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

Sesay and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1827 (26 May 2021)
Division: GENERAL DIVISION
File Number(s): 2021/1417
Re:Andy Budu SESAY
APPLICANT

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

Tribunal:Senior Member Linda Kirk
Date:26 May 2021
Date of written reasons: 18 June 2021
Place:Sydney

The Reviewable Decision dated 2 March 2021 to refuse to revoke the Mandatory Visa Cancellation Decision is set aside; and in substitution, the cancellation of the Applicant’s Class AH Subclass 101 Child Migrant visa under s 501(3A) of the Migration Act 1958 (Cth) is revoked under s 501CA(4) of the Act.
....................[sgd]....................................................
Senior Member Linda Kirk
CATCHWORDS
VISA CANCELLATION - substantial criminal record – Ministerial Direction No. 90 – whether there is another reason the visa cancellation should be revoked – nature and seriousness of offences – best interests of minor children – extent of impediments if removed – strength, duration and nature of ties – decision under review set aside and substituted.
LEGISLATION
Migration Act 1958 (Cth) s 499, s 501, s 501CA
CASES
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
FYBR and Minister for Home Affairs [2019] FCAFC 185
Jal v Minister for Immigration and Border Protection [2016] AATA 789
Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461
Minister for Home Affairs v Buadromo [2018] FCAFC 151
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Saleh and Minister for Immigration and Border Protection [2017] AATA 367
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
SECONDARY MATERIALS
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
WRITTEN REASONS FOR DECISION
Senior Member Linda Kirk
18 June 2021

Andy Budu Sesay (‘the Applicant’) is a 22 year old citizen of Sierra Leone who first arrived in Australia on 20 August 2009 at the age of 10 years.[1] Prior to its cancellation the Applicant held a Class AH Subclass 101 Child Migrant visa (‘the visa’).
[1] Exhibit R1, G38, 231
On 3 September 2020, the Applicant was convicted in the Local Court of New South Wales for two counts of the offence Using an offensive weapon to commit an indictable offence and two counts of Resist officer in execution of duty for which he was sentenced to 18 months imprisonment, with a non-parole period on seven months.[2] Upon appeal, on 18 November 2020, the Court varied this sentence to an aggregate term of 11 months imprisonment, with a non-parole period of seven months, commencing on 3 March 2020.[3]
[2] Exhibit R1, G30, 192
[3] Exhibit R1, G33, 209.
On 16 September 2020 the Applicant’s visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) (‘Mandatory Visa Cancellation Decision’) because a delegate of the Minister (‘the Respondent’) was satisfied he did not pass the character test in s 501(6) of the Act by virtue of the term of imprisonment referred to above. At the time the Applicant was serving a sentence of full-time imprisonment at the Dawn De Loas Correctional Centre in New South Wales.
On 13 October 2020, the Applicant made representations seeking revocation of the Mandatory Visa Cancellation Decision.[4]
[4] Exhibit R1, G3, 41.
On 2 March 2021, a delegate of the Respondent decided, pursuant to s 501(CA)(4) of the Act, not to revoke the Mandatory Visa Cancellation Decision (‘the Reviewable Decision’).[5]
[5] Exhibit R1, G2, 11.
On 10 March 2021, the Applicant applied to the Tribunal (‘the first Tribunal’) for review of the Reviewable Decision under ss 500(1)(ba) of the Act.[6]
[6] Exhibit R1, G1, 1.
The matter was heard by the Tribunal on 10 and 11 May 2021. The Applicant attended the hearing by video-conference from Yongah Hill Immigration Detention Centre. The Applicant’s representative and the Respondent’s representative were also present. The following persons gave oral evidence and were cross-examined at the hearing:
·The Applicant
·Mrs Marie Conteh – the Applicant’s mother
·Mr Tim Watson-Munro, Consultant Psychologist
The material before the Tribunal consists of:
·Section 37 G-Documents filed 23 March 2021 (G1-G49, 339 pages) (‘Exhibit R1’);
·Supplementary G-Documents filed 28 April 2021 (SG 1, 77 pages) (‘Exhibit R2’)
·Respondent’s Statement of Facts, Issues and Contentions dated 28 April 2021 (‘Respondent’s SFIC’); (‘Exhibit R3)
·Applicant’s Tender Bundle filed 26 April 2021 (‘Exhibit A1’)
The Tribunal has reviewed all the evidence before it and refers to all relevant materials below.
LEGISLATION
Subsection 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:
(3A)     The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)     paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)    …; and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Paragraph 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Paragraph 501(7) of the Act relevantly provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
(a)…
(b)…
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
…
Section 501CA of the Act applies if the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501CA(4) confers on the Minister the discretion to revoke the Mandatory Visa Cancellation Decision under subsection 501(3A). Subsection 501CA(4) 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.
Paragraph 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
MINISTERIAL DIRECTION NO. 90
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. The Direction must be applied by all decision-makers, except for the Minister acting personally, such as the Minister’s delegates and the Tribunal.[7]
[7] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [4] (Rares, O’Callaghan and Jackson JJ).
On 8 March 2021, the Minister signed Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’). The Direction commenced on 15 April 2021 and revoked the previous Direction 79 on the same date.[8]
[8] Direction, cl 2-3.
The following principles in paragraph 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(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)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 noncitizens 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 by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen'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 8.4(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.
Paragraph 6 of the Direction provides that, informed by the principles in paragraph 5.2, a

decision-maker must take into account the considerations identified in paragraphs 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction identifies the following as primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)Whether the conduct engaged in constituted family violence;
(c)The best interests of minor children in Australia; and
(d)Expectations of the Australian community.
Paragraph 9 of the Direction identifies a non-exhaustive list of other considerations:
(a)International non-refoulement obligations;
(b)Extent of impediments if removed;
(c)Impact on victims; and
(d)Links to the Australian community, including:
(i)Strength, nature and duration of ties to Australia; and
(ii)Impact on Australian business interests.
Paragraph 7(1) provides that, when taking the relevant considerations into account, ‘…information and evidence from independent and authoritative sources should be given appropriate weight.’
Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’ That does not preclude the Tribunal, however, based on the specific circumstances of each case, to give an ‘other’ consideration the equivalent of or greater weight than a primary consideration.[9]
[9] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
Paragraph 7(3) states that ‘[o]ne 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]:
… 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.
ISSUES FOR DETERMINATION
Before the power in sub-section 501CA(4) of the Act, to revoke the original decision, is enlivened, the decision-maker must be satisfied that the conditions for the exercise of the power have been met.
There is no dispute that the Applicant made the representations required by sub-section 501CA(4)(a). The issue is whether the discretion to revoke the Mandatory Visa Cancellation Decision may be exercised. In Minister for Home Affairs v Buadromo[10] the Full Court of the Federal Court of Australia made the following observations in relation to sub-section 501CA(4):
... there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view...[11]
[10] [2018] FCAFC 151.
[11] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
The issues for determination are:
(e)whether the Applicant passes the character test; and
(f)whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.
If the Applicant succeeds on either ground, the Tribunal must find that the Mandatory Visa Cancellation Decision should be revoked.
EVIDENCE BEFORE THE TRIBUNAL
Early years
The Applicant was born in Freetown, Sierra Leone in February 1999. When he was seven or eight years old, he was separated from his mother during the civil war in Sierra Leone. He was told his mother had been killed, and he and his grandmother moved to a different village to escape.[12] His grandmother brought him up and he attended Sierra Leone Mission School in Freetown.[13] He had no contact with his mother or father during this time.[14]
[12] Exhibit A1, (Applicant’s Statutory Declaration dated 16 April 2021, Para 3), 14.
[13] Exhibit A1 (Applicant’s Additional Statement dated 8 January 2021, Para 4),21.
[14] Exhibit A1 (Applicant’s Statutory Declaration dated 16 April 2021, Para 4), 14.
The Applicant later learned that his mother escaped Sierra Leone in 2002 and entered Australia as a refugee.[15] When she was informed that he and his grandmother were still alive, she arranged for him to migrate to Australia.[16] In August 2009, the Applicant arrived in Australia as the holder of a Class AH Subclass 1010 Child (Migrant) visa,[17] and was reunited with his mother. He had no contact with his father but was told he had been living in the United States and recently passed away.[18]
[15] Exhibit A1, (Applicant’s Additional Statement dated 8 January 2021, Para 2), 21.
[16] Ibid.
[17] Exhibit R1, G38, 231.
[18] Exhibit A1, (Applicant’s Additional Statement dated 8 January 2021, Para 3), 21, Transcript, 8.
When the Applicant started school in Australia, he found it very difficult because he could not read, write or speak English.[19] He attended Northmead Primary School and Northmead High School and graduated Year 12 in 2016.[20] While at school he was bullied and experienced emotional abuse and racism and he had low self-esteem.[21] He suffered from depression and anxiety and feelings of lack of self-worth.[22] When he was in Year 12 and aged 18 years he met a group of boys at the park who were drinking and smoking and they asked him to join them. He was happy to do so because he ‘felt needed and wanted’. He joined them and started drinking and smoking and was introduced to several types of drugs, including cannabis, alcohol and methamphetamines.[23] He started losing friends, his relationship with his family suffered, and he stopped playing soccer. The Applicant also started to engage in criminal activities with his friends. He had to comply with the directions of the older members of the group or ‘would suffer extreme physical consequences.’ There was a lot of pressure from the group to commit offences in relation to stealing cars.[24] During this time, he was using MDMA, prescription medication and methamphetamines on a daily basis.[25] He felt it was helping to alleviate his depressed mental state.[26]
[19] Exhibit A1, (Applicant’s Additional Statement dated 8 January 2021, Para 5), 21.
[20] Exhibit A1, (Applicant’s Additional Statement dated 8 January 2021, Para 7), 22, Transcript, 8.
[21] Transcript, 8.
[22] Exhibit A1, (Applicant’s Additional Statement dated 8 January 2021, Para 6), 22, Transcript, 8.
[23] Exhibit A1, (Applicant’s Additional Statement dated 8 January 2021, Para 7), 22, Transcript,11.
[24] Exhibit A1, (Applicant’s Additional Statement dated 8 January 2021, Para 8), 22, Transcript, 12.
[25] Exhibit A1, (Applicant’s Additional Statement dated 8 January 2021, Para 9), 22, Transcript, 11.
[26] Exhibit A1, (Applicant’s Additional Statement dated 8 January 2021, Para 9), 22.
The Applicant started seeing a woman who is older than his mother. He left home and moved in with her. She was a heavy drug user and their relationship was toxic. [27] She became pregnant with twins however had a miscarriage and lost both babies. They were both devastated at this loss and did not know how to process their emotions.[28] When they broke up, he turned to alcohol and other substances to numb his feelings.[29]
[27] Exhibit A1, (Applicant’s Additional Statement dated 8 January 2021, Para 13), 23, Transcript, 13.
[28] Exhibit A1, (Applicant’s Additional Statement dated 8 January 2021, Para 13), 23.
[29] Exhibit A1, (Applicant’s statement dated 13 October 2020, Para 7), 177.
Employment
When the Applicant left school, he looked for work but was unsuccessful in securing employment. He has held no stable employment but has had some casual work washing cars and has undertaken work experience.[30]
[30] Exhibit A1, (Watson Munro report) 52.
Criminal history in Australia
The Applicant’s criminal history in Australia are set out in the Australia Criminal Intelligence Commission’s Check Results report dated 11 September 2020.[31]
[31] Exhibit R1, G30 191-194.
On 18 May 2017, the Applicant was convicted in the Local Court of New South Wales for Take and drive conveyance without consent of owner and Learner not accompanied by driver/police officer/tester. He was fined and disqualified from driving for three months and was fined $1,000.[32]
[32] Exhibit R1, G30, 194.
On 24 August 2017, the Applicant was convicted in the Local Court of Parramatta for the following offences:
(a)Take and drive conveyance without consent of owner (two offences);
(b)Drive motor vehicle during disqualification period (three offences);
(c)Goods in personal custody suspected being stolen (not motor vehicle); and
(d)Not give particulars to owner of damaged property.[33]
[33] Exhibit R1, G30, 193-194.
The Local Court of Parramatta imposed a good behaviour bond for a period of 15 months, disqualified the Applicant from driving for 12 months and issued a fine for a cumulative amount of $1,800.[34] The Applicant appealed the severity of the outcome in relation to the offences of Take and drive conveyance without consent of owner and Drive motor vehicle during disqualification period. On 9 October 2017, the Parramatta District Court confirmed the decision, and issued an order for imprisonment for eight months, which was suspended upon entering a bond.[35]
[34] Exhibit R1, G30, 193-194.
[35] Exhibit R1, G30, 193.

On 16 March 2018, while subject to a good behaviour bond, the Applicant was convicted of the following offences in the Parramatta Local Court:
(a)Take and drive conveyance without consent (two offences);
(b)Drive motor vehicle during disqualification period;
(c)Not obey direction of police/authorised person;
(d)Drive conveyance taken without consent of owner; and
(e)Resist or hinder police officer in the execution of duty.[36]
[36] Exhibit R1, G30, 193.
The Applicant was sentenced to a term of imprisonment of eight months commencing on 9 January 2018, with a non-parole period of three months.[37]
[37] Exhibit R1, G30, 193.
On 20 June 2018, the Applicant was convicted in the Hornsby Local Court for possessing a prohibited drug and was fined $100.[38]
[38] Exhibit R1, G30, 193.
On 5 August 2019, the Applicant was convicted of the following offences in the Fairfield Local Court and was fined a cumulative amount of $700:
(a)Goods in personal custody suspected being stolen;
(b)Shoplifting;
(c)Enter enclosed land not prescribed premises without lawful excuse; and
(d)Resist officer in execution of duty.[39]
[39] Exhibit R1, G30, 193.
On 31 October 2019, the Applicant was convicted in the Mount Druitt Local Court for goods in personal custody suspected being stolen. He was sentenced to a community corrections order for 12 months, which would conclude on 30 October 2020.[40]
[40] Exhibit R1, G30, 192.
On 17 January 2020, the Applicant was arrested for Destroy or damage property, Common assault and Stalk/intimidate intend fear physical (domestic) while he was subject to a community corrections order. The New South Wales Police Fact Sheet records that the Applicant’s offences occurred on 1 January 2020.[41] The victim of the Applicant’s offending was his then partner who he had known for approximately three years and had ‘been in an on and off intimate relationship [with her] throughout this time’ and had been living with her for approximately two months. On the day of the offending, the victim received a message from a female unknown to her, claiming that she too was in an intimate relationship with the Applicant. Upset by this message, the victim removed the Applicant’s belongings from the house, placed them on the driveway and messaged the Applicant to come and collect them and to leave the house. When the Applicant arrived back, he could not find a black Culture Kings jacket valued at $400. He tried to enter the house, however he was unable to do so as the victim had locked the front screen. With the victim “yelling” at him to leave, the Applicant pulled the fly-screen off its hinges and threw it on the ground. He also damaged the wooden frame of the door and bent the fly- screen, so that the victim was unable to close it. As the victim was standing in the way, the Applicant grabbed the victim by her right forearm and pulled her backwards onto the ground outside, saying "You dumb bitch, you're lucky you're a girl or I'd smash you." He then entered the property, retrieved his jacket and left. Police attended the victim’s premises after she called them and she provided the above version of events, however refused to provide a written or video recorded statement. The Police observed a small red mark on the inside of the victim's right forearm from where the Accused grabbed her. The Applicant was arrested on 17 January 2020 and made full admissions.[42]
[41] Exhibit R1, G35, 219-222.
[42] Exhibit R1, G35, 222
On 30 March 2020, the Applicant was convicted in the Parramatta Local Court of these offences.[43] In his sentencing remarks, Magistrate Feather remarked that it ‘would have been a frightening experience for [the victim] to have [the Applicant] behave in this type of way towards her.’ He found that ‘there was probably some degree of provocation in relation to this offending. That is, that [his] relationship with [the victim] was at an end.’ He noted that the Applicant had not been before a Court for violent offending in the past. He concluded that the Applicant’s offending for both offences ‘probably sits below the middle of the range of objective seriousness for offences of this nature.’ However, the offending was aggravated by the fact that the Applicant was subject at the time to a Community Corrections Order for a prior offence.[44]
[43] Exhibit R1, G30, 192.
[44] Exhibit R1, G34, 211 – 218
The Applicant was sentenced to a community correction order for two years. As a result of this offence, the Applicant was made subject to an Apprehended Domestic Violence order prohibiting him from making contact with his former partner until March 2022.
On 11 June 2020, the Applicant was convicted in the Parramatta Local Court for the offence Goods in personal custody suspected being stolen (not motor vehicle).[45] The Applicant was sentenced to a community correction order for a period of 18 months, which would conclude on 10 December 2021.[46]
[45] Exhibit R1, G30, 192
[46] Exhibit R1, G30, 192.
On 3 September 2020 the Applicant was convicted in the Local Court in Parramatta of the offences Resist officer in execution of duty (two convictions) and Use offensive weapon with intent to commit indictable offence (two convictions) and was sentenced to a term of imprisonment on 18 months with a non-parole period of seven months.[47] Upon appeal, on 18 November 2020, the Court varied this sentence to an aggregate term of 11 months imprisonment, with a non-parole period of seven months, commencing on 3 March 2020.[48]
[47] Exhibit R1, G30, 192.
[48] Exhibit R1, G33, 209.
The victim of the Applicant’s offence of Use offensive weapon with intent to assault was a parking patrol officer for Parramatta City Council (‘the parking officer’) who was rostered for duty on the day. The parking officer saw the Applicant “grabbing an Indian male, an unidentified male” who pushed him away. The Applicant then grabbed the male by the arm, at which point the parking officer intervened to assist him and tried to pull the Applicant away from the man. This ended in a struggle, with the Applicant threatening to stab him and lunging at the parking officer with a red comb that was sharp at one end and appeared to be a knife, while making a stabbing motion, before grabbing the parking officer, who then fell to the ground bud did not sustain any injuries. In his sentencing remarks, Magistrate Feather found the Applicant’s offending “probably sits at the lower middle, perhaps a little bit at the lower end of the range of objective seriousness for offences of that nature.”[49]
[49] Exhibit R1, G32, 204.
The Applicant was later captured on CCTV footage that showed him approaching the unidentified male waiting at a street corner, where he was using his mobile phone. The Applicant stood in front of him and raised his right arm while holding an object towards his head. When the victim turned away, the Applicant held the object near his neck, but then turned and walked away from him. This resulted in the Form 1 matter of Use etc. offensive weapon w/i to commit indictable offence.[50] Magistrate Feather remarked that the objective seriousness of this offence “would sit below the lower middle end of the range of seriousness of offences of that nature.”
[50] A Form 1 is an ancillary charge to which an offender admits guilt without a judicial process - the admission does not result in a formal conviction but is taken into account in the sentence for the primary charge.
According to Magistrate Feather’s sentencing remarks, the Applicant’s two counts of Resist or hinder police officer in the execution of duty resulted from his resisting arrest at a hospital on 3 March 2020 by refusing to get on the ground when asked to do so. Additionally, he lunged at a Senior Constable and was taken to the ground by four police officers, however continued to resist while he was on the ground. When later taken to Westmead Hospital, the Applicant became restless, stopped following orders and resisted the efforts of two constables who were trying to help him stand up after he slid to the floor. The Applicant told the Tribunal that Westmead Hospital is where his mother works and she was working on this day.[51]
[51] Transcript, 38.
Magistrate Feather remarked that he had ‘no doubt’ that the Applicant was affected by the drug crystal methylamphetamine when he offended on 3 March 2020, and noted that he had to be sedated and restrained on a hospital bed for his own safety. The Magistrate found these offences to be at ‘the lower middle end of the range of seriousness for offences of that nature.’[52]
[52] Exhibit R1 G32, 205
Documents produced by the NSW Police Force show that the Applicant's criminal conduct includes 66 transport offences between 31 October 2015 and 17 January 2020.[53] The offences generally involve the Applicant using NSW public transport without paying a fare.
[53] Exhibit R2, SG1, 342- 347
Remorse and responsibility for offending
In his Statement dated 8 January 2021, the Applicant wrote
I understand the seriousness of my charges and I accept full responsibility for all of the offences I have committed in the past and all of the people that have been impacted by my offending. I am truly sorry for my actions. I want to express my deep regret and my sincere remorse for my irresponsible and dangerous actions. There is no excuse for my actions. … I have spoken to a psychologist and I have come to a deeper understanding of the impact on the community of my decision to buy drugs and alcohol, and the danger I exposed both myself to and exposed others to.[54]
[54] Exhibit A1, (Applicant’s Additional Statement dated 8 January 2021, Para 10), 23.
The Applicant told the Tribunal that at the time of his offending he was experiencing depression and anxiety and his ‘mind wasn’t at the right place’.[55] If he had the chance to apologise to his victims he would do so. He has respect for the police and authority in general.[56]
[55] Transcript, 10.
[56] Transcript, 15.
Courses and programs in gaol
When he was in gaol in 2017, the Applicant did a Positive Lifestyle Program. He has undertaken a number of other courses in gaol including the EQUIPS foundations program, and the Follow-On Youth Recovery Support Team with the Salvation Army. [57] At Yongah Hill IDC, the Applicant completed a Life Skill Program which assists participants with anger management and communication skills.[58]
[57] Exhibit A1, (Applicant’s SFIC, Para 16) 6, Transcript, 16-17.
[58] Exhibit A1, (Applicant’s Statutory Declaration dated 16 April 2021Para 13) 14,Transcript, 17.
The Applicant told the Tribunal that he has learned through these courses that there is help out there for him If he really needs it, which he does, and to seek help when he gets outside so he can be a better person.[59]
[59] Transcript, 17.
Rehabilitation
The Applicant told the Tribunal that he has not taken any illegal substances or consumed any alcohol since March 2020.
Behaviour in gaol
The Applicant worked in a warehouse packaging food that is sent to the gaols.[60] He was involved in an incident in August 2020 when two inmates tried to assault him when he ‘didn’t give them what they wanted.’ He was also caught with possessing a tobacco e-cigarette.[61]
[60] Exhibit A1, (Applicant’s Statutory Declaration dated 16 April 2021, Para 10) 14, Transcript, 16.
[61] Exhibit A1 (Applicant’s Statutory Declaration dated 16 April 2021, Para 11-12) 14,, Transcript, 15-16.
Incidents in immigration detention
The Applicant has not been involved in any incidents in immigration detention.[62]
[62] Exhibit A1 (Applicant’s SFIC, Para 16) 6 – 7.
Health issues
The Applicant has recently been confirmed to have Hepatitis B. It is not affecting him too much presently, but if it gets worse, he will be prescribed medication.[63]
[63] Transcript, 17.
Psychological report
Mr Tim Watson-Munro, consultant psychologist, examined the Applicant and provided a report dated 5 February 2021.[64] In his report, he noted that the Applicant ‘presents as a co-operative though psychologically troubled man’.[65] He reported that the Applicant's primary drugs of abuse have been crystal methylamphetamines and alcohol and at the time of the offending behaviour he was abusing both drugs.[66] During the period of his offending behaviour the Applicant ‘was very much in a state of crisis.’[67] He was ‘experiencing high levels of depression, anxiety, paranoia and low self-esteem.’[68] His drug use ‘led to severe rebound depression, sleep deprivation for up to a week at a time, as well as occasional psychotic breaks.’[69] As a result, ‘his judgment and capacity to effectively negotiate his life was severely impaired.’[70] The Applicant’s relationship with his former partner who was using ice led to ‘a period of significant co-dependency’ between them and ‘attendant recrudescence of his drug use [and] further deterioration in his capacity to manage his life.’[71]
[64] Exhibit R1, G25 167-178.
[65] Exhibit A1, (Watson-Munro report) 57.
[66] Exhibit A1 (Watson-Munro report) 54.
[67] Exhibit A1 (Watson-Munro report) 57. Transcript, 76.
[68] Exhibit A1 (Watson-Munro report) 57.
[69] Exhibit A1 (Watson-Munro report) 57 - 58.
[70] Exhibit A1 (Watson-Munro report) 58.
[71] Exhibit A1 (Watson-Munro report) 58. Transcript, 76.
Mr Watson-Munro noted that the Applicant previously had a period of 12 months when he remained drug free, which indicates that ‘when he is provided structure and supervision’ he manages more effectively.[72] He has now been drug free since March 2020 and he is ‘no longer paranoid’ and when assessed he had ‘no indications of major psychiatric disturbance’ and was ‘respectful and cooperative’.[73] In his opinion, the Applicant’s Substance Abuse Disorder ‘is certainly in Partial Remission trending towards total Remission, which occurs after a period of two years of non-drug use.’[74] In his oral evidence, Mr Watson-Munro told the Tribunal that the Applicant will however require ‘continued support in the community … to reinforce the progress he’s making.’[75]
[72] Exhibit A1 (Watson-Munro report) 58.
[73] Exhibit A1 (Watson-Munro report) 54.
[74] Exhibit A1 (Watson-Munro report) 58, Transcript, 77.
[75] Transcript, 80 - 81.
Mr Watson-Munro administered the Beck Depression Inventory, which confirmed that the Applicant suffers from Depressive Disorder.[76] He also had regard to the Hare Psychopathy Checklist and concluded that the Applicant is a ‘non-psychopathic criminal’.[77] He formed this view based on the Applicant's attitude to his offending, which has been characterised by remorse, his young age, his desire to move forward with his life, and his willingness to undertake treatment.[78] Mr Watson-Munro told the Tribunal that the Applicant ‘expressed a desire to have treatment’ and ‘he wants to return to his family’ and ‘to become the person that he was before he started using drugs and alcohol.’[79]
[76] Exhibit A1 (Watson-Munro report) 54.
[77] Exhibit A1 (Watson-Munro report) 55.
[78] Ibid.
[79] Transcript, 76.
In his report, Mr Watson-Munro noted that the Applicant ‘acknowledged longstanding symptoms of depression, anxiety and low self-esteem’ and that he had not obtained formal treatment whilst incarcerated or in detention. The Applicant has the support of his mother, is substance free, and has aspirations to join the workforce.[80] Mr Watson-Munro recommended the Applicant attend weekly sessions with a clinical psychologist for a period of 6-12 months, subject to progress.[81] He recommended that the Applicant should, as a first step, see his GP and get a mental health plan and obtain referrals to a psychologist.[82] In his opinion, the Applicant would benefit from consistent dialectical behavioural therapy that addresses mood and substance disorders. He would also benefit from skills-based training focussed on relapse prevention strategies, systemic desensitisation to reduce his anxiety, and supportive and motivational psychotherapy.[83] However, in the absence of treatment, the Applicant is vulnerable to peer group dynamics.[84] With treatment, the Applicant’s prognosis will ‘continue to improve’ and ‘[h]e is now trending from a moderate to low risk of re-offending’.[85] Mr Watson-Munro told the Tribunal that the Applicant ‘has matured and there are now protective factors in place in terms of family, church, insight, being drug and alcohol free’ and so he is ‘trending towards low risk.’[86] In his opinion, the Applicant’s ‘criminal behaviour is not so entrenched that it’s going to be difficult or impossible to shift.’[87]
[80] Exhibit A1 (Watson-Munro report) 55.
[81] Exhibit A1 (Watson-Munro report) 60 – 61, Transcript, 77.
[82] Transcript, 83.
[83] Transcript, 77.
[84] Exhibit A1 (Watson-Munro report) 53, Transcript, 81.
[85] Exhibit A1 (Watson-Munro report) 58.
[86] Transcript, 77.
[87] Transcript, 81.
Mr Watson-Munro stated in his report that the Applicant is fearful of being returned to Sierra Leone and if he is separated from his mother this ‘inevitably would lead to a further escalation of his depression, anxiety and despair.’ He told the Tribunal that if the Applicant is removed his depressive disorder will be aggravated as he has no family in Sierra Leone and no prospects of employment.[88] It is also highly unlikely that he would be able to receive the treatment the Applicant requires in Sierra Leone.[89]
[88] Transcript, 78.
[89] Exhibit A1, (Watson Munro report) 59, Transcript, 78.
Family in Australia
The Applicant’s mother, step-father, step-siblings, aunties and cousins live in Australia. He has a very good relationship with his mother and his step-father, who he considers to be more of a father than his biological father.[90] He speaks to his mother on the phone frequently and they talk about ‘everything’ and she ‘calms [his] mind’.[91] Due to COVID-19, his family was unable to visit him in gaol or at Villawood Immigration Detention Centre and in February this year he was transferred to Yongah Hill IDC. He could (and did) however speak to his family via Facetime.[92]
[90] Transcript, 9.
[91] Transcript, 19.
[92] Transcript, 19.
The Applicant told the Tribunal that his step-siblings, P, E and L, look up to him like an older brother and he wants to set a good example and be a mentor for them.[93] They have a close relationship and he speaks to them regularly, listens to their problems and tries to help them out as much as he can. He lived with his mother, step-father and his siblings before he moved out of home at the age of 18 years. Before he left home, he would take his siblings to school and pick them up at the end of the day. When his mother and step-father were working he would take care of them until his parents returned home.[94]
[93] Transcript, 10.
[94] Transcript, 44.
Family in Sierra Leone
The Applicant told the Tribunal that his grandmother is still living in Sierra Leone but she is very sick and his auntie is taking care of her.[95] He is not in touch very often with his grandmother as there is not a good internet connection and he does not have the credit to make calls to her.[96] He does not know much about his other relatives and he is not in contact with them.[97]
[95] Transcript, 19, 42.
[96] Transcript, 21.
[97] Transcript, 20, 42.
Future plans
The Applicant told the Tribunal that if he is released back into the community he will live with his mother. She will help him look for programs he can do in the community so that he can eventually get a job. Before he went to gaol he was studying at TAFE and did a Certificate III course in Disability Services which he almost had finished.[98] He would like to complete this course and work as a disability worker or possibly in the construction industry.[99] He would first work as a labourer to earn the money he need to pay to complete the course.[100]
[98] Transcript, 18, 45.
[99] Transcript, 45.
[100] Transcript, 46.
The Applicant no longer has any contact with the friends with whom he engaged in criminal offences. He has ‘never spoken to them’ and ‘never will’. He is in touch with some of his friends from high school and they want to help him when he returns to the community, including to help him get a job.[101] One of his friends has his own business and he has given him his number and said to call him when he leaves immigration detention.[102]
[101] Transcript, 18.
[102] Transcript, 46.

The Applicant told the Tribunal that he plans to see a GP and get a referral to see a psychologist who he would see on a regular basis.[103]
[103] Transcript, 47.
Impediments on return
In his Statement dated 13 October 2020, the Applicant wrote:
I understand that if the decision to cancel my visa is not revoked, it might mean that I have to return to Sierra Leone. This would be terrible for me, and would cause me a lot of damage to not only my mental health, but my family’s mental health as well.
I am used to a safe secure life in Australia. I would not be able to survive in Sierra Leone. I only know my grandmother and a couple of aunts and an uncle in Sierra Leone, who are all very elderly.
I fear that there will be people in Sierra Leone who might want to harm me if they find out the circumstances under which I would be returned. Word travels fast in Sierra Leone, and they will think I am a disgrace. People in the community may try to hurt me.
If I were returned to Sierra Leone, I would fear that I would not be able to support myself. I left when I was very young. I worry that I would be homeless and I wouldn’t be able to support myself financially. I would have to live on the street, and I know that is not a nice place. I do not think that I would have access to any mental health care either …[104]
[104] Exhibit A1, (Applicant’s statement dated 13 October 2020, Paras 12 - 15), 19
The Applicant told the Tribunal that if he was returned to Sierra Leone he would be unable to get a job and would be homeless. He would not be able to get an income and he would not be able to get treatment for his Hepatitis B condition.[105] He is not fluent in the language and is no longer familiar with the culture in Sierra Leone.[106]
[105] Transcript, 20.
[106] Exhibit A1 (Applicant’s statement dated 16 April 2021, Para 8), 14
Marie Conteh
Mrs Conteh provided a statutory declaration dated 12 April 2021.[107] She confirmed that she was separated from her son during the civil war in Sierra Leone and did not see him again until he joined her in Australia when he was 10 years old. The Applicant was well-behaved growing up until he met a new group of friends and started taking drugs and alcohol and began offending.[108] On one occasion, when she asked the Applicant about the contents of his bag, he denied it was his. She and her husband were concerned about his behaviour and they contacted Paramatta Police Station but the police were unable to do anything because of his age.[109] She then heard her son had been arrested and she was ‘shocked’ and cried.[110] It became hard for her to contact her son despite sending him many messages to which he did not reply.[111]
[107] Exhibit A1 (Statutory declaration of Marie Conteh dated 12 April 2021 Para 4) 29
[108] Exhibit A1 (Statutory declaration of Marie Conteh dated 12 April 2021 Para 9) 30
[109] Transcript, 53-54.
[110] Transcript, 54.
[111] Transcript, 56.
Mrs Conteh told the Tribunal that on the night of his most recent arrest, she was working at Westmead Hospital when he was admitted. She saw him sitting with the police and she was ‘shocked’. The Applicant was ‘not the person’ she knows. He was ‘very out of place’ and ‘drowsy’.[112] She spoke to the treating doctor who told her ‘[i]t’s definitely drugs’ that were affecting the Applicant.[113]
[112] Transcript, 56.
[113] Transcript, 57.
In her Statement dated 13 October 2020, Mrs Conteh wrote that she has seen ‘great changes’ in the Applicant since he has been in custody.[114] They regularly speak on the phone or via video call. He ‘constantly says sorry for the mistakes he has made and for putting his family through this pain. He is embarrassed, ashamed and remorseful of his actions’.[115] She has not been able to visit the Applicant in gaol or in detention which has been very hard for them both.[116]
[114] Exhibit A1 (Statutory declaration of Marie Conteh dated 13 October 2020, Para 6) 34.
[115] Exhibit A1 (Statutory declaration of Marie Conteh dated 13 October 2020, Para 6) 34, Transcript, 57.
[116] Transcript, 58.
Mrs Conteh confirmed that the Applicant will move back into their house if he is released from immigration detention and will live with her, his step-father and three siblings.[117] The Applicant and his siblings have a ‘very good, close relationship’ and a ‘strong sibling bond’. The younger children love and miss their brother and are always asking when they will see him.[118] It would be ‘devastating for them all’ if he were removed from Australia.[119]
[117] Transcript, 63.
[118] Transcript, 59.
[119] Exhibit A1, (Statutory declaration of Marie Conteh dated 13 October 2020, Para 7) 34.
In her Statement dated 13 October 2020, Mrs Conteh wrote that she has made inquiries about the assistance available to her son when he is released, including drug and alcohol assistance, youth programs and church chaplains. He has told her that ‘he is willing to accept any help available to him.’[120] She is seeing her ‘old son back’ and could not be happier.[121]
[120] Exhibit A1 (Statutory declaration of Marie Conteh dated 13 October 2020, Para 8) 34.
[121] Exhibit A1 (Statutory declaration of Marie Conteh dated 13 October 2020, Para 9) 35.
Mrs Conteh told the Tribunal that if her son is released, she will provide him with support, and she will get him off drugs. She has a close friend who is a mental health nurse who has said she will provide help to the Applicant.[122] She also has the support of a friend who is with the Salvation Army and has worked with youths with drug addictions.[123] Mrs Conteh also said she intends to book the Applicant in to see a psychologist for his mental health and drug issues.[124] She will also assist him with the process of making applications for jobs.[125] Together they will get him off drugs and get him a job and make him responsible for himself and his life.[126]
[122] Transcript, 64.
[123] Transcript, 63
[124] Transcript, 65.
[125] Transcript, 66.
[126] Transcript, 63.
If her son has to return to Sierra Leone, it ‘would be terrible for him, and would cause a lot of damage to his mental health’ and also to her mental health and would cause damage to her family in Australia.[127] The Applicant would have ‘no support’ if he were to be returned to Sierra Leone as her family members there ‘can barely manage to look after themselves’ and he would not be able to find a job.[128] Her mother lives in Sierra Leone but her health and living conditions are not good and the Applicant would not be able to live with her.[129]
EXERCISE OF DISCRETION TO REVOKE MANDATORY CANCELLATION
[127] Exhibit A1 (Statutory declaration of Marie Conteh dated 13 October 2020, Para 10) 35.
[128] Exhibit A1 (Statutory declaration of Marie Conteh dated 13 October 2020, Para 12) 35.
[129] Transcript, 62.
Does the Applicant pass the character test?
In the representations and documents that the Applicant submitted to the Department and the Tribunal, he does not dispute the information in the Australia Criminal Intelligence Commission’s Check Results report dated 11 September 2020 regarding his criminal convictions and sentences.
The Australia Criminal Intelligence Commission’s Check Results report records that on 3 September 2020, the Applicant was convicted in the Local Court of New South Wales for two counts of the offence Using an offensive weapon to commit an indictable offence and two counts of Resist officer in execution of duty for which he was sentenced to 18 months imprisonment, with a non-parole period of seven months.[130] Upon appeal, on 18 November 2020, the District Court varied this sentence to an aggregate term of 11 months imprisonment, with a non-parole period of seven months, commencing on 3 March 2020.[131]
[130] Exhibit R1, G30, 191 - 192
[131] Exhibit R1, G33, 209
The Applicant no longer fails the character test on the same grounds as those which led to the Mandatory Visa Cancellation Decision on 16 September 2020. The appeal decision of the District Court on 18 November 2020 followed the Mandatory Visa Cancellation Decision and varied the sentence to an aggregate term of 11 months imprisonment, with a non-parole period of seven months. In considering the Applicant’s request for revocation of the Mandatory Visa Cancellation Decision, the delegate was not satisfied that the Applicant failed the character test under section 501(6)(a) with reference to s 501(7)(c) of the Act, but found it was open to them to consider whether the Applicant did not pass the character test on another ground for the purposes of deciding whether to exercise the discretion to revoke the Mandatory Visa Cancellation Decision. The delegate noted that s501(7)(d) of the Act provides grounds for finding that a person does not satisfy the character test and that the Applicant had been sentenced to two or more terms of imprisonment where those terms exceed 12 months, and was therefore satisfied that the Applicant did not pass the character test under s 501(6)(a) the Act.
The evidence before the Tribunal is that the Applicant has been sentenced to two or more terms of imprisonment totalling 12 months or more. These include the sentence of eight months, suspended on entering a bond, imposed by the Local Court on 24 August 2017 and confirmed on appeal by the District Court on 9 October 2017 for the offences Take and drive conveyance without consent of owner and Drive motor vehicle during disqualification period. On 16 March 2018 the Applicant was sentenced by the Local Court to eight months imprisonment with a non-parole period of three months for the offences Take and drive conveyance without consent of owner, Drive motor vehicle during disqualification period (2nd offence), Not obey direction of police/authorised person, Drive conveyance taken without consent of owner and Resist or hinder police officer in the execution of duty. On 18 November 2020, the original sentence imposed by the Local Court for the offences Resisting officer in execution of duty, Use offensive weapon with intention to commit indictable offence, and the Form 1 matter for Use offensive weapon with intention to commit indictable offence was varied on appeal by the District Court to aggregate term of 11 months imprisonment, with a non-parole period of seven months. On the basis of this evidence, the Tribunal is satisfied that the Applicant does not pass the character test prescribed in s 501(6)(a) of the Act, as he has ‘a substantial criminal record’ as defined by reference to s 501(7)(d) of the Act.
The Tribunal is also satisfied, for the purposes of paragraph 501(3A)(b) of the Act, that on 16 September 2020, the Applicant was serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the state of New South Wales.
For these reasons, the Applicant cannot rely on subparagraph 501CA(4)(b)(i) for revocation of the Mandatory Visa Cancellation Decision.
Is there ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked?
In determining whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, the Tribunal must in accordance with paragraphs8 and 9 of the Direction take into account the relevant ‘primary considerations’ and ‘other considerations’.
PRIMARY CONSIDERATIONS
Primary Consideration 1 – Protection of the Australian community
Reiterating the general guidance and principles in the Direction, paragraph 5.2 states that:
a)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; and
b)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage 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 measurable risk of causing physical harm to the Australian community.
Paragraph 8.1(2) states that in considering the need for protection of the Australian community, decision-makers should also have regard 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.
(a) Nature and seriousness of the Applicant’s conduct to date
Paragraph 8.1.1 sets out factors to be considered in determining the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. Relevant to the Applicant’s conduct, the Tribunal must have regard to the following factors:
(a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)     violent and/or sexual crimes;
(ii)    crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)   acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)     …
(ii)    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;
(iii)   …
(iv)   …
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)…
(g)…
Having regard to the factors in paragraph 8.1.1 of the Direction, the Tribunal finds, for the following reasons, that the Applicant’s offending is very serious. The Applicant’s most significant criminal offending commenced when he was aged 18 years. In the three year period between May 2017 and March 2020 the Applicant committed a number of offences, including Take and drive conveyance without consent of owner; Learner not accompanied by driver/police officer/tester; Drive motor vehicle during disqualification period; Goods in personal custody suspected being stolen; Not give particulars to owner of damaged property; Not obey direction of police/authorised person; Resist or hinder police officer in the execution of duty; Possess prohibited drug; Shoplifting; and Enter inclosed land not prescribed premises without lawful excuse. Most of these non-violent and less serious offences were dealt with by way of fines, disqualifications, community corrections orders and community service.
The offences for which the Applicant was convicted on 3 September 2020 were serious. In his sentencing remarks for these offences, Magistrate Feather found that Use offensive weapon with intention to commit indictable offence, sits below the lower middle of the range of seriousness, and the counts of Resist or hinder police officer in the execution of duty, sit at the lower middle end of the range of seriousness. The Tribunal has had regard to the evidence before it that the offence Use offensive weapon with intention to commit indictable offence was not premeditated, the Applicant’s actions were triggered by racist comments, the offensive weapon used was a comb, not a knife, and there were no injuries sustained by the victim. The Applicant’s offences of Not obey direction of police/authorised person; and Resist or hinder police officer in the execution of duty are crimes committed against government officials in the performance of their duties, and in accordance with paragraph 8.1.1(b)(ii) of the Direction, the Tribunal finds these offences are serious.
The Applicant concedes that his acts of family violence against his former partner and his actions against a vulnerable member of the community in the performance of their duties is to be viewed very seriously. These offences include Stalk, intimidate intend fear physical harm and Destroy or damage property convictions in relation to his former partner, and Use etc offensive weapon with intention to commit indictable offence against the parking officer. Having regard to the factors in paragraphs 8.1.1(a)(ii) and (iii) and (b)(ii) the Tribunal finds that these offences committed by the Applicant are very serious.
Having regard to paragraph 8.1.1(c) of the Direction, the custodial sentences imposed on the Applicant by the courts are an objective indicator of the seriousness of his criminal offending. Sentences involving terms of imprisonment are a last resort in the sentencing hierarchy, which reflects the objective seriousness of the offences involved: Jal v Minister for Immigration and Border Protection [2016] AATA 789 at [24]; PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22] and Saleh and Minister for Immigration and Border Protection [2017] AATA 367 at [50]. In relation to the Applicant’s most recent offending in March 2020, the District Court on appeal imposed an aggregate term of 11 months imprisonment, with a non-parole period of seven months, for the offences Resisting officer in execution of duty, Use offensive weapon with intention to commit indictable offence, and the Form 1 matter for Use offensive weapon with intention to commit indictable offence. The Tribunal notes that the maximum penalties for these offences is 12 months and 12 years respectively and therefore finds that the custodial sentences imposed on the Applicant for these offences are at the lower end of the range.
Having regard to the factors in paragraph 8.1.1(d) of the Direction, the Tribunal has considered the frequency of the Applicant’s offending and whether there is any trend of increasing seriousness. In relation to the Applicant’s 66 transport offences, the frequency of his offending increased during the period of October 2015 to January 2020, and he was often involved in incidents on consecutive days and, on three occasions, twice on the same day. In relation to the Applicant’s convictions relating to his stealing motor vehicles on two occasions, these offences must be considered serious due to the frequency of the offending, including that the Applicant committed the second offence when he was subject to a good behaviour bond.
The Applicant’s criminal offending during the period of May 2017 to March 2020 was frequent and repetitive and more serious in nature than his earlier offending. In his sentencing remarks, Magistrate Feather stated that the Applicant had displayed ‘a continuing attitude of disobedience to the law’.[132] Having regard to paragraph 8.1.1(e) of the Direction, when viewed in their totality, the Applicant’s repeated and frequent offences must be regarded as very serious.
[132] Exhibit R1 G32, 205.
On the basis of the evidence before it, and for the stated reasons, the Tribunal finds that the Applicant’s criminal offending is very serious in nature and this weighs against the exercise of the discretion to revoke the Mandatory Visa Cancellation Decision.

(b) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

Paragraph 8.1.2(1) of the Direction states
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should 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 harms increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

Paragraph 8.1.2(2) of the Direction provides that in assessing the risk that may be posed to the Australian community, decision-makers must have regard to, cumulatively:
a)    The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)    The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)     the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; 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).
…
Having regard to the nature of the harm to individuals or the Australian community if the Applicant were to reoffend in accordance with paragraph 8.1.2(a) of the Direction, the Tribunal finds that any future reoffending by the Applicant may involve physical and/or psychological harm, including serious injury, and/or the loss or damage to property. The Applicant’s criminal offending and other serious conduct has included actual and threatened physical violence committed against his victims and deprivation of their property. The Applicant’s violent and irresponsible behaviour has caused, and has the potential to cause in the future, substantial harm to future victims, being both the psychological and physical impacts of his offending. In addition, there is the financial harm to individuals associated with property offences, and the significant financial cost to the community associated with emergency services and law enforcement activities, of any future offending by the Applicant.
Having regard to the likelihood of the Applicant engaging in further criminal or other serious conduct in accordance with paragraph 8.1.2(b) of the Direction, the Tribunal notes that the Applicant has expressed his remorse for the offences he has committed. The Applicant claims to understand the seriousness of his offences and accepts ‘full responsibility’ for his offending and the impact on his victims.He has further expressed his ‘deep regret and … sincere remorse for [his] irresponsible and dangerous actions.’
The Applicant claims, and the Court accepted, that his offending was a result of drug use and the breakdown of his relationship with his former partner. The hospital records on the date of the Applicant’s most recent offending on 3 March 2020 record that he was affected by cannabinoids, methadone and opiates.[133] In his sentencing remarks, Magistrate Feather told the Applicant, ‘if you address the issue in relation to your use of illicit substances, if you successfully rehabilitate yourself from the use of illicit substances, particularly the drug crystal methylamphetamine, we will probably never see you back before the Court’.[134] The evidence before the Tribunal is that the Applicant has not consumed alcohol or drugs since March 2020. According to Mr Watson-Munro, given this period of abstinence, the Applicant is in partial remission in relation to his Substance Use Disorder and more than half-way towards the two-year period required for full remission. The Applicant has been abstinent in gaol and immigration detention despite, according to Mr Watson-Munro, the availability of drugs in both places.[135] The Applicant’s ability to abstain from drug and alcohol use has not been tested in the community. However, his evidence is that he no longer is in contact with his former friends or his former partner with whom he used and abused alcohol and illicit substances, and he has the support of his family to obtain the treatment and assistance he requires to remain drug and alcohol free.
[133] Exhibit R1 G16, 124 .
[134] Exhibit R1 G32, 206.
[135] Transcript, 80.
The evidence before the Tribunal is that the Applicant suffers from Depressive Disorder and according to Mr. Watson-Munro, the Applicant will require treatment from a psychologist for this condition. The Applicant’s evidence to the Tribunal is that he intends to see his GP and get a referral to see a psychologist who can provide him with a treatment program. The Applicant’s mother’s evidence is that she has a close friend who is a mental health nurse who has said she will provide help to the Applicant.[136]
[136] Exhibit R1 G18, 149.
In relation to the evidence of rehabilitation, the Applicant completed various courses in gaol, including the EQUIPS foundations program and the Follow-On Youth Recovery Support Team (FYRST) with the Salvation Army. These courses were not mandatory, and the Applicant chose to undertake them to better himself. He recently completed a Life Skill Program at Yongah Hill IDC which assists participants with anger management and communication skills.
The evidence of Mr. Watson-Munro is that, if he undergoes appropriate treatment, the Applicant’s prognosis will ‘continue to improve’ and ‘[h]e is now trending from a moderate to low risk of re-offending’.[137] In his opinion, the Applicant ‘has matured and there are now protective factors in place in terms of family, church, insight, being drug and alcohol free’ and so he is ‘trending towards low risk.’[138] In his opinion, the Applicant’s ‘criminal behaviour is not so entrenched that it’s going to be difficult or impossible to shift.’[139]
[137] Exhibit A1 (Watson-Munro report) 58.
[138] Transcript, 77.
[139] Transcript, 81.
On the basis of the evidence before it and taking into account available information and evidence on the risk of the Applicant re-offending, the Tribunal finds that the likelihood of the Applicant engaging in further criminal or other serious conduct is at the low end of the scale. While the Tribunal finds that the risk of the Applicant re-offending is low, the potential harm to individuals should he engage in the same or similar criminal conduct is serious.
For the reasons above and applying the guidance in paragraphs 8.1.1 and 8.1.2 of the Direction, Primary Consideration 1 weighs on balance against the revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 2 – Family violence committed by the non-citizen
This Primary Consideration is relevant in the Applicant’s circumstances as he has been convicted of offences that involve family violence. On 30 March 2020 the Applicant was convicted for Destroy or damage property and Stalk/intimidate intend fear physical (domestic) and sentenced to a community correction order for two years. The victim of these offences was the Applicant’s former partner.
In considering the seriousness of the family violence engaged in by the non-citizen, paragraph 8.2(3) of the Direction states that decision-makers must consider the following factors:
(a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
(b) the cumulative effective 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;
(iv)   ...
Having regard to the frequency of the Applicant’s family violence offending in accordance with paragraph 8.2(3)(a) of the Direction, the Tribunal notes that Magistrate Feather commented in his sentencing remarks that the Applicant had not previously appeared in court for this type of offending. He also noted that there was some degree of provocation in relation to these offences, and that they sit below the middle of the range of seriousness for offences of this nature. The evidence before the Tribunal is that this was the first occasion on which the Applicant had offended in this manner and his subsequent offending did not involve family violence. In relation to the factors in paragraph 8.2(3)(c) of the Direction, the Applicant’s evidence to the Tribunal is that he understands that family violence is serious, and its effects include both physical and psychological harm, and recognises that offences involving such violence are punishable in order to protect the victims involved. He has taken responsibility for his acts of violence against his former partner and will not commit such offences in the future.
On the basis of the evidence before it and applying the guidance in paragraph 8.2 of the Direction, the Tribunal finds that the Applicant’s offences involving family violence are serious. Accordingly, Primary Consideration 2 weighs against the revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 3 – The best interests of minor children in Australia affected by the decision
Paragraph 8.3(1) of the Direction requires decision-makers to make a determination whether revocation is in the best interests of the child. This consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made: paragraph 8.3(2). If there is more than one child affected, the Tribunal must consider the interests of each child individually to the extent that their interests may differ: paragraph 8.3(3).
In considering the best interests of the child, paragraph 8.3(4) relevantly requires the following factors be considered:
(a) The nature and the duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c) The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d) The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or the non-citizen’s ability to maintain contact in other ways;
(e) Whether there are other persons who already fulfil a parental role in relation to the child;
(f) …
(g) …
(h) …
The relevant minor children are the Applicant’s step-siblings who have not yet turned 18 years of age. The Applicant has three minor siblings, P (aged 14 years), E (aged 12 years) and L (aged six years), who currently live in Sydney with their mother and father.
Having regard to the factors in paragraph 8.3(4)(a), the relationship between the Applicant and his minor siblings is non-parental, and there is limited evidence that the Applicant was performing a care-taker role for them prior to him being incarcerated in gaol and immigration detention. The evidence before the Tribunal is that the Applicant has been absent from the family home since early 2020 when he moved out to live with his former partner. The Applicant has not physically seen his siblings since he went to gaol because they have not been able to visit him as a consequence of the COVID-19 restrictions and him being transferred to Yongah Hill IDC. However, despite their physical separation, the Applicant has remained in very regular contact with his siblings via Facetime and phone calls. The evidence also is that when he was living at home, the Applicant would take his siblings to and from school and provide them with care, including preparing their meals, when his mother was at work.
Having regard to the factors in paragraph 8.3(4)(b) of the Direction, the evidence before the Tribunal is that if the Applicant were to have his visa reinstated he would move back into the family home and live with his mother, step-father and three minor siblings. His evidence is that he wishes to be a central figure in his siblings’ lives going forward and as the eldest son he needs to set a good example and be a mentor to them. The Applicant’s mother’s evidence is that her three minor children have a strong bond with the Applicant, and they miss him a great deal. The Applicant is therefore likely to play a positive role in his siblings’ lives for several years and at least until they reach adulthood.
Paragraph 8.3(4)(c) of the Direction requires consideration of the impact of the Applicant’s prior conduct, and any likely future conduct, on the children. The Applicant’s prior conduct includes abuse of drugs and alcohol which contributed to his criminal offending. There is no evidence that the Applicant’s prior conduct has had any negative impact on the children. If, however, the Applicant were to resume abuse of drugs and alcohol while living in his family home, this conduct would likely have a negative impact on his siblings.
The Applicant’s mother’s evidence is that if the Applicant were to be removed from Australia and separated from his siblings it would have a devastating impact on them. Whereas they could remain in contact with him via phone, video calls, text messages, and other electronic means, the children will be deprived of the Applicant’s physical presence in their lives. Accordingly, in relation to the factors in paragraph 8.3(4)(d) of the Direction, the Tribunal finds that the effect on the children of the Applicant’s removal from Australia would be highly detrimental.
The evidence before the Tribunal is that the Applicant’s mother and step-father have fulfilled and continue to fulfil a parental role in relation to his siblings, and there is no evidence to suggest that the children would not continue to receive proper care and support from their mother and step-father if the Mandatory Visa Cancellation Decision is not revoked. Accordingly, taking into account the factors in paragraph 8.3(4)(e) of the Direction, the Tribunal finds there are other persons who fulfil a parental role in relation to the children.
Applying the guidance in paragraph 8.3(4) of the Direction, the Tribunal finds that this primary consideration weighs heavily in favour of revocation of the Mandatory Visa Cancellation Decision as it is in the best interests of the Applicant’s minor siblings (individually and cumulatively) for the Applicant to have his visa reinstated and be permitted to remain in Australia.
Primary Consideration 4 – The expectations of the Australian community
Paragraph 8.4(1) of the Direction states:
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.
The Full Court of the Federal Court considered paragraph 11.3(1) of Direction 65, which is analogous to paragraph 8.4 of the Direction, in FYBR and Minister for Home Affairs [2019] FCAFC 185 (‘FYBR’). The majority (Charlesworth and Stewart JJ) concluded as follows:
·Paragraph 11.3 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to impute or ascribe to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.[140] It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations.[141]
·However, the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion.[142] It is necessary for the decision-maker to assess the applicant’s circumstances in order to reach an evaluative assessment of “appropriateness”.[143]
[140] Charlesworth J at [66]; Stewart J at [91].
[141] Charlesworth J at [67]; Stewart J at [104].
[142] Charlesworth J at [76].
[143] Stewart J at [97].
The effect of paragraph 8.4 is that it imputes to the Australian community the expectation that non-citizens who have permission to remain in Australia will obey Australian laws. The question to be addressed does not involve an inquiry into what the Australian community does or does not expect, because that is normatively expressed in the terms of the consideration: paragraph 8.4(4). Rather, the relevant inquiry is ‘whether it is appropriate to give more or less weight to a deemed community expectation’ of non-revocation of a mandatory visa cancellation ‘that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences.’[144] As a normative expression, this consideration indicates the likelihood that community expectation will in most cases lead to non-revocation, without dictating an inflexible conclusion. The question for a decision-maker is the weight to be attached to this consideration.
[144]Charlesworth J at [77]
Having regard to the expectations of the Australian community as stated in paragraph 8.4 of the Direction, the Applicant has breached numerous Australian laws and has been convicted of many offences in Australia. The Applicant’s offences include family violence, violent offences against women, and crimes against government officials in the performance of their duties, which, as recognised by paragraphs 8.4(2)(a), (c) and (d) of the Direction should generally result in the cancellation of the non-citizen’s visa.
The Applicant arrived in Australia at the age of 10 years and is now aged 22 years. Having regard to the factors in paragraph 5.2(4) of the Direction, particularly the length of time the Applicant has been in Australia, the Australian community would likely afford a higher degree of tolerance for the Applicant’s criminal behaviour as he has lived in Australia for more than half his life. The Tribunal finds that the length of time the Applicant has been living in Australia is a factor that supports a finding that there is a higher level of tolerance by the Australian community for his criminal conduct than there would be for a non-citizen who has not lived in the community for an extended period of time.
Having had regard to the Government’s views in relation to the expectations of the Australian community and giving them appropriate weight, and taking into account the nature, seriousness and impact of the Applicant's criminal offending, and the duration of his residency in Australia, the Tribunal finds that Primary Consideration 4 on balance weighs against revocation of the Mandatory Visa Cancellation Decision.
OTHER CONSIDERATIONS
While the primary considerations carry particular weight, the Direction acknowledges at paragraph 9 that ‘other considerations’ must be taken into account by the decision-maker where relevant. Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’
The Tribunal notes that these considerations are ‘other’ considerations, as opposed to ‘secondary’ considerations. As Colvin J observed in Suleiman v Minister for Immigration and Border Protection[2018] FCA 594at [23]:
... Direction 65 [now Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
International non-refoulement obligations

Paragraph 9.1 of the Direction requires the decision-maker to take into consideration Australia’s international non-refoulement obligations in making a decision whether to exercise the discretion to revoke a mandatory visa cancellation decision.
The Applicant stated that he did not seek to argue that the impediments he claims to face should he be returned to Sierra Leone engage Australia’s international non-refoulement obligations.[145] Accordingly, the Tribunal gives this other consideration neutral weight.
[145] Transcript, 4.
Extent of impediments if removed from Australia
The Direction states in paragraph 9.2:
(1)Decision-makers must consider 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.
Having regard to the factors in paragraph 9.2(1)(a), the evidence before the Tribunal is that the Applicant is 22 years of age and suffers from a number of diagnosed medical conditions, including Hepatitis B, Substance Use Disorder and Depressive Disorder. The evidence of Mr Watson-Munro is that if the Applicant is removed from Australia and separated from his mother this ‘inevitably would lead to a further escalation of his depression, anxiety and despair.’[146] He told the Tribunal that if the Applicant is removed his depressive disorder will be aggravated as he has no family in Sierra Leone and no prospects of employment.[147] In his opinion, it is also highly unlikely that he would be able to receive the treatment the Applicant requires in Sierra Leone.[148]
[146] Exhibit A1 (Watson-Munro report) 59
[147] Transcript, 78.
[148] Exhibit A1 (Watson-Munro report) 59, Transcript, 78.
In relation to the factors in paragraph 9.2(1)(b) of the Direction, the evidence before the Tribunal is that the Applicant is not fluent in his native language and is no longer familiar with the culture in Sierra Leone. He left his country as a 10 year-old child, and completed the majority of his schooling in Australia, and English is now his primary language.
In relation to the factors in paragraph 9.2(1)(c) of the Direction, the Tribunal finds that the Applicant will have the same access to government services as all citizens of Sierra Leone, but that the health care, welfare benefits and social services available to him will be significantly inferior, and not adequate, particularly given the medical conditions he suffers. The evidence before the Tribunal is that the Applicant’s elderly grandmother, two aunts and an uncle live in Sierra Leone. However, these family members are unlikely to be able to provide the Applicant with housing or any financial support. His grandmother is in poor health and she relies on financial support from her daughter in Australia to survive. The Applicant’s evidence is that he would have extreme difficulties adjusting to life in Sierra Leone, particularly in finding accommodation and paid work.
On the basis of the evidence before it, the Tribunal finds that the Applicant would face extreme hardship if he were to be returned to Sierra Leone. This includes the lack of social, medical and economic support that will be available to him on return, and the significant emotional distress he would experience being separated from his family members in Australia, particularly his mother.
Having had regard to the factors in paragraph 9.2 of the Direction, the Tribunal finds that this consideration weighs heavily in favour of the revocation of the Mandatory Visa Cancellation Decision.
Strength, nature and duration of ties to Australia
Paragraph 9.4.1 requires consideration of the strength, nature and duration of the Applicant’s family and social ties to Australia:
1)Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
2)Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
(a) How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) Less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The evidence before the Tribunal is that the Applicant has resided in Australia since August 2009 having arrived at the age of 10 years. He has very strong family ties in Australia, specifically his mother, step-father, three siblings, six aunties and two uncles. Having regard to paragraph 9.4.1(1) of the Direction, the evidence of the Applicant and his mother is that it would be ‘devastating’ for their family if the Applicant were removed from Australia. The Tribunal is satisfied that Applicant’s family members, who are Australian citizens or have a permanent right to remain in Australia, would be adversely impacted to a significant degree if the Applicant’s visa is not reinstated.
Having regard to paragraph 9.4.1(2)(a) of the Direction, the evidence is that the Applicant has resided in Australia for nearly 12 years having arrived here as a child to be reunited with his mother from whom he was separated in their home country of Sierra Leone. The Applicant completed his schooling in Australia, including Year 12, engaged in some non-permanent work, and undertook vocational studies to become a disability worker. The Applicant commenced offending in 2015, six years after his arrival, but his most significant offending started when he became an adult. The Tribunal finds that the Applicant has spent more than half of his life in Australia, and has made a not insignificant contribution to the Australian community, despite facing considerable hardship, including racism, as he has sought to make a life for himself in this country.
Having regard to paragraph 9.4.1(2)(b) of the Direction, the Tribunal finds that the evidence demonstrates that the Applicant has significant family and social ties to Australia, particularly his mother, step-father, three minor siblings, other relatives and school friends, who are Australian citizens or permanent residents, with whom he wishes to reconnect and strengthen their existing relationship.
The Applicant was not employed prior to his incarceration and the Applicant does not claim that any Australian business interests would be affected by his removal to Sierra Leone. Accordingly, the Tribunal has given the factors in paragraph 9.4.2(3) no weight.
On the basis of the evidence before it, and having regard to the factors in paragraph 9.4, particularly the length of time the Applicant has resided in Australia, his contributions to the community, as well as the strength and nature of the Applicant’s family and social ties in Australia, the Tribunal finds that this consideration weighs strongly in favour of revocation of the Mandatory Visa Cancellation Decision.
CONCLUSION
In summary, the Tribunal finds that Primary Considerations 1 and 2 weigh against revocation of the Mandatory Visa Cancellation Decision. The nature and seriousness of the Applicant’s offences is very serious, particularly the family violence offences against his former partner, and despite the low risk of him committing future criminal offences, the protection of the Australian community is best served by the non-revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 3 weighs strongly in favour of revocation of the Mandatory Visa Cancellation Decision. It is in the best interests of the Applicant’s three minor siblings for him to remain in Australia. Primary Consideration 4 on balance weighs against revocation of the Mandatory Visa Cancellation Decision as the expectations of the Australian community are that Applicant’s serious offences should cause him to forfeit the privilege of remaining in Australia, although the age at which he arrived in Australia, the duration of his residence in Australia, his contributions to the community, are such that the community would have greater tolerance for the Applicant’s offending.
In regard to the relevant Other Considerations, the strength, nature and duration of the Applicant’s ties to Australia weigh strongly in favour of revocation of the Mandatory Visa Cancellation Decision, as do the impediments he will face on return to Sierra Leone.
The Tribunal is satisfied that there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, and that the Reviewable Decision to refuse to revoke the Mandatory Visa Cancellation Decision should be set aside.
DECISION
146.The Reviewable Decision dated 2 March 2021 to refuse to revoke the Mandatory Visa Cancellation Decision is set aside; and
147.In substitution, the cancellation of the Applicant’s Class AH Subclass 101 Child Migrant visa under s 501(3A) of the Migration Act 1958 (Cth) is revoked under s 501CA(4) of the Act.

I certify that the preceding 147 (one hundred and forty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

........................[sgd]...............................................
Associate
Dated: 18 June 2021

Date(s) of hearing: 10 & 11 May 2021

Solicitors for the Applicant: Arlene Pala (SouthWest Migration & Legal Services)

Solicitors for the Respondent: Michael Palfrey (HWL Ebsworth Lawyers)

[2021] AATA 1827

26 May 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Jurisdiction

Remedies

Date(s) of hearing:	10 & 11 May 2021
Solicitors for the Applicant:	Arlene Pala (SouthWest Migration & Legal Services)
Solicitors for the Respondent:	Michael Palfrey (HWL Ebsworth Lawyers)