[23]
[22] Exhibit R1.
[23] Exhibit R2.
(b)Documents lodged by RZMW and taken into evidence were:
(i)a 150-page bundle of medical records from the International Health and Medical Services (“IHMS”), which is contracted by the Commonwealth of Australia to provide primary and mental health care to people in immigration detention;[24]
[24] Exhibit A1.
(ii)a nine-page IHMS record titled ‘Mental Health Assessment’;[25]
[25] Exhibit A2
(iii)an IHMS Health Summary Report dated 13 November 2019 for the Commonwealth Ombudsman;[26]
[26] Exhibit A3.
(iv)a report by consultant psychiatrist Dr Maria Andrzejewski dated 13 July 2017;[27]
[27] Exhibit A4.
(v)a document titled: ‘Culture and Mental Health in Liberia: A Primer 2017,’ published by the World Health Organisation;[28]
[28] Exhibit A5.
(vi)a document titled: ‘Liberia – The World Factbook’ an online publication by the Central Intelligence Agency;[29]
(vii)certificates of participation and attendance relating to two-hour workshops and a weekly men’s group attended by RZMW;[30]
(viii)email dated 27 March 2020 (10:46 AM) from RZMW’s current partner;[31]
(ix)email dated 26 March 2020 (2:14 PM) from one of RZMW’s brothers;[32]
(c)email dated 27 March 2020 (2:00 PM) from one of RZMW’s sisters;[33]
(d)email dated 27 March 2020 (1:57 PM) from another of RZMW’s sisters;[34]
(e)email dated 26 March 2020 (10:49 AM) from another of RZMW’s sisters;[35]
(f)email dated 26 March 2020 (4:37 PM) from another of RZMW’s sisters;[36] and
(g)email dated 27 March 2020 (2:27 AM) from another of RZMW’s brothers.[37]
[29] Exhibit A6.
[30] Exhibit A7.
[31] Exhibit A8.
[32] Exhibit A9.
[33] Exhibit A10.
[34] Exhibit A11.
[35] Exhibit A12.
[36] Exhibit A13.
[37] Exhibit A14.

The following witnesses gave oral evidence at the hearing:
(a)RZMW;
(b)RZMW’s current partner, who is also the victim of his most recent domestic violence offending. The Tribunal noted during the hearing that notwithstanding both parties initially contending that ‘Interests of victims’ was not a relevant consideration in this matter, the Tribunal considered on the basis of this witness’s evidence that it was. Submissions were sought from the parties during the hearing, which re discussed later in these reasons; and
(c)four of RZMW’s siblings.
Criminal History
The Tribunal finds that RZMW’s NPC is an accurate record of his offending in Australia.
Sentencing Remarks
Sentencing remarks were available from the District Court of Queensland dated 2018,[38] as was a transcript of proceedings from the Magistrates’ Court of Queensland dated 2017[39] and from the Magistrates’ Court of Queensland dated 2013.[40]
[38] Exhibit R1, 113-117.
[39] Ibid, 118-120.
[40] Ibid, 121-123.
RZMW’s evidence
RZMW contextualised his offending as linked to trauma experienced prior to his arrival in Australia and persistent alcohol abuse, which he now regrets. He said that after a long period of self-reflection in custody, he was now determined to make enduring changes and live a law-abiding life with the support of his partner and family. He claimed to have become a ‘better man since being in detention,’ and ‘learned more about society in Australia’. Key aspects of RZMW’s oral evidence can be summarised as follows:
(a)The nature of RZMW’s relationship with eight children identified in the Applicant’s Statement of Facts, Issues and Contentions (“the ASFIC”) as relevant to the ‘Best interests of minor children’[41] was the subject of considerable discussion. His oral submissions can be summarised as follows:
[41] ASFIC, 7-8.
(x)RZMW aspires to play a more prominent parental role in the lives of four of his biological children and three step-children (two of whom are minors).   He intends to live with his current partner, who is the mother of his youngest child, and her three children from a previous relationship.     RZMW said his three stepchildren considered him to be ‘their dad.’ Notwithstanding his earlier agreement that his NPC was an accurate record of his offending, RZMW denied ever committing violence against any woman, including his current partner. He claimed variously that his convictions were due to false evidence and, in the case of his March 2018 convictions, advice from his then barrister to plead guilty and receive a relatively short sentence of imprisonment. RZMW’s oral evidence conflicted with the submissions of his counsel in the ASFIC and is dealt with later in these reasons. RZMW agrees his current de facto partner was pregnant at the time of the domestic violence offences he was convicted of. He was absent for the birth of his youngest child and has only met the child once following his 2018 trial;[42]
[42] Exhibit R1, 117.
(xi)RZMW confirmed he had never met his two older de facto step-children.   He claimed to be close to his youngest de facto step-child, who was four years of age when he met her mother. When it was put to RZMW that there had been limited opportunities to interact with his youngest step-child because of a domestic violence order in 2016, followed by a violent incident against the child’s mother in early 2017, he stated: ‘but she still remembers me’. RZMW said he also talked with his current partner’s oldest child (an adult) ‘sometime’ and provided advice. When asked why he only listed three children in his Personal Circumstances Form (“PCF”) dated August 2017,[43] but not his youngest biological child, who was born six months earlier in February 2017, or his stepchildren, RZMW responded: ‘Back then I wasn’t really focussed and had no contact...They didn’t ask me for de facto children…we were in a relationship, but there was a police matter that stopped us from contacting each other.’ When asked why he recorded his relationship status as ‘single’ in the PCF, RZMW explained it was because he ‘wasn’t really focussed’;
[43] Ibid, 135.
(xii)When asked about a claimed 14-year old biological child in the ASFIC, RZMW said he had no relationship with the child and the child’s mother told him she was already pregnant with this child prior to their relationship commencing. Mr Glenister conceded during the hearing that this child’s interests would no longer be relied upon;
(xiii)When asked about a claimed 13-year old biological child with a former partner who was ‘disabled’ RZMW said he had no contact with the child since being imprisoned in 2016. When it was put to RZMW that he made no financial contribution to the child, RZMW responded: ‘I tried my best… they’re a wealthy family and give me money when I need it’;
(xiv)When asked about two biological children aged seven and 11 with another former partner, RZMW said the former partner had since married and he ‘can’t call into her married home’. He last saw the children prior to being imprisoned in 2016, but said they previously visited his mother’s home on weekends. He agreed there was no evidence from the mother of these children, and the children would not reside with him if released;
(xv)When asked about why he had not listed his 16-year old sister in the 2017 PCF, RZMW insisted he was close to her. When asked why there had been no previous contact with his sister until late 2018, RZMW said he only rang his mother while imprisoned because it was expensive. In immigration detention, however, he had access to a mobile phone and social networking, through which he reconnected with his sister. RZMW agreed his sister was looked after by his mother and other relatives; and
(xvi)When asked why his initial psychiatric assessment in immigration detention referred to RZMW being ‘single…separated…lives with his mother…occasional contact [with some children] supervised at his mother’s house,’ and ‘no contact’ with two other children,[44] RZMW said he ‘can’t remember’ the psychiatric assessment, disagreed with the reference to supervised contact, and opined that ‘maybe’ the person undertaking the assessment did not understand him.
[44] Exhibit A1, 1.
(b)RZMW cavilled at the suggestion that he had been frequently subject to domestic violence orders and conditions, stating: ‘I only have two.’ During   cross-examination, RZMW agreed that records in evidence indicated he was subject to multiple domestic violence orders and conditions between 2007 and 2018. He was taken through these orders in chronological order, grouped in relation to three relationships as follows:
(i)Four orders were issued with effective dates between December 2007 and April 2008, during which RZMW was in a relationship with a woman who the Tribunal will refer to as ‘J’. RZMW said these orders were made at the request of J’s mother: ‘Her mum put a protection order on me so I wouldn’t take the kid away…[J] had disability issues.’ RZMW insisted he was never violent towards J, but she was violent towards him: ‘She kept slapping me, waking me up, telling me I was sleeping too much, I had to move out…’;
(ii)In relation to domestic violence orders and conditions during a relationship with a woman who the Tribunal will refer to as ‘B’, RZMW said he had ‘a bit of an issue’ with B but was never violent towards her. He claimed it was B who was violent towards him: ‘There was only one incident. I was catching up with my mates drinking all night – she took something and hit me with it. I didn’t do nothing to her.’ RZMW claimed that when trying to leave after B hit him, he accidently backed a car into a fence, which is why police were called and a domestic violence order was made. He claimed that B gave ‘false evidence’ to police and opined that her claims against him ‘had something to do with jealousy’ or were ‘just misunderstandings’. He claimed that part of the problem was he only gave B $10,000 from his $125,000 compensation payout and ‘she wasn’t happy.’ When it was put to RZMW that he contravened a domestic violence order and was convicted of wilful damage in 2012 during his relationship with B, he claimed he could not recall. When taken to a police record stating that in November 2012 he was reportedly yelling and screaming outside a residence, threw a drawer through a bedroom window, and removed a child from the premises, RZMW responded: ‘No way, that’s a lie. What happened was she took the kid to her mum’s place….I took my daughter and they called police…I didn’t create no violence, I didn’t break no window.’ RZMW claimed he only took the child after B’s mother said ‘go ahead.’ In response to subsequent questions, RZMW agreed police were called and had to retrieve the child from him. When asked about other incidents involving B, RZMW said he went to prison in 2013 and did not want to be with B after that ‘because she was causing drama.’ He called her to discuss ‘access to the kids’ and she reported his breach of contact conditions to his parole officer; and
(iii)In relation to violence against his current partner, who the Tribunal will refer to as ‘A’, RZMW agreed there were domestic violence orders and conditions involving A since soon after they commenced a relationship. He said on one occasion police arrested him, but claimed it was not because of violence towards A. He also denied being violent towards her during an incident in January 2017 for which he was convicted. He claimed this incident was caused by an ‘argument about money…she got pissed off, took her key, car and daughter and left.’ When asked about the court’s findings that he twisted and hurt A’s hand, put his arm around her neck causing her to struggle to breathe, and bit her, RZMW insisted he was never violent towards A, who he claimed had provided ‘false statements’ to police. RZMW said all he had tried to do was inspect a ring A was wearing and she ‘pulled back her hand.’ When asked about the schedule of facts to which he pleaded guilty, RZMW said: ‘The barrister told me to plead guilty and I’d only get three or four months’. When asked if he accepted that he had done anything wrong in relation to A, or B or J, RZMW stated: ‘nothing physical…I didn’t lay a hand on any of them.’
(c)When asked about the reasons for his offending, RZMW stated: ‘The number one thing was I was not having the proper medical treatment…I had my hand injury and I couldn’t do the work I did before’. When asked about other factors relevant to his offending, RZMW said he ‘entered the country with trauma,’ but was unwilling to elaborate, stating: ’I don’t really like to talk about it.’ In response to further questions from Mr Glenister, he claimed that he had seen his father killed in front of him in Liberia and was forced to become a child soldier. RZMW said medication received in immigration detention had ‘helped a lot’ in dealing with past trauma;
(d)RZMW agreed that alcohol abuse was also a factor in his offending, stating that he commenced drinking alcohol daily after arrival in Australia, which was available in ‘unlimited’ amounts. He agreed that he had a propensity to commit alcohol-fuelled violence, but decided in immigration detention ‘not to drink alcohol anymore.’ When asked about his violent conduct against police and detention staff, RZMW said alcohol was to blame and he could not remember the specifics, including an occasion when he had kicked a police officer in the face. He was also violent against detention centre staff approximately two years ago after becoming intoxicated on ‘home brew,’ which was given to him by another African detainee he ‘got along with.’ RZMW claimed the home brew caused him to ‘black out’ and his conduct during this incident ‘wasn’t very violent.’ When referred to a document stating he kicked an immigration detention officer in the face, attempted to punch another, and made a threat to kill, RZMW said he had ‘apologised for going that far’, and ‘wasn’t focussed’ at the time. Following the ‘home brew’ incident, he had decided to remain abstinent from alcohol;
(e)When asked about his traffic history, RZMW agreed it was ‘appalling’ and put other road users at a significant risk of harm;
(f)When asked about a formal warning from immigration authorities in 2014, RZMW said: ‘If I received the paper there was no one there to read it to me.’ Mr Glenister subsequently confirmed it was not in contest that RZMW was formally warned by immigration authorities and signed a notification to that effect;
(g)RZMW claimed he had ‘been rehabilitated’ after a lengthy period in prison and immigration detention. When it was put to him that his decision to consume an illicit drug in prison (ice), and to become intoxicated on home-brew in immigration detention, cut across his rehabilitative claims, RZMW said he was now determined to remain abstinent and law-abiding. When it was put to him that the             alcohol-related rehabilitation he claimed to have done in prison in 2014 was followed by serious offending in later years, RZMW replied: ‘I got involved with the wrong people in prison.’ When asked about any rehabilitation he had completed that was relevant to alcohol abuse or anger management, RZMW agreed he had not completed such courses, because they were not available to him in immigration detention. When it was put to RZMW that his evidence at the previous Tribunal hearing was that he had elected to play the drums in preference to undertaking a rehabilitative course, he insisted that he had made enquiries to a ‘welfare officer’ about the availability of drug and alcohol rehabilitation but it wasn’t available. He instead completed parenting courses;
(h)When asked about non-compliance with medication for his mental health condition, RZMW agreed he had stopped his medication ‘for a little while – four to five months,’ and had asked the doctor in immigration detention to reduce his dose, because he was ‘getting too fat’. RZMW said that taking medication in immigration detention was voluntary: ‘It’s up to me – if I don’t want it, I don’t have to.’ He had recently recommenced taking Seroquel at a reduced dose and also took           over-the-counter pain relief for pain in his right hand. He claimed to take another medication for his mental health, but could not recall its name. When it was put to RZMW that he failed to attend multiple medical appointments scheduled for him, he demurred, stating: ‘No, every appointment that was made for me I attended.’ When pressed about IHMS medical records noting over 30 occasions where that appeared not to be the case, RZMW replied: ‘I can’t remember - if I miss an appointment, they usually re-book it for me’;
(i)When asked about his relationships with his family members, RZMW said he had ‘always been loving and caring’ with his mother and siblings. When challenged that one brother’s evidence was that RZMW’s conduct caused their relationship to break down, and he had only reconnected with his youngest sister recently, RZMW agreed there had been limited contact at times with family members, but intended to ‘change that’ if released. He contextualised any problems in family relationships as arising from his inability to attend events like birthdays, family celebrations and church. He agreed that at times members of his family were unhappy about the company he kept and the things he did;
(j)When asked about any work undertaken in Australia, RZMW said he had not worked since 2009 after suffering a right hand injury. He claimed to have received $125,000 in compensation following surgery. A doctor told him the hand would improve enabling his return to work, but RZMW had since felt unable to do so. When asked why he had not referred to problems with his right hand during immigration detention processing in 2017, and only raised issues with his right hand around the time of his first Tribunal hearing, RZMW insisted he had reported persistent problems with his hand. He claimed to have been referred to a hand specialist, but the appointment was delayed due to the current Coronavirus emergency. RZMW said he only had ‘75% or 85%’ use in his right hand, which prevented him doing any ‘hard work.’ When asked about evidence referring to him playing the drums and engaging in other activities like boxing, basketball, soccer, and gym work in immigration detention, RZMW said he did not play the drums anymore, had stopped boxing about a year ago, and still experienced pain in his right hand after some activities. When asked about the evidence of his current partner and two siblings that he worked on farms prior to his arrest in 2016, and that he appeared to be more physically able than he claimed to be, RZMW said his sister ‘doesn’t really know what’s going on with my hand,’ and insisted that he needed another hand operation. RZMW agreed no doctor had ever told him he needed another operation and this was his perspective on what was required; and
(k)When asked what problems he faced if repatriated to Liberia, RZMW said he had no family support there and would be unable to do ‘hard work’ because of his hand injury, which would make it difficult to survive. When asked if he could read and write, RZMW replied: ‘not properly,’ but claimed he had made some progress through study in immigration detention.
Evidence of RZMW’s current partner
The Tribunal notes the previous evidence of RZMW’s current partner, “A,”[45] in which she: agreed that her relationship with RZMW ‘was on and off’ since they first met in 2015;[46] that RZMW was subject to a domestic violence order taken out to protect her between January 2016 and March 2018;[47] and that RZMW had physically only met their child once at his 2018 trial.[48] A said RZMW and had not made any financial contribution for the child,[49] and that she, her brother and uncles cared for the child.[50] When asked how many other children RZMW had, A thought he had a total of four children, but was ‘not sure if he contacts them’.[51] A also referred to two of her other children from a different father, stating that RZMW had ‘become like a father’ to her youngest daughter, taking her to the ‘movies…park and shopping’.[52]
[45] Exhibit A8; Exhibit R1, 227; 248; and Exhibit R2, 44-50.
[46] Exhibit R2, 47 [2].
[47] Ibid, 47 [1]-[33].
[48] Ibid, 46 [7].
[49] Ibid 49 [11]-[15].
[50] Ibid, 49 [23]-[24].
[51] Ibid, 49 [39]-[43].
[52] Exhibit R1, 227.
A’s oral evidence during the current hearing can be summarised as follows:
(a)She has known RZMW since 2015 and they commenced a relationship in 2016. He was violent towards her at the end of 2016 while she was pregnant with his child, resulting in a domestic violence order being raised. She said the incident precipitating the order was when RZMW ‘smashed’ her mobile phone because he was ‘angry’ with her;
(b)A said she did not see RZMW again until the violent incident in early 2017. Her youngest daughter was in the home at the time. Her other two children were then living in Papua New Guinea, but joined her in Australia at the end of 2017. These children had not previously met RZMW, but she said: ‘he knows about them’;
(c)A said that she couldn’t defend herself against RZMW’s violence. He tried to pull a ring off her hand. She struggled and he put his hands around her, causing her to ‘run out of breath.’ The police arrested and charged RZMW after this incident;
(d)A said she did not know of RZMW’s whereabouts until approximately seven or eight months after giving birth to their child. She heard he was appearing in court in March 2018 and took their child to meet him. That was the only occasion RZMW had physical contact with their child, but he talked to the child on the telephone;[53]
(e)After RZMW moved to immigration detention in Western Australia, they decided to reconcile following telephone conversations. A said she did not want RZMW to act against her like he had in the past, but was confident he would change. When asked if she was concerned by RZMW’s other offending, such as carrying a knife in public and into a police station or damaging other people’s property, A said she was not aware of him carrying a knife, but ‘didn’t really think about’ his past and thought RZMW could still be a role model for her children; and
(f)Since meeting RZMW in 2015, A said he had worked on a farm and made some contribution towards food and the power bill. She said it was ‘not much but it helped’. Since his imprisonment in 2016, A looked after the children herself, supported by her brother and uncles, without any financial support from RZMW.
[53] Ibid, 48 [34].
Evidence of one of RZMW’s brothers

The Tribunal notes the previous evidence of one of RZMW’s brothers,[54] who is an adult and whose oral evidence can be summarised as follows:
(a)The witness thought RZMW had two children, with a woman he had since separated from. He was also aware RZMW had a falling out with members of their family after associating with the ‘wrong crowd’;
(b)When asked what RZMW had done by associating with the ‘wrong crowd,’ the witness said he was not aware of the specifics of RZMW’s criminal history;
(c)The witness thought his brother would live a law-abiding life if released and could do many jobs like ‘labouring,’ or ‘bulk building supply’, or work as a ‘personal trainer or boxing coach.’ RZMW had taught the witness boxing and helped with his boxing aspirations over the years through sparring and correcting his style. When asked if his brother was physically able to work, the witness responded: ‘For sure – he’s the only one I’m intimidated by when it comes to sport – he’s always up for anything.’ When asked by Mr Glenister during re-examination if he was aware of any physical injury preventing RZMW from labouring or boxing, the witness said he was not. When asked if he was aware of any work previously done by RZMW, the witness said RZMW had done farm work; and
(d)When asked who had looked after their mother since 2016 when RZMW was in prison or immigration detention, the witness said all the family did, but two of their sisters were particularly prominent in their contribution.
[54] Exhibit A9; Exhibit R1, 240; 249; and Exhibit R2, 32-38.
Evidence of one of RZMW’s sisters
The Tribunal notes the previous evidence of one of RZMW’s sisters,[55] who is an adult and whose oral evidence can be summarised as follows:
(a)The witness said RZMW had four children, having discovered he was the father of the youngest child during his March 2018 trial when the child’s mother came to court;
(b)The witness said she had spoken to RZMW on the telephone ‘many times’ and he told her he wanted to be more present in the lives of his children. He was not previously ‘too involved in their lives’, but she was confident he would ‘really change and be there for them’ in the future; and
(c)The witness did not know why RZMW was in prison, but thought ‘he had friends that got him to where he is now’ by drawing him away from his family.
[55] Exhibit A10; Exhibit R1, 239; and Exhibit R2, 18-25.
Evidence of one of RZMW’s sisters
The Tribunal notes the previous evidence of one of RZMW’s sisters,[56] who is 16 years of age and whose oral evidence can be summarised as follows:
(a)The witness lives with her mother, who is her primary caregiver;
(b)The witness made contact with RZMW in 2018 after noticing he had a social networking account;
(c)RZMW is one of her ‘favourite brothers’ and she claims to have suffered ‘from depression, stress and anxiety’ as a result of his imprisonment and immigration detention. She claims to have tried counselling, but it hasn’t helped;
(d)The witness wants RZMW to see her graduate from high school. If he is released, she will take him to church and teach him about God; and
(e)The witness thought RZMW had four children; two girls and two boys. She did not know the youngest child’s name. The youngest female child had been told by her mother that she had no father, and the witness had taken it upon herself to tell the child that her father was RZMW. The witness said the older female child was aware RZMW was her father.
[56] Exhibit A11; Exhibit R1, 226; 236; and Exhibit R2, 27-31.
Evidence of one of RZMW’s brothers
The Tribunal notes the statement of one of RZMW’s brothers who is an adult,[57] and whose oral evidence can be summarised as follows:
(a)The witness had most recently spoken to RZMW last week and before that approximately six weeks earlier. He claimed to be very close to RZMW, but their relationship broke down four years ago because RZMW was mixing with the wrong crowd and getting into trouble. When asked what type of trouble, the witness referred to excessive drinking and: ‘heard [RZMW] had a fight with his missus.’ The witness learned of RZMW’s arrest from a friend in Brisbane. When asked about the extent of RZMW’s offending, the witness said he was only aware about one incident of domestic violence against ‘someone he was living with’;
(b)The witness agreed RZMW has a problem with alcohol and could get violent when he drinks. When asked whether he thought RZMW needed counselling and treatment for his drinking and violence, the witness responded: ‘definitely’;
(c)When asked how many children RZMW has, the witness referred to four children with ‘three different mums’. When asked by Mr Glenister during re-examination, if he could name them, the witness could recall only one child’s name, explaining: ‘I haven’t seen them for a while.’ In relation to RZMW’s ‘first missus and kid,’ the witness said he had not seen them for approximately three years and they no longer visited his mother’s home;
(d)When asked if RZMW currently has a partner, the witness said: ‘At the moment he’s single because he’s inside.’ When asked who RZMW’s last partner was, the witness said the woman was from Papua New Guinea but he had forgotten her name. He said the relationship broke down in 2016 after RZMW was arrested and went to jail; and
(e)The witness said RZMW worked on a farm (picking onions) before going to prison in 2016.
[57] Exhibit A14.
TRIBUNAL CONSIDERATION OF THE EVIDENCE
During the hearing RZMW was asked questions about aspects his past conduct, which may have given rise to self-incrimination. In accordance with an objection properly raised by Mr Glenister, the Tribunal advised RZMW of his right to silence and to decline to answer questions he believed might incriminate him, and that no negative inference would be drawn if he chose to exercise that right.[58]
[58] As Flick J noted in Kohli v Minister for Immigration and Border Protection [2018] FCA 540 at [31], the privilege against self-incrimination is “not merely a rule of evidence available in judicial proceedings” but is “available generally, even in a non-curial context, as the foundation of an entitlement not to answer a question”:
Having considered the totality of RZMW’s evidence, the Tribunal has significant concerns about the extent to which he provided truthful and forthright responses. His responses at times came across as incomplete, evasive, contradictory, exaggerated, embellished, self-serving, and false. By way of example:
(a)RZMW denied ever being violent against his previous and current domestic partners. That is despite pleading guilty to domestic violence against his current partner in early 2017 on the basis of an agreed schedule of facts. He now claims to have pleaded guilty only at the urging of his then barrister. In relation to the summary of domestic violence orders and conditions raised against him since 2007,[59] RZMW claims it was the women in a number of relationships who were violent against or verbally abused him. There is no corroboration for this assertion, which the Tribunal considers implausible. The Tribunal finds that RZMW’s convictions followed due legal process and his NPC accurately describes his crimes. The Tribunal places greatest weight on the NPC, sentencing remarks, oral evidence of A, and contemporaneous records released under summons, than to RZMW’s unsubstantiated claims;
(b)RZMW contends he has been unable to work for over a decade because of a right hand injury sustained at work, for which he was compensated. That claim is inconsistent with the evidence of his current partner and two siblings, who say RZMW undertook farm work prior to imprisonment in 2016. Another sibling spoke about RZMW’s role in helping train and develop him as a boxer. Other evidence, like the IHMS medical records, frequently refer to RZMW undertaking activities like running, gym work, boxing, basketball and playing the drums. There are a number of references to him reporting pain in his right hand while in immigration detention, but there is no corroborating expert evidence that RZMW is unable to work because of any injury or needs another operation on his hand. The Tribunal found RZMW’s claims about his right hand injury to be unpersuasive at best;
(c)RZMW’s claim that he never missed a scheduled medical appointment in detention, and was compliant with his medications, is at odds with other evidence. There are more than 30 occasions in the IHMS medical records where he is noted as ‘Did not attend’ a scheduled appointment. There are also multiple references to RZMW not being compliant with prescribed medications;
(d)RZMW’s explanation about why he listed himself as single and with only three children in his 2017 PCF, did not ring true. Similarly, his claim that he was unaware of a formal warning from immigration authorities in 2014, despite signing an acknowledgement of receipt, came across as implausible and self-serving.
[59] Exhibit R1, 266-270.
In considering references from family members and friends, the Tribunal is mindful that they routinely provide the most positive perspective about an Applicant’s conduct, whereas other members of Australian society may consider the same conduct unacceptable. Care must be taken in the weight placed on such references. The Tribunal also notes that the materials supportive of RZMW are very general in nature. None of the witnesses have much knowledge about RZMW’s criminal offending or misconduct while imprisoned and in immigration detention. Their knowledge about his claimed personal relationships was also inconsistent at times.
PRIMARY CONSIDERATIONS
Protection of the Australian community from criminal or other serious conduct
Clause 13.1 of the Direction states:
(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on 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. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(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.
Clause 13.1.1(1) sets out factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other conduct to date. Decision-makers must have regard to factors including:
(a) The principle that, without limiting the range of offences that may be considered serious, violent and / or sexual crimes are viewed seriously.
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.
Tribunal consideration: The nature and seriousness of the conduct
RZMW’s criminal history between 2005 and 2013 was dealt with through fines, probation, restitution, licence disqualification, and suspended sentences of imprisonment. The first sentence of imprisonment he served resulted from convictions on 8 July 2013, and he has received further sentences of imprisonment on 19 January 2017 and 21 March 2018.
In 2018 the sentencing judge noted RZMW had a ‘lengthy criminal history,’ much of which was ‘of a minor nature’ consisting of ‘numerous street offences and minor property offences.’[60] His Honour recorded RZMW’s plea of guilty on the basis of the tendered schedule of facts, and that his violent offending was aggravated by breach of a domestic violence order, on the very day he was ‘sentenced to six months’ imprisonment for willful damage, but given immediate parole.’[61] It was further noted that although there was ‘no like [domestic violence] offending’ in his criminal history, RZMW had been convicted of ‘an earlier contravention of another domestic violence order,’ had a ‘very poor traffic history,’ and had ‘not performed well on parole in the past.’[62] His Honour noted RZMW’s ‘terribly disrupted life’ in Liberia, workplace injury, and that alcohol is a ‘major problem’ featuring ‘in all or most’ of his criminal offending.[63] His Honour opined, however, that while alcohol provided some explanation for RZMW’s action, it was ‘certainly no excuse for them.’[64]
[60] Exhibit R1, 115 [24]-[26].
[61] Ibid, 115 [13]-[18].
[62] Ibid, [29]-[31].
[63] Ibid, [34]-[42].
[64] Ibid, 116 [1].
RZMW denied during the hearing that he had ever been violent against a domestic partner, and that two of them were instead violent towards him. That submission is in contrast to the ASFIC, which concedes RZMW was convicted of several serious offences, including violent offences against a woman who was pregnant at the time with his child, for which he is remorseful. Mr Glenister accepted during closing that there was a ‘long history’ of RZMW being subjected to domestic violence orders and conditions. It was submitted, however, that no inference could be made linking that ‘course of conduct’ to like offences (against A) in the past. It is also conceded in the ASFIC that RZMW has received significant terms of imprisonment, frequently committed offences, and reoffended after being warned about the consequences for his migration status.[65] Mr Glenister submitted, however, that:
(a)The domestic violence offences committed by RZMW ‘fall towards the lower end of the scale of seriousness for offences of this type,’ as evidenced by the ‘modest’ sentences received in comparison to the maximum available sentences for assault (three years’ imprisonment), for assault occasioning bodily harm (seven years);[66]
(b)There is no evidence the domestic violence offences involved any premeditation, or an ongoing course of conduct, or that their occurrence was anything other than an isolated incident;
(c)It is to RZMW’s credit that he pleaded guilty to the domestic violence offences, which reflects his remorse, insight, and avoided the need for his victim to give evidence at the trial;
(d)Notwithstanding the frequent nature of RZMW’s offending, most of it, as described by the sentencing judge in 2018 ‘is of a minor nature;’[67] and
(e)Coinciding with his loss of employment following a workplace injury in 2009, RZMW’s criminal history became more serious in 2010 and more frequent thereafter, which was also affected by his dependence on alcohol.
[65] ASFIC, 3 [25]-[32].
[66] Criminal Code Act 1899 (Qld) ss 335 and 339.
[67] Exhibit R1, 115 [25].
In closing submissions, Mr Glenister submitted that RZMW’s mental health was not raised during his 2018 trial, despite a record from a consultant psychiatrist dated 13 July 2017 in which RZMW presented with a ‘first episode psychosis of initially bizarre behaviour and posturing…’.[68] The Tribunal noted RZMW was in prison during this time and there are references in the evidence to him experiencing a drug-induced psychosis after using ice. RZMW is also recorded in an IHMS interview as saying he ‘ended up going to the mental ward’ as a consequence of using ice while imprisoned. Mr Glenister was unsure what the underlying cause of the reported psychosis was in 2017, but submitted that RZMW’s mental health presentation was a ‘mitigating factor diminishing the overall seriousness’ of his offending.
[68] Exhibit A4.
The respondent submitted in a Statement of Facts, Issues and Contentions (“RSFIC”) dated 6 April 2020 that RZMW’s offending should be viewed as very serious because:
(a)He has a history of committing violent offences. His most recent court appearance was for two counts of common assault, one count of assault occasioning bodily harm, and one count of contravention of a domestic violence order.   The sentencing judge noted that the complainant at the time was pregnant with RZMW’s child and his violence against her was in breach of an existing domestic violence order;
(b)RZMW has a significant history of domestic violence orders and conditions with multiple ‘effective to’ dates, between 2007 and 2018.[69]
[69] Exhibit R1, 266-269.
(c)Crimes of a violent nature against women are viewed very seriously, regardless of the sentence imposed (paragraph 13.1.1(1)(b) of the Direction);
(d)Crimes committed against government representatives or officials in the performance of their duties are viewed seriously (paragraph 13.1.1(1)(c) of the Direction). RZMW has a history of offending against police, including:
(iv)Obstruct police officer on 22 October 2005;
(v)Wilful damage of police property on 29 July 2007;
(vi)Wilful damage of police property, obstruct police officer and fail to comply with requirement to stop private vehicle on 17 October 2007;
(vii)Serious assault of police officer on 18 February 2010 (where RZMW kicked out violently and struck a police officer in the jaw which necessitated the police officer being taken to hospital[70]); and
[70] Ibid, 288.
(viii)Repeated failure to stop a motor vehicle on 18 December 2012,   27 December 2012 and 28 December 2012, and dangerous operation of a vehicle on 7 January 2013;[71]
[71] Ibid, 300; 311; 312; 319.
(e)RZMW has a frequent history of offending which has had a trend of increasing seriousness. His offending in Australia commenced in 2005 with obstructing police and public nuisances to wilful damage in 2011-2012, which increased in seriousness to contravention of domestic violence orders, possession of a knife and assault occasioning bodily harm in 2016 to 2017;
(f)RZMW has been sentenced to numerous terms of imprisonment on separate occasions for his offending. Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy. Accordingly, where a Court has sentenced an offender to a term of imprisonment, this must be viewed as a reflection of the object seriousness of the offences involved;
(g)RZMW has a serious traffic record[72] encompassing drink driving, described by a sentencing Magistrate as a ‘terrible traffic history.’[73] Furthermore, on 8 July 2013, RZMW was convicted of a number of offences whilst dangerously operating a motor vehicle for which he was sentenced to two years and six months imprisonment. The sentencing Magistrate described these offences as ‘particularly serious’ which involved RZMW crossing double lines, driving onto oncoming traffic, and speeding away from police. Such driving offences, which have the potential to injure and possibly kill innocent road users, are serious.
(h)RZMW has been involved in serious conduct while in immigration detention including in October 2017 when he kicked an immigration officer in the face, attempted to punch another officer, and verbally threatened to kill;[74] and
(i)RZMW has re-offended since being formally warned, in writing, on   5 February 2014[75] about the consequences of further offending in terms of his migration status. Since that time, RZMW has offended as follows:
(i)On 5 October 2016 he committed the offence of unlawful use of a motor vehicle;
(ii)On 31 October 2016 he committed the offence of possession of a knife in a public place or a school;
(iii)On 7 December 2016 he committed the offence of wilful damage;
(iv)Between 7 December 2016 and 15 December 2016 he committed the offence of contravene direction or requirement; and
(v)On 19 January 2017 he committed: two offences of common assault – domestic violence offence; assault occasioning bodily harm – domestic violence offence; and contravention of domestic violence order (aggravated offence).
[72] Ibid, 365-371.
[73] Ibid, 122.
[74] Ibid, 201; Exhibit R2, 76.
[75] Ibid, 200.

Clause 14.5(1) of the Direction states that:
The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)        The non-citizen’s age and health;
b)        Whether there are substantial language or cultural barriers; and
c)        Any social, medical and/or economic support available to them in   that country.
RZMW submitted in a statement lodged with the Tribunal prior to the 2018 hearing that if returned to Liberia he fears not having ‘access to the good quality of help that I have received in Australia…’. That includes counselling and other assistance for his claimed depression and anxiety, as well as for a physical injury he claims to have suffered while working in Australia in October 2009:
‘Things took a turn for the worst though, in October of 2009 when I suffered an injury at work. My right hand was badly hurt in an accident at the factory that I worked at. Due to poor supervision on the part of my employers, this happened in an unsafe environment. The reason I raise this point, is because that accident led me into a downward spiral, as work was hard to find because I had lost the full function of my right hand. The injury had a detrimental impact on my life, and it has led me to seek further medication- to add to that I was prescribed for my psychological trauma. With the health system in disarray in Liberia, I may not have access to the appropriate treatment over there for this injury.’
RZMW expresses an aspiration to ‘study…and to gain employment’ in ‘other fields’ if released, although he submits that a right hand injury has prevented him since 2009 from engaging ‘in any work that requires physical exertion.’ The evidence of some of his siblings, however, is that he could return to work if released.[187] His current partner and two siblings also gave evidence at the current hearing that RZMW undertook farm work prior to his arrest in 2016. One sibling said the work undertaken was picking onions. Mr Glenister conceded in closing that the evidence about RZMW having engaged in farm work prior to being imprisoned, made it ‘hard to substantiate’ the ‘extent to which his hand prevents him from working.’
[187] Exhibit R2, 19 [37]-[45]; 41 [28]-[39].
It is submitted by Mr Glenister that:[188]
(a)RZMW has severe mental health issues, having been previously diagnosed by a psychiatrist as having chronic schizophrenia;[189]
(b)RZMW is mentally fragile due to his experiences while living in Liberia, which makes him sensitive to stress and avoidant of dealing with challenges. When not properly medicated, he suffers from psychotic symptoms which affect his cognition, concentration and judgment, and he becomes paranoid;[190]
(c)RZMW is illiterate and has a limited capacity to understand his situation;[191]
(d)RZMW had a metal plate inserted into his hand from an injury sustained at work,[192] and is the reason he has not been employed since.[193] This injury and his mental health issues will affect his ability to work in hard manual jobs such as those available to him in Liberia;[194]
(e)The impediments confronting RZMW if repatriated to Liberia ‘are immense,’ including because he will be removed from a support network of immediate family in Australia. His mental health issues and the past trauma he suffered in Liberia will make it difficult for him to ‘acclimatise, understand his situation and act rationally to protect and advance his interests’;
(f)There is also a real danger that RZMW will not maintain his current regimen of anti-psychotic medication if returned to Liberia and that ‘it may even be a certainty rather than a danger that the Applicant will not be able to access adequate treatment’ if he needed it;
(g)54% of the Liberian population live in poverty. RZMW is at a significant disadvantage compared to the rest of the population and in all likelihood will not be able to establish a basic standard of living; and
(h)RZMW has no known relatives living in Liberia who can provide financial or social support.
[188] ASFIC, 13-14 [84]-[93].
[189] Exhibit R1, 213.
[190] Ibid, 214; 246
[191] Ibid, 213; 215.
[192] Ibid, 196.
[193] Ibid, 213; 217.
[194] Ibid, 197; 213; 247.
In closing submissions, Mr Glenister submitted that based on 2014 figures, 54.1% of Liberians live below the poverty line[195] and in the context of the Direction, RZMW’s ability to sustain basic standards of living ‘must mean basic necessities above the poverty line’. Mr Glenister contended that RZMW’s illiteracy, his hand injury, mental health issues and a lack of family support were key impediments to maintaining a basic standard of living.       In relation to these factors, Mr Glenister submitted that:
(a)Illiteracy: RZMW’s evidence is that he has now developed some rudimentary reading and writing skills, but ‘still needs help filling in forms’. Mr Glenister said ‘to some degree, this puts him at a disadvantage to the rest of the population’ in Liberia, where English is the official language and 48.3% of the population can read and write;[196]
(b)Unemployment: It was submitted that as of 2014, the unemployment rate in Liberia was 2.8%.[197] While accepting there was ‘no definitive record’ or medical evidence that RZMW was ‘still afflicted’ by his right hand injury, Mr Glenister said RZMW has consistently claimed to suffer pain in his hand, which prevents him from working. Mr Glenister referred most recently to an IHMS record dated 6 February 2020, where a physiotherapist noted:
‘Previous trauma to R hand and subsequent operation for nerve tissue repair. Thinks they used some sort of internal fixation during procedure.    Took 2-3 years for full recovery and even then still has sensory issues with corresponding region.
5 months ago fell onto outstretched hand and has been painful since.          No formal imaging to date. Has been wearing an elastic bandage/support which has helped somewhat…[198]
(c)Mental health issues: Drawing on his submissions under non-refoulement,            Mr Glenister submitted there was a ‘likelihood of some or all’ of RZMW’s symptomology reoccurring, which represents an impediment to repatriation; and
(d)Lack of family: RZMW has no family in Liberia, without which he will find it difficult to establish basic standards of living and undermine his ability to access support for his mental health condition if required.[199]
[195] Exhibit A6, 11.
[196] Ibid, 6.
[197] Ibid, 10.
[198] Exhibit A1, 6 of 108.
[199] Exhibit A5, 32 [3.1.8].
Mr Hawker submitted there is no substantial language or cultural barrier for RZMW to overcome, given that he lived in Liberia for the first 17 years of his life. Other submissions regarding impediments can be summarised as follows:
(a)The most recent available assessment undertaken by a psychiatrist concluded that RZMW’s mental health condition is in remission despite inconsistent compliance with prescribed medication.[200] The current evidence does not identify RZMW as suffering from an ongoing ‘severe’ mental illness. Furthermore, the IHMS records reveal that even when psychiatric care is available to RZMW, he has been unwilling to take full advantage of that care and has been non-compliant with medications on numerous occasions. RZMW has also failed to attend or proceed at times with booked psychiatric appointments despite such psychiatric care being made available to him. There is no current medical evidence from a specialist psychiatrist indicating RZMW presently requires medical support in the form of medication. To the contrary, the most recent psychiatric assessment concluded that he ‘continues to assert that he does not need antipsychotic medication, no grounds evidence to compel him to do so. Schizophrenia currently in remission;’[201]
(b)Regarding the claimed hand injury, there is insufficient independent specialist medical evidence supporting the Applicant’s claim that he is presently incapacitated for manual work. To the contrary, when assessed by a general practitioner on arrival at Brisbane Immigration Transit Authority, the Applicant denied any physical long term issues.[202] Significantly, a history was taken of the hand injury from 2009 but no ongoing pain was reported. Rather it was noted a patch of skin remains ‘numb’. This can be contrasted with a recent reported history on 3 March 2020[203] at a time when the present proceedings were underway and when the applicant was seeking out ‘something’, and reported a ‘longstanding history of pain in right hand originally some 10 years ago’. On assessment, the general practitioner identified ‘significant discrepancy between verbal expression of his pain and clinical presentation’;
(c)At the last Tribunal hearing, RZMW’s brother gave evidence that if released, RZMW ‘can do some farm work or any kind of that – because in life you don’t have to have all education to be able to work’;[204]
(d)While it is acknowledged RZMW may face some difficulty in establishing himself in Liberia, this factor would only present as a short-term hardship and is to be considered in the context of what is generally available to other citizens of Liberia. For example, it is acknowledged that the mental health system in Liberia is not comparable to that available in Australia. However, the Applicant will have access to the same mental health system that is generally available to other citizens of Liberia.
[200] Exhibit A1, 34 of 108.
[201] Ibid.
[202] Ibid, 108 of 108.
[203] Ibid, 5 of 108..
[204] Exhibit R2, 41 [27]-[39].
Tribunal findings: Extent of impediments if removed
There is no significant linguistic impediment to RZMW’s repatriation, although it can be accepted there is likely to be some cultural impediment after his 16-year residence in Australia. Acknowledging RZMW’s medical history, persistent alcohol abuse and prolonged reliance on income support, the Tribunal acknowledges comparable support and services are unlikely to be available in Liberia, which suffers significant levels of poverty and disadvantage. That being said, cl 14.5(1) of the Direction refers to the ‘social, medial and/or economic support available to [non-citizens] in that country,’ rather than support comparable to Australian standards. There is no evidence RZMW would not be entitled to the same support available to other Liberian citizens, which the Tribunal accepts are likely to be far below the comparable standard in Australia.
The Tribunal accepts that if repatriated to Liberia, RZMW would have no practical or emotional support to draw upon from family or friends. The Tribunal considers it may be possible, however, for some supports currently offered by RZMW’s family and friends in Australia, to be redirected to assist him if repatriated to Liberia.
RZMW is 33 years of age and there is no persuasive medical evidence that he cannot return to remunerative work, or would be unable to form new social networks. There is no evidence to corroborate the submission that the right hand surgery RZMW had in 2009 ‘will affect his ability to work in hard manual jobs such as those available to him in Liberia.’ While the Tribunal accepts on the basis of the IHMS medical records that RZMW does continue to suffer intermittent pain in his right hand, and on 7 January 2020 was instructed to ‘avoid heavy manual work with right hand in particular if pain increases,’ this does not corroborate his claim that he ‘cannot engage in any work that requires physical exertion.’ The Tribunal found RZMW’s evidence about limitations arising from his right hand injury to be particularly unpersuasive given the evidence of his current partner and two siblings that he undertook farm work prior to being arrested in 2016. The evidence in the IHMS records also shows that RZMW engages in activities like gym work, basketball, boxing and playing drums in detention. It follows that if he can undertake farm work in Australia and engage in such recreational and sporting activities in custodial environments, he is capable of working in the agricultural sector in Liberia, which is ‘where Liberians mainly find employment’,[205] and where, in the context of an unemployment rate under 3%, literacy does not appear to be an impediment for engaging in such work.
[205] Exhibit A5, 14 [2.6].
In relation to potential impediments arising from RZMW’s mental health, it is noteworthy that his schizophrenia has remained in remission despite non-compliance with medications, unilateral decisions to reduce or cease medications at times, and frequent failure to attend appointments. The evidence discloses that RZMW’s mental health is stable. The submission that there is ‘a real danger’ he ‘will not maintain his current regimen of anti-psychotic medication if returned to Liberia,’ is speculative and unsupported by expert corroboration. On the available evidence, RZMW resumed some medication in early 2020 on an ‘as required’ and voluntary basis to help him sleep or ‘feel chilled,’ not to treat recurrent symptoms of schizophrenia. There is also no independent expert corroboration to support RZMW’s claim that he has depression and anxiety, for which he requires ongoing treatment.
The Tribunal does not accept that RZMW’s illiteracy causes him to have ‘a limited capacity to understand his situation.’ The Tribunal is satisfied that RZMW is well aware of his situation. The Tribunal accepts, however, that repatriation to Liberia has clear potential to cause RZMW’s mental health to worsen, particularly if he relapses into alcohol or drug abuse, the latter of which has caused drug-induced psychosis in the past. In these circumstances, RZMW is likely to find it much more difficult to access required services than is the case in Australia.
Putting the available evidence in the balance, the Tribunal accepts that repatriation to Liberia will not be without significant challenges for RZMW, particularly after a 16-year residence in Australia and the consequences that may arise if he relapses into alcohol abuse or requires future mental health treatment. The foreseeable impediments weigh substantially in favour of revocation.
Other Considerations
No additional considerations were advanced by the parties and no ‘other considerations’ have been identified that are relevant to the specific circumstances of RZMW’s case as provided for at cl 14(1) of the Direction.
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c)-(d) of the Act, RZMW does not pass the character test. He has committed serious offences in several categories of offending, including those involving violence, repeated breaches of judicial orders, and dangerous conduct while operating a vehicle. His offending traverses the majority of his stay in Australia, with alcohol abuse featuring as a major and unresolved problem. He committed serious offences even after receiving a formal warning from immigration authorities in 2014. In such circumstances, the deemed community expectation is that RZMW’s visa should remain cancelled.
The Tribunal is particularly concerned about RZMW’s implausible evidence that he has never been violent towards a woman, which reflects a lack of insight and remorse. The nature of harm from a repeat of RZMW’s offending is potentially of a very serious nature. The Tribunal does not accept his uncorroborated rehabilitative claims, or that the protective factors he invokes will be any more effective in the future than they were in the past. The potential risk of harm from RZMW is so serious as to render it unacceptable.
It is in the best interests of RZMW’s youngest biological child, youngest step-daughter, and youngest sister, for the mandatory cancellation of his visa to be revoked. This centres predominantly on the admittedly speculative possibility that in future years the two youngest children may want a closer relationship with RZMW. This is subject to RZMW making meaningful changes in his life, like overcoming his alcohol abuse and propensity for violence. Revocation is also in the interests of RZMW’s 16 year old sister, although her adulthood approaches in 2021.
Of the other relevant considerations enlivened in this matter, RZMW has made a limited contribution to the community since arriving in Australia. That being said, his closest ties are to his family members in the Australian community and current partner, who want him to be given another opportunity to lead a productive and law-abiding life. His repatriation to Liberia would have an adverse emotional effect on those who continue to love and support him. While the ‘Impact on victims’ consideration is enlivened as a result of A’s evidence, the Tribunal considers it carries neutral weight.
If RZMW was repatriated to Liberia, the Tribunal accepts he would be confronted by considerable impediments in establishing himself without practical or emotional support to draw upon from family or friends. That being said, his family and friends in Australia may be able to re-direct promised support to assist him overseas. There is no persuasive medical evidence that RZMW cannot return to work if repatriated, such as the farm work he undertook in Australia prior to imprisonment in 2016.
Having weighed all of the considerations individually and cumulatively, there is not another reason of sufficient weight or significance to enliven the statutory power to revoke the cancellation of RZMW’s visa. That is because the primary considerations ‘Protection of the Australian community’ and ‘Expectations of the Australian community’ weigh very substantially against revocation. These outweigh the primary consideration of ‘Best interests of minor children’ which weighs slightly in favour of revocation, ‘Strength, nature and duration of ties,’ which weighs moderately 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 146 (one hundred and forty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

[sgd]…………………………….
Dated: 29 April 2020

Date of hearing: 15 and 16 April 2020

Counsel for the Applicant:
Mr Hamish Glenister

Solicitors for the Applicant:

Advocate for the Respondent:

Cathal Smith Legal

Mr Matthew Hawker

Solicitors for the Respondent:

Sparke Helmore Lawyers

Date of hearing:	15 and 16 April 2020
Counsel for the Applicant:	Mr Hamish Glenister
Solicitors for the Applicant: Advocate for the Respondent:	Cathal Smith Legal Mr Matthew Hawker
Solicitors for the Respondent:	Sparke Helmore Lawyers