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

STKN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2121 (4 July 2022)
Division:GENERAL DIVISION
File Number(s): 2022/3162
Re:STKN
APPLICANT

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

DECISION
Tribunal:Dr Stewart Fenwick, Senior Member
Date:4 July 2022
Place:Melbourne

The decision of the Respondent dated 14 April 2022 not to revoke the mandatory cancellation of the Applicant’s Dependent Child (Subclass 445) visa is affirmed.
.....................[sgd]...................................................
Dr Stewart Fenwick, Senior Member
Catchwords
MIGRATION – Mandatory visa cancellation – national of a Country in Africa – failure to pass the character test – whether another reason the mandatory cancellation should be revoked – Ministerial Direction No. 90 applied – very serious offending as a minor – offending against an immediate family member also a minor – decision affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Secondary Materials
Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Dr Stewart Fenwick, Senior Member
4 July 2022
BACKGROUND

STKN applied to the Tribunal on 20 April 2022 for review of a decision of a delegate of the Respondent Minister not to revoke, under s 501CA(4) of the Migration Act 1958 (the Act), the mandatory cancellation of their Dependent Child (Subclass 445) visa under s 501(3A) of the Act.
The nature of the offending that forms the background to this application is of a kind that raises a need for sensitivity to the privacy of both the Applicant and their primary victim (V), who is a younger sibling. Accordingly, in these reasons the identity of both these individuals will be protected, and further relevant information that may tend to identify them will also be altered. Orders were made under s 35 of the Administrative Appeals Tribunal Act 1975 to facilitate this approach.
STKN was born in Africa in Country A in 2000, and later moved as an infant to Country B where they were raised as the child of a paternal aunt. STKN later travelled to Australia in 2014 to live with their father and stepmother. V had to this point lived in Country A with their mother, and also came to live in Australia with the family in 2014.
The offending against V, then aged 13, commenced in early 2016 and as a result of the offending, V became pregnant and gave birth in 2017. At approximately the same time, STKN was charged, bailed, and placed into state care.
STKN committed further offences while on bail. The further offending includes a weapons offence, theft, a home invasion in company, and a robbery. The robbery was committed the day immediately prior to STKN’s sentencing in court in mid-2018 for the offending against V.
STKN initially sought revocation of the mandatory cancellation of their visa in May 2019. Following submissions from STKN, the Minister made a decision personally not to revoke the mandatory cancellation. This decision was remitted for reconsideration by a Judge of the Federal Court of Australia by consent in March 2021. The reconsideration decision was made on 14 April 2022.
STKN was represented before the Tribunal. In addition to lodging a Statement of Facts, Issues and Contentions (SFIC), an Applicant’s Tribunal Book (ATB) was lodged comprising:
(a)UK Government Travel Advice – [Country B];
(b)Smart Traveller – [Country B] Travel Advice & Safety;
(c)Human Rights Watch - [Country B]: Oversight Needed to Enforce Shackling Ban;
(d)Human Rights Watch - [Country B] Breaks the Chains on Mental Health;
(e)‘Family acceptance, economic situation, and faith community: The lived experience of ex-convicts in [Country B]’;
(f)‘Willingness of employers to employ ex-convicts among selected SMEs in the western region of [Country B]’;
(g)Australian Institute of Family Studies, ‘What does the evidence tell us about physical punishment of children?’; and
(h)Character references in respect of the Applicant.
The Applicant’s representative also lodged statements from the two witnesses called to give evidence. STKN’s stepmother (W1), provided an unsigned statement dated 18 May 2022 (Exhibit A1), and a social worker (W2), provided a statement also dated 18 May 2022 (Exhibit A2).
The Respondent lodged a SFIC, G documents, and Supplementary G documents (SG). The Applicant’s representative did not object to the admission of the SG documents. The Respondent’s representative also noted their intention to rely only on certain limited parts of this large bundle (which exceeds 700 pages).
The G documents include a substantial amount of material provided by or on behalf of the Applicant in earlier stages of the decision-making process. This includes a written statement by STKN dated 21 July 2019 (G10) and a submission in support of revocation prepared by Refugee Legal dated 6 August 2019 (G9).
The nature and extent of the measures necessary to protect the privacy of individuals, as noted above, was discussed and agreed with the legal representatives at the commencement of the hearing. The use of an interpreter was not required due to STKN’s fluency in the English language.
LEGISLATION
Section 501 of the Act provides for mandatory visa cancellation on character grounds. The Minister ‘must’ cancel a visa if satisfied that the person has a ‘substantial criminal record’ and is serving a sentence of imprisonment (s 501(3A)). Substantial criminal record is defined to include where a person is sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)). Imprisonment includes ‘any form of punitive detention in a facility or institution’ (s 501(12)).
A mandatory cancellation decision may be revoked where representations are made (s 501CA(3)(b) and (4)(a)) and the Minister, and so a decision maker, is satisfied the person passes the character test, or there is ‘another reason’ the decision should be revoked (s 501CA(4)(b)).
Written directions have been made by the Minister under s 499 of the Act, and decision makers are required to take these into account (s 499(2A)). Accordingly, these reasons will address the principles and factors set out in 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 specific factors in the Direction will be drawn on below to provide the structure and principal factors for consideration in this decision. I note that the Direction includes a statement of principles described as forming the framework within which decision-makers should approach this task (paragraph 5.2). These principles are:
(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 measurable 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 measurable risk of causing physical harm to the Australian community.
ISSUES
The first issue in this matter is whether I am satisfied that STKN fails the character test. The National Criminal History Check lodged in this matter (G3) demonstrates that STKN was sentenced in 2018 to two periods of detention in a Youth Justice Centre, one of 12 months, and another of 14 months (partly concurrent).
As noted above, a term of imprisonment is defined as any form of punitive detention in a facility or institution, therefore no issue arises with respect to STKN’s detention in a youth facility.
Accordingly, I am satisfied that STKN fails the character test. Therefore, it is necessary to consider whether there is another reason that the mandatory cancellation of STKN’s visa should be revoked.
I note that while the factors identified in the Direction must be taken into account, to the extent relevant, they do not limit the scope of inquiry. That said, there does not appear to be material suggesting some other kind of factor is relevant to this issue, and no such submission was made.
PRIMARY CONSIDERATIONS
Protection of the Australian community
This primary consideration states decision-makers should keep in mind that that the Government is committed to protecting the Australian community from harm (paragraph 8.1(1)). It also restates the principle (paragraph 5.2) that entering or remaining in Australia is a privilege extended in the expectation that non-citizens are law abiding, will respect important institutions, and will not cause harm to individuals or the Australian community.
Consideration should also be given to the following specific factors (paragraph 8.1(2)): the nature and seriousness of the non-citizen’s conduct to date; and the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the conduct
This consideration addresses criminal offending ‘or other conduct to date’ (paragraph 8.1.1(1)). The range of conduct to be considered ‘very serious’ is not limited, but the Direction here identifies, specifically, crimes of a violent and/or sexual nature, crimes of a violent nature against women or children, and acts of family violence (paragraph 8.1.1(1)(a)).
Further factors identified for consideration include the sentence imposed, the frequency of offending, and any trend of increasing seriousness.
Sentencing remarks
STKN’s criminal offending is addressed in the sentencing remarks of a Judge of the Children’s Court of Victoria in June 2018 (G4), and a transcript of a proceeding before a Magistrate of the Children’s Court in July 2018 (G18).
The first court event dealt with two separate groups of charges. The first group comprised two charges being ‘incest – sibling’, and a charge of rape (the sexual offending). For this offending, STKN was sentenced to a 14-month aggregate sentence of youth detention. The second group comprised the following charges: home invasion (steal); offensive weapon; theft; theft of a motor vehicle; and commit indictable offence whilst on bail. For this offending, STKN was sentenced to a 12-month aggregate sentence. Eight months of the detention was to be served part concurrently.
I summarise here the key findings of the sentencing judge:
(a)the sexual offending occurred between July 2016 and July 2017, V being 13 and STKN 16 years of age;
(b)the sexual offences are very serious charges and carry significant maximum penalties;
(c)the offending had a profound impact on V, their life was disrupted and they ‘lost much of the innocence of childhood’;
(d)the victim impact statement of the father and stepmother indicate STKN’s offending also had an impact on the wellbeing of family members and on their employment and financial security;
(e)the theft and home invasion offending was ‘extremely serious criminal offending’ by a group of eight to twelve co-offenders against a woman house-sitting alone;
(f)it was committed late at night and the victim was assaulted and threatened while the house was searched, and a car and a range of other valuable items were stolen;
(g)the weapons offence arose from a separate occasion when STKN was found in possession of a knife on New Year’s Eve, and other charges of theft relate to shop stealing;
(h)guilty pleas in both groups of charges indicates that STKN was sorry for what they had done, and spared witnesses from the trauma of giving evidence;
(i)participation in a group conference of victims of the home invasion and subsequent letters to victims demonstrate improved understanding of the offending;
(j)STKN became caught up with offending with peers ‘whose influence was strong due to the circumstances which had led to [their] complete estrangement and isolation from [their] family, first in [Country B] and then in Australia’;
(k)staff at STKN’s residential accommodation spoke highly of them;
(l)STKN’s prospects of rehabilitation were largely dependent upon preparedness to engage in recommended counselling and offence-specific treatment; and
(m)STKN was ordered to be assessed for participation in a specified offender program and, if suitable, participate.
The second court event dealt with charges of robbery and commit indictable offence while on bail, and STKN was sentenced to three months youth detention in aggregate, and concurrent with the existing sentence of detention. The summary of offending read to the sentencing Magistrate describes the theft of AirPods from a person on a train when STKN was in company with several other individuals. The victim was threatened during the theft. The goods were later found to be in STKN’s possession, and a plea was entered to the charge.
In their sentencing, the Magistrate observed that this offending took place the day prior to STKN’s attendance at the Children’s Court for sentencing in respect of the more serious offending.
The sexual offending is not described in the sentencing remarks due to redactions. STKN was taken in evidence to a preliminary brief prepared by Victoria Police and obtained under summons (SG3, pp 82-83). This document relates to three specific instances of sexual penetration that occurred in the family home while the parents were out. In these accounts of the charges V, variously, is said to have kicked at STKN, tried to push STKN off them, tried to convince STKN to stop, being frightened, and telling STKN she did not want to get pregnant. In a final incident, STKN is described as pinning V’s hands behind their back.
STKN stated in evidence that they knew V was a biological sibling and that incest was wrong. When asked about the specific allegations summarised above, STKN also stated that the sexual penetration with V was consensual, and that the descriptions in the preliminary brief were ‘wrong’. When asked to specify which elements of these accounts were wrong, STKN responded that it was ‘not about the facts’, but that the issue of consent was wrong.
STKN stated further that they asked V each time and ‘she said yes’. STKN stated they did not think it was wrong at the time, but had eventually come to accept that what they did ‘was really fucked up’. STKN stated further that after the conviction, V spoke to their parents and told them the truth, that it was consensual.
I will return to the issue of the circumstances of the offending when dealing with the second limb of this consideration.
It is conceded in the Applicant’s SFIC that the offending includes very serious offending.
It was submitted for the Respondent at the hearing that STKN’s offending should be viewed as ‘extremely serious’.
It is a well-established legal principle that a Tribunal, particularly in mandatory cancellation matters, is not able to ‘go behind’ the fact of a criminal conviction. In summary, it is open to a Tribunal undertaking consideration in the context of the Direction to take into account the circumstances in which offending took place, but not to entertain evidence that seeks to challenge essential facts underlying a criminal conviction (see for example HZCP v Minister for Immigration and Border Protection [2018] FCA 1803, at [78]). It is also relevant to note that STKN’s convictions arise from pleas of guilty.
For this reason, I do not rely in any way upon STKN’s denial of the rape offences. I will deal with this issue further below.
STKN’s offending occurred over a relatively short period of time only. While it comprises a range of offending behaviour, I do not consider that it reveals a discernible trend of increasing seriousness. Given that the sexual offending comprised several instances over a relatively lengthy period of time, its repetition is a matter of some concern. I will address the nature of the sexual offending as a form of family violence under that primary consideration.
I consider that the sexual offending qualifies under the Direction as offending of a very serious kind. I note the Respondent’s submission seeks to have this conduct assessed at a higher level of seriousness. While the Direction does not necessarily confine the terms of a finding, I consider ‘very serious’ to be adequate and consistent with the Direction. Participation in a home invasion in which force was used against an individual also qualifies, I consider, as violent crime and so is also very serious offending.
Accordingly, I find that STKN’s offending should be considered to be of a very serious kind.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Direction identifies this consideration as forward-looking, and it states that 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 harm increases’ (paragraph 8.1.2(1)). Further, some conduct and the harm that would be caused is considered so serious that ‘any risk’ of repeat conduct may be unacceptable.
The identified factors requiring particular consideration (paragraph 8.1.2(2)) are (relevantly): the nature of the harm arising from any future criminal or other serious conduct; and, its likelihood, taking into account information and evidence of the risk and evidence of rehabilitation achieved.
Sentencing remarks
In addition to the summary of remarks made by the sentencing judge in June 2018, set out above, I note the judge made further observations and findings relevant to the question of risk:
(a)in a report by psychologist ‘Dr B’, of May 2018, STKN was assessed as ‘a very immature young [person] with a very dysfunctional sense of self-identity and significant behavioural problems’;
(b)Dr B’s assessment was qualified due to STKN’s refusal to participate in psychological testing;
(c)the judge agreed with the assessment that STKN required psychological counselling and specialist offence-specific counselling around healthy and consensual sexual relations and improving victim empathy;
(d)Dr B considered STKN to pose an elevated risk of re-offending without comprehensive and targeted psychological intervention;
(e)‘Mr C’ in his report of January 2018 considered that STKN should receive sexual education, and viewed the offending in the context of experimentation and assessed the risk of reoffending as low;
(f)ultimately, the judge did not agree with the characterisation of the offending as ‘experimental or opportunistic’, and attached greater weight to the report of Dr B; and
(g)the judge was not satisfied beyond reasonable doubt that STKN poses a risk to the sexual safety of members of the community, and accordingly STKN was not registered as a sex offender.
Expert evidence

A report of Mr Jeffrey Cummins, consulting clinical and forensic psychologist, dated 18 January 2018 (G11) was, as noted, one of two reports available at the time of sentencing (‘Mr C’). I was informed at the hearing that the further report (of Dr B) was not in the possession of either party.
In this report Mr Cummins states:
(a)STKN confirmed they had sexual relations with V, that STKN believed V had always agreed, but acknowledged there would have been occasions when STKN encouraged participation;
(b)STKN knew that they should not have sex with a biological sibling;
(c)STKN had never drunk alcohol but confirmed cannabis use weekly over five-to-six months, ceasing in late 2017;
(d)STKN was prepared to attend Mr Cummins for mental health treatment, noting that no diagnosis was made of any condition or trauma;
(e)there is no current validated risk assessment tool for an offender of STKN’s age, but their contact with V would be viewed in the context of experimentation rather than a manifestation of a sexual disorder as such;
(f)there was chronicity [frequent or repeat offending] and escalation, being progressively more serious sexual contact;
(g)‘At interview [STKN] also spontaneously stated [V] had indicated to [them] prior to [STKN] having sexual intercourse with [V] that [V] had been sexually active whilst living in [Country A] – a matter which, I understand, [V] informed the investigating officers about’;
(h)the risk of STKN reoffending against their sibling and the risk of another sexual offence against an underage person is low; and
(i)STKN believed that V had now stated that the allegation that the offending was against their will is because V was frightened of their father.
Applicant’s evidence
STKN gave evidence at the hearing consistent with their written statement (G10). I summarise key elements of STKN’s statements in respect of their background and offending:
(a)STKN was raised in Country B and believed that their aunt was their mother ([2]);
(b)the shock of learning the truth about their family background upset STKN and ‘had a big impact on my self-confidence and my mental state and was a major cause of my behavioural problems and criminal conduct in later years’ ([3]);
(c)STKN did not form a strong bond with their father or mother and first met V when their sibling was aged around ten years old, and they seemed more like a friend ([6]-[7]);
(d)in Australia STKN struggled at school and their behaviour deteriorated including staying away from home over night, and STKN’s father reacted by punishing STKN including beating them with a cane ([13]-[15]);
(e)STKN began to spend time with other people who were getting into trouble and led them to smoke marijuana and eventually to criminal offending, but has held some casual jobs including cleaning dishes and bricklaying ([16]-[17]);
(f)through reflection and help from psychologists, STKN now realises they were unable to cope with their situation and the stress they felt ([18]-[19]);
(g)with respect to offending against V, STKN did not have proper sexual education at the time or understand what mutual consent was, abused their power as an older sibling, now understands the impact of childbirth, and sees no possibility of a future relationship of any kind with V ([20]-[21]);
(h)STKN now considers their violent offending as being an attempt to look tough and show off, and they understand the serious impact on the community and victims ([22]-[23]); and
(i)STKN regrets all of their offending ([27]).
With respect to the sexual offending, it was put to STKN in cross examination that V had been called a liar in a statement provided by a witness. STKN replied that they did not hold that opinion of V, but they had ‘been in the same situation’ and that V ‘had to do what [they] had to do’. STKN stated further that V had spoken to their parents after STKN’s conviction ‘and [they] told them the truth, it was consent’.
STKN explained that they plead guilty to rape because they were being sent to a residential unit, leaving V at home ‘to face dad alone’; the only reason they did it was to protect V from their father’s anger. STKN also stated they were told by their lawyer that V would be cross-examined, and that their father would have to take time off work for the trial.
STKN acknowledged the circumstances of the home invasion in evidence. STKN stated that they were ‘just with the wrong group of friends’ and had been out drinking when the incident took place. STKN stated that they stole a person’s AirPods when going home on a train with a group of friends. STKN accepted that this was the day prior to sentencing for the sexual offending.
STKN accepted in evidence that they had not been diagnosed with psychological issues, that they had a minor history of marijuana use, and that they did previously drink to excess. STKN also accepted that they had previously felt abandoned by their parents, but now had people who support them. STKN added that they have a partner, and although the relationship was not yet ‘official’, this was someone that STKN had reconnected with over the past two years.
STKN stated that they had obtained a number of certifications being a white card, a construction card, and a forklift driving licence. They are also trained in CPR. STKN stated that a few months ago, their former boss in bricklaying said that they could return to work with them upon release.
Witness evidence
W1 gave evidence consistent with their statement (Exhibit A1), which I summarise as follows:
(a)W1 considered STKN to be like their own son, but W1 did not like V, who they considered to be rude ([3]-[5]);
(b)the children’s life in Australia was like a ‘prison’ due to the strict standards of their father, which included punishing them by making them kneel for long periods with their arms raised, and striking them both with a piece of garden hose ([5]);
(c)W1 believed that STKN and V ‘were having a relationship between the two of them’ and that W1 knew V was a liar in stating they had been raped, and that the sexual relationship was in fact consensual because the children did not grow up in the same place ([7]-[8]); and
(d)W1 is seeking a divorce from the children’s father and he has disowned both children ([8]).
W1 stated in evidence that the children were not allowed to have any friends over to the house. W1 also stated that the only time outside that the children were permitted was to go to the park with their father to exercise.
W1 stated that ‘everything that came out of the mouth’ of V was a lie. W1 did not suspect anything was happening between STKN and V until the time V’s pregnancy was discovered. W1 stated that V initially said that a boy at school was responsible for the pregnancy and begged her father to forgive her. When asked to tell the truth, V then ‘made the story up that [STKN] raped her’.
W1 stated about V that ‘it’s their fault they get raped, that’s what they think’. W1 also stated that they believed V at the time but added that rape can only occur if it takes place once, and that this was a relationship because there were several instances of sexual contact. As far as W1 was concerned, STKN would never do anything to hurt V.
When asked to describe the conversation in which this statement was made, W1 gave evidence that she did not remember when it took place. W1 stated further that there was a conversation about V wanting to keep the baby, and that V said something like they ‘had sex because they didn’t have anyone else’. However, W1 then stated that they tried to block it out as things had changed for W1 who stated they had ‘PTSD’ as a result of being raped themselves and becoming pregnant.
In cross-examination, it was put to W1 that their evidence about consensual relations was patently not correct. W1 responded that ‘that is what V was like’ and V was ‘flirtatious’ and ‘liked attention’. W1 agreed that they believed being flirtatious meant that V consented, and that intercourse starts as early as 10-12 years of age these days. W1 stated that a 13-year-old was capable of consent ‘if they are mature’.
W2 gave evidence consistent with their written statement (Exhibit A2) which I summarise as follows:
(a)W2 met STKN when they were placed in out of home care in mid-2017 and STKN was respectful, well mannered, received an award for persevering with education, and also attended church regularly ([4]-[7]);
(a)given STKN’s lack of family support, W2 was prepared to play a direct role in their life following incarceration, expecting STKN to live with W2, and later assisting STKN in immigration detention ([8]-[9]);
(b)W2 and their family have now prepared together to offer STKN support should the Applicant be released into the community and remains ready to accommodate STKN ([10]-[11]);
(c)STKN will receive support from W2 and their professional network to access mental health support and in returning to employment, and that a former employer in bricklaying stands ready to re-engage STKN, and a soccer coaching role is open to them ([12]-[14]);
(d)W2 was contacted by W1 when STKN moved to immigration detention to inform W2 that ‘new information had come to light within the family’ being that V ‘had disclosed that they had been in a consensual relationship’ when V fell pregnant, and STKN explained that the guilty plea was an attempt to protect V from their father ([17]); and
(e)STKN expressed relief that they would no longer be seen as a rapist by those close to them, and W2 also notes that STKN’s participation in a conference program with the victim of the home invasion showed great remorse ([19] and [22]).
In evidence, W2 stated that upon being informed by W1 about the truth of STKN’s sexual offending W2 went to the detectives involved in the prosecution but was informed that nothing could be done. This was because STKN had been convicted and time was served.
In cross-examination, W2 was asked to provide further details of the information provided by W1. W2 responded that W1 and STKN’s father implied there had been inconsistencies in V’s story. W2 also stated that they had been told things including: ‘we know the truth’; ‘the dates don’t add up’; and ‘it was consensual’.
W2 agreed that they had essentially taken the information from W1 at face value. W2 also stated, when asked about the definition of rape, that as STKN was 15 at the time of the offending this may have some bearing on the offence.
W2 supported this opinion by stating that they had helped STKN celebrate their 16^th birthday in out of home care. When later asked by me to confirm the dates of care, W2 acknowledged that their recollection of this event may not in fact be accurate.
W2 stated that she understood STKN to be remorseful about the incest, but that W2 believed it was consensual. W2 stated that they always queried whether the offending was true.
Other evidence
Summons material includes statements made to Police by V and W1. In their statement (SG3, pp 122-171) I note that V makes several references to having been raped in Africa. V states that this was about three years earlier, and that they had on one occasion informed STKN about this.
In their statement to Police (SG3, pp 97-102), W1 states that they knew V lied to them about the father of the child being a boy from school. W1 also states that both they and their husband ‘both seemed to already know that it was [STKN] before [V] said anything’. W1 also states that STKN ran away from home when the pregnancy was discovered.
A range of references are included in the material before me (G12-16) arising from STKN’s time in youth detention. They attest, variously, to participation in drug and alcohol treatment, positive engagement with learning programs and attainment of trade skill white cards.
The Summary Report drafted by the Youth Justice Centre (G17) discloses a history of poor adaptation to youth detention, including numerous reports and instances of assault. STKN participated in an Adolescent Violence Intervention Program.
Material before me also includes reports from STKN’s time in immigration detention, and some of this material was put to STKN in cross-examination. I do not consider the content of this material to clearly reveal any particular behavioural issues of STKN in immigration detention.
A number of other references are included in the material before me (ATB 8). These all arise from STKN’s time in out of home care, prior to detention. They attest to STKN’s participation in sport and church groups, and make offers of support to STKN, should they return to the community.
Submissions
Submissions for STKN at the hearing stressed the dysfunctional aspects of their early life and, more particularly, the strict disciplinary regime of STKN’s father. It was contended that an unusual relationship grew between STKN and V and, moreover, that there was no evidence from V that their relationship lacked consent, thus corroborating the evidence of STKN and the witnesses at the hearing. It was therefore contended in mitigation of the offending that, notwithstanding the incest, there had been no rape.
In the Applicant SFIC it is acknowledged that any reoffending by STKN would be serious and very traumatic for victims. It is further contended that substantial weight should be given to the report of Mr Cummins and the finding of a low risk of reoffending. Furthermore, the offending was ‘contextual and impelled by difficult personal circumstances’.
The submissions note STKN’s participation in various programs, their relative youth at the time of the offending and, ‘critically’, the support offered by W2 should STKN return to the community. Finally, it is contended that very limited weight against revocation should be afforded this primary consideration.
The submissions for the Respondent at the hearing addressed the evidence regarding the issue of consent. It was contended that W1’s evidence was a poor basis for a finding that a 13-year-old victim lied throughout the criminal legal process. It was also contended that witness accounts of the circumstances in which they learned about this were vague and therefore unreliable.
It was contended that STKN’s adherence to the existence of consent at the time of the sexual offending fundamentally undermined any expression of remorse for their criminal conduct. The Applicant’s contentions that rape did not occur could not, it was submitted, be accepted given the fact of conviction. Moreover, the supporting evidence demonstrated that STKN was not being assisted by those close to them to confront their offending history.
The Respondent’s representative submitted, further, that STKN’s other serious offending occurred while on bail, indicating a lack of respect for the law and law enforcement. However, it was acknowledged that certain factors lay behind STKN’s offending, including emotional distress, the domestic environment, and some limited drug use. It was contended that as emotional abandonment had been a factor previously, STKN’s estrangement from family may lead to future concerns of a similar kind.
It was contended, in conclusion, that any risk of reoffending was unacceptable, particularly sexual offending, for which a heightened risk remained.
Summary finding
It is unfortunate that the second expert report relied on by the sentencing judge was not available for consideration in this matter. That judge made clear their preference of this other report and it was, overall, less supportive. I consider that on a fair reading, however, the reference in Mr Cummins’s report to experimentation was made in the context of assessment in respect of a particular sexual pathology.
Nonetheless, Mr Cummins does not appear to have taken into account V’s likely age at the time of any earlier exposure to sexual activity, nor addressed in an independent way, the issue of consent. Nor does this report deal with STKN’s other violent offending.
There is no evidence before me of STKN being assessed or participating in the specific program required of the sentencing judge, but I accept they did participate in a relevant program related to their offending. There is limited evidence overall of any sustained engagement with professional assistance. No doubt this may well be a result of the limited time in youth detention, and the transfer to immigration detention.
I do, however, take account of the positive impression that STKN appears to have consistently made to other professionals with whom they have been in contact.
There is some force in the argument raised by the Respondent that STKN themself, and their key social supports, all maintain the existence of consent at the time of the sexual offending. This important exculpatory narrative was first documented in Mr Cummins’ report. This narrative was presumably not acknowledged by the sentencing judge due to the fact that STKN plead guilty to the charges.
There is also some force in the Respondent’s contentions that the evidence about V’s change of heart at some unspecified time is weak. This conclusion arises if only from the observation, above, that the narrative around consent existed at the time of sentencing for the sexual offending. I also note that despite their evidence, W1’s apparently contrary views in their victim impact statement as to the offending formed part of the consideration of the sentencing judge. Their view of the offending at the time it was exposed also appears in their police statement.
Equally, there are particular contextual factors around the sexual offending and, to a lesser extent, the other serious offending. These include STKN’s unusual personal background, and difficulty adjusting to life in Australia in a strict household.
The evidence, overall, suggests that STKN is unlikely to have any kind of relationship in the future with V. On this basis, the likelihood of their specific sexual offending (whether rape or incest) being repeated would appear to be very limited indeed. Nonetheless, this consideration also needs to be balanced against the exculpatory narrative in which STKN denies the use of force; this speaks to a lack of insight.
I also take account of the evidence that STKN has available immediate practical and social support from a person (W2) who is familiar with their history, including accommodation. The Respondent contends, essentially, that STKN being around persons who support the exculpatory narrative around consent is a negative factor. On balance, I consider this is a matter that, principally, should be interpreted as positive and protective against the risk of reoffending.
Taking into account in particular the two expert opinions as to the risk of offending, and the mixed evidence as to rehabilitation, I find that there is at least some limited risk of reoffending. I consider this to include a risk of reoffending in a similar way, that is, forms of sexual or other violent offending, which carry a serious risk of harm to individuals or the Australian community.
Conclusion
I have found that STKN’s offending should be viewed as very serious. I have also found that there is some risk of STKN reoffending.
It was contended for the Applicant that this primary consideration should be ascribed very limited weight against revocation. The Respondent contended that this primary consideration weighs heavily against revocation.
As a matter of law, as indicated above, I am unable to give force to the evidence or contentions regarding consent in respect of the sexual offending. I have found that it is to be viewed as very serious.
I accept that the particular type of offending is unique, and circumstances for a repeat of precisely the same offending unlikely. Equally, the nature of STKN’s domestic circumstances that were factors at the time of their offending overall may also not be repeated.

In this respect, I note that there is authority for the view that present circumstances may bear on the risk of whether past offending may be repeated (Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132, at [78]).
However, the seriousness of the sexual offending is itself an important consideration in the context of the Principles in the Direction. The denial of critical features of that offending is a matter of significant concern as it essentially amounts to a negation of the conduct.
I therefore consider, on balance, that this consideration weighs heavily against revocation.
Family violence committed by the non-citizen
This consideration states that the Government has ‘serious concerns’ about conferring the privilege of remaining in Australia upon non-citizens who engage in family violence (paragraph 8.2(1)). The level of concern is said to be proportionate to the offending. This consideration is relevant to convictions that involve family violence, howsoever described (paragraph 8.2(2)).
Factors that must be considered (paragraph 8.2(3)) are (relevantly): the frequency of the conduct; its cumulative effect; and, rehabilitation achieved at the time a decision is made. Rehabilitation embraces (paragraph 8.2(3)(c)): the extent to which responsibility is accepted for the offending; the level of understanding of its impact by the perpetrator; and, efforts made by them to address contributing factors.
Family violence is described in broad terms in the Direction (paragraph 4(1)): ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family … or causes the family member to be fearful’. It includes sexual offences.
It is accepted in the Applicant SFIC that STKN’s offending constituted family violence. It is contended that the chances of repeat offending are low or non-existent and, accordingly, minimal weight should be afforded this consideration.
The Respondent in its SFIC contends that STKN’s sexual offending constitutes the most serious form of family violence. It is contended that the duration and impact of the offending on V means that this consideration should weigh heavily against revocation.
While I note the Applicant’s submissions in relation to risk of further offending, this does not form part of this consideration, and has been addressed above.
This consideration addresses, relevantly, a conviction for family violence. I consider that STKN’s sexual offending comes within the scope of the definition provided. I also consider that the Respondent’s contention as to the seriousness of the particular charges upon which STKN was duly convicted is correct.
The evidence, noted above, demonstrates that STKN denies that part of the offending that makes the conduct qualify as violence on the basis of consent. On this basis, STKN does not take responsibility for the act of, and conviction for, rape. Accordingly, in the terms provided in this consideration, STKN’s rehabilitation is demonstrably compromised by this attitude.
I accept, however, that STKN has given evidence acknowledging the impact of the conduct upon V, and has engaged to some limited extent in forms of treatment that address the conditions of their offending.
On balance, I find that this consideration weighs heavily against revocation.
Best interests of minor children in Australia affected by the decision
This primary consideration requires a determination as to whether non-revocation of a non-citizen’s visa is, or is not, in the best interests of a minor child affected by the decision (paragraph 8.3(1) and (2)). A number of specified factors must be considered (paragraph 8.3(4)).
There is only one relevant minor child whose interests arise for consideration, being the infant born as a result of STKN’s offending. W1 stated in evidence that child was placed in the care of a friend of STKN’s father interstate when born.
The Applicant submits in their SFIC that there does not, at present, appear to be any way for STKN to be involved in the child’s life. It is also submitted that revocation would neither have a positive nor negative impact due to the absence of a role in the child’s life to date. It is submitted that neutral weight should be attributed to this consideration.
For the Respondent it was submitted at the hearing that a future relationship between STKN and their child was not in the child’s interests and that this consideration weighs neutrally.
The evidence overall indicates that there is no existing relationship between STKN and this child. The estrangement among the family suggests that it is highly unlikely that there would be any contact in the foreseeable future.
Given the circumstances of the child’s birth, any future contact between STKN and the child, is likely to be entirely contingent upon formal access rights established under either or both local and federal law. The circumstances also mean that it may well be that any future contact could have a negative impact upon the child.
Due to the particular circumstances arising in respect of this minor child, and the current, and likely future, absence of a direct parental relationship with STKN, I find that this consideration weighs neutrally.
Expectations of the Australian community
This primary consideration restates, in a normative way, principles stated in paragraph 5.2 of the Direction. That is, the Australian community expects non-citizens to obey Australian laws while in Australia, and the community expects the Government not to allow a non-citizen to enter or remain in Australia who has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk they may do so (paragraph 8.4(1)).
Further, the nature of character concerns or offences alone may render non-revocation appropriate, and the consideration nominates in particular (relevantly): acts of family violence, and commission of serious crimes against women or children, including crimes of a violent or sexual nature (paragraph 8.4(2)).
In their SFIC, the Applicant acknowledges that this consideration should be interpreted to weigh against revocation, but it should be attributed low weight. It is contended that STKN arrived in Australia at a young age and therefore greater tolerance may be afforded to their criminal conduct by the Australian community.
In his SFIC, the Respondent contends that this expectation is normative, and that given the seriousness of STKN’s offending, the community would expect that they no longer continue to hold a visa. It is contended this consideration should weigh heavily against revocation.
I accept that this consideration is expressed normatively, and that accordingly, this consideration weighs against revocation. In respect of the weight to afford this consideration, I find that the nature of STKN’s sexual offending triggers the serious character concerns specifically identified in the Direction.
For this reason, I find that this consideration weighs heavily against revocation.
OTHER CONSIDERATIONS
International non-refoulement obligations
This consideration concerns an obligation not to forcibly return a person to a place where they will be at risk of a specific type of harm (paragraph 9.1(1)). Australia’s non-refoulement obligations arise under several international conventions, however, the Direction points to the definition of ‘protection obligations’ contained in the Act as reflecting Australia’s interpretation of these obligations.
Decision-makers are to weigh any such obligations against the seriousness of the criminal offending, while being mindful that under the Act non-citizens are liable to detention and removal from Australia as soon as reasonably practicable (paragraph 9.1(2)). If such an obligation is found, this does not preclude revocation of a visa and other options exist under the Act, or Ministerial powers, and the non-citizen may (as in STKN’s case) seek to apply for a protection visa, during which time they would remain in Australia (paragraph 9.1(3)). The Direction goes on to address further factors around the protection visa process (paragraph 9.1(5)-(7)).
The issue of international non-refoulment obligations in the context of visa revocation was recently considered in a decision of the High Court, Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 (M1). The Court’s reasoning can be relevantly summarised as follows (M1 at [9]):
(a)a decision-maker is required to ‘read, identify, understand, and evaluate’ submissions made in respect of this obligation;
(b)the obligations unenacted in Australia (that is, found solely in international law) are not a mandatory relevant consideration; and
(c)to the extent the obligations are given effect in the Act, one available outcome is to defer assessment as to whether an Applicant is owed these obligations, on the basis they may apply for a protection visa.
Evidence
In their written statement (G10), STKN states:
(a)‘I cannot return to my Country. If I am forced to return, I will have no one to support me. I have not had contact with my family in [Country B] for over two years’ ([29]);
(b)Country B is a ‘very violent place’ and without the protection of family and community, STKN could be targeted and killed upon return, if they were recognised or someone found out about their offending against V they would take their life ([30]);
(c)STKN’s father has been asking about their deportation and ‘This worries me because I think my father may pass this information back to my family in [Country B]. I think they might be planning to harm me on my return’ ([30]);
(d)they have nowhere to live in Country B and no support, and they cannot relocate to another area ([31]); and
(e)people who return from overseas are targeted as it is expected they have money, and STKN may be threatened or killed ([32]).
At the hearing STKN gave evidence consistent with these statements. STKN also stated they had contacted their Aunt’s children who informed STKN that their father had ‘told them about my case’. STKN added that they had seen their father at court giving them an intimidating stare.
STKN stated they had called friends and relatives in Country B over a year ago. STKN stated they do know family members other than their Aunt’s family, but has had no contact with them since coming to Australia. In re-examination STKN stated they last had contact with their Aunt around eight to nine months ago.
STKN stated they had tried to speak to their mother in Country A about nine months ago, but she did not wish to speak with them. STKN stated they could not live with their mother as they do not know her personally. In re-examination STKN stated that they did speak with and apologise to their mother, however she had spent most of the time on the phone crying.
STKN reiterated that they were unable to relocate within the capital of Country B. STKN stated when young they had seen people burnt in the street, and that ‘people get burnt for stealing bread’ in Country B.
W1 stated in evidence that it was ‘100% likely’ that STKN would face harm if returned to Country B. This was because a relative of STKN had said that STKN’s father said that STKN would be ‘dealt with’ and has said this a few times.
W2 was asked in cross-examination about the attitude of STKN’s father. W2 stated that they observed the father yell out, openly, in court that he wanted STKN ‘sent home to be dealt with in [Country B]’. W2 also spoke to the father when attempting to mount a challenge to the conviction and was told that he ‘wanted nothing more to do with’ STKN.
Submissions
This consideration is addressed in the representations prepared by Refugee Legal (G9). It is submitted there that non-refoulement obligations are owed on the basis of STKN’s membership of several social groups, including:
(a)returnees from a Western Country;
(b)returnees who have not lived in Country B for many years;
(c)returnees who have no family support in Country B;
(d)former criminals without family support in Country B; and
(e)people in Country B suffering from mental health issues.
It is further submitted that there are common issues arising from relevant country information, being: serious discrimination and societal isolation threaten STKN’s capacity to subsist; and, that STKN has fears they may not have access to mental health services. It is contended that STKN faces the prospect of indefinite detention given the strength of the non-refoulement grounds.
The Applicant SFIC broadly reflects these submissions, albeit acknowledging the recent decision in M1. This document highlights Country information including:
(a)that foreign nationals have been attacked and robbed;
(b)Westerners, especially women, are increasingly targeted;
(c)former criminals are stigmatised and shunned by family members and have significant difficulty in obtaining employment; and
(d)the stigma attached to mental health issues.
The Applicant SFIC highlights that STKN may be perceived as a Westerner due to time spent in Australia, is unlikely to obtain employment, fears retribution for their offending, and that there is a strong possibility STKN will develop mental health problems.
It was submitted at the hearing that the biggest risk to STKN arises from their father, and there is nothing to stop him travelling to Country B at any time. The evidence also indicates that family members are reluctant to engage with STKN. It was submitted, further, that the Applicant should benefit from a determination of this issue, rather than await the outcome of a protection visa application.
In conclusion, it is contended in the Applicant SFIC that this consideration should carry significant and determinative weight in favour of revocation.
The Respondent relied upon submissions made in their SFIC. These note that the original decision maker considered there is at least a possibility that STKN’s claims may engage non-refoulment obligations. They also highlight that, in light of the decision in M1, a decision-maker may defer consideration where a protection visa application may be made by an Applicant.
At the hearing, the Respondent’s representative indicated that the evidence of W2 may breach the ‘two day’ rule, in that the specific example of the conduct of STKN’s father was not referred to in their witness statement. I accept that s 500(6H) of the Act requires oral evidence to be supported by a written statement provided to the Minister two business days prior to a hearing. However, I note that STKN’s written statement alludes to a threat from their father, and this might be understood as alerting the Respondent to this line of evidence.
Consideration and finding
I understand from the clarification provided by the majority decision in M1 that clearly articulated claims made must be evaluated, but that – equally – a decision-maker is not obliged to make actual findings of fact in respect of all material claims (at [24]). I also understand that a decision-maker (including the Tribunal) may defer assessment in circumstances where an application for a protection visa is open to the Applicant.
Accordingly, I take account of the fact that STKN is entitled to make an application for a protection visa, and that their claims would be considered in greater detail in this process; the Direction observes that the protection visa process is specifically designed for the consideration of non-refoulement claims (paragraph 9.1(6)). I do not consider that I am required to speculate as to other potential outcomes, including the prospect of indefinite detention.
However, I also note the Direction permits an assumption, in an appropriate case, in a non-citizen’s favour, that a claimed harm will occur. As noted above, the original decision maker accepted that there was a possibility of a risk of real harm arising given STKN’s status as a former criminal, and in the context of the specific form of offending against a family member (G2, pp 29-30).
I noted above that the Direction, here, directs attention to the manner in which the obligation in question has been captured in the Act. In this respect, protection obligations arise in the context of s 36 of the Act, with respect to a person’s status as a refugee, or with respect to complementary protection obligations. More particularly, I note that the Act specifies certain thresholds of harm being a real risk of ‘serious harm’ in the context of a well-founded fear of persecution (in the former case), and real risk of ‘significant harm’ (in the latter case).
I consider the basis for STKN’s claim to fear harm from family or the wider community in Country B is somewhat vague. More importantly, it is also quite speculative. The evidence of W2, in particular the threat made to STKN by their father in court, is the most tangible indication of this risk. The manner in which such a threat might play out in reality is, however, unclear. Moreover, I accept STKN’s evidence that they have limited likelihood of receiving support from family, in which case the chance of the threat materialising is probably further reduced. Equally, this may then render STKN vulnerable by way of having limited family support, as submitted.
However, there is some material before me that does support the proposition that former criminals may be stigmatised by their family and that family acceptance is a critical factor in their reintegration into society (ATB 5, p 38). The source material in this respect appears to be based on persons who have offended in Country B, but the observation about the relationship between family acceptance and wider social integration may, in the context of STKN’s situation, be pertinent.
Given the amount of time STKN spent in Country B prior to living in Australia, it does not appear to me on the evidence that there is a particular risk of STKN being considered a ‘foreigner’. Given the sparse evidence concerning any specific mental health issue now, or one arising in the future, I consider this to be an insubstantial ground upon which to claim a fear of harm. However, these issues are relevant to the following other consideration, as are STKN’s claims about the risk of more generalised forms of violence.
Based on the evidence that I do have, I am not able to discount the possibility that there may be a real risk of a danger to STKN’s life as a former criminal, were they to return to Country B, given the possibility of having limited family support.
On balance, I find that this other consideration weighs in favour of revocation.
Extent of impediments if removed
Decision-makers must consider the extent of impediments a non-citizen may face if removed from Australia 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: their age and health; language or cultural barriers; and any social, medical and/or economic support available to them (paragraph 9.2).
Much of the evidence relating to the previous consideration can be understood as applicable to the extent of impediments faced by STKN if returned. The submissions of both parties also acknowledge the relevance of material supporting STKN’s claims as to their prospects should they be returned to Country B.
It is acknowledged in the Applicant SFIC that STKN is unlikely to face any language or cultural barriers in Country B. While acknowledging there is no diagnosis of mental health problems, it is contended that STKN may be at risk of deterioration in their mental health condition. It is contended STKN has no family or social supports, is likely to face poverty and hardship, and struggle to obtain employment (referring to the published reports lodged in this matter).
Ultimately, it is submitted that the impediments facing STKN will be extensive, very significant and more than merely short term; and that accordingly, this consideration should weigh very heavily in favour of revocation.

For the Respondent it was submitted at the hearing that STKN’s fears for their safety were not substantive, and they would in any event be in a position to live somewhere in the capital of Country B. STKN is healthy, has some work experience and has access to the same supports as other citizens. It was contended that there may be some minor impediment arising should STKN choose not to live with their family.
I do not consider that STKN will face any cultural or language barrier if returned to Country B. I consider that there is no evidence before me that STKN’s age or health, which I understand to be good, lead me to appreciate that they are anything other than positive factors for STKN re-establishing themself.
I accept that the evidence indicates that informal, or family-based, social or economic support may be minimal or non-existent. That is, I accept that while STKN has had some limited contact with family and former associates in Country B, they do not at present see family as embracing them due to their offending history.
I consider it reasonable to assume that difficulty in obtaining employment on the basis of STKN being an ex-convict would only arise were an employer to require a declaration to this effect, or were STKN’s offending somehow to become known to them. Material lodged (ATB 5 and 6) does not clearly disclose whether or how these conditions would arise. Perhaps more relevantly, STKN clearly possesses limited formal education, limited vocational training, and quite limited work experience.
There is a very distinct difference in the approach taken by the parties in submissions on this consideration. I am unable to accept the Applicant’s contention that STKN would face significant challenges if returned to Country B. However, the evidence does demonstrate that STKN is likely to face some immediate difficulty arising from the disjunction with family. I also consider the evidence to indicate that STKN may well experience difficulty obtaining work.
Accordingly, I find that this other consideration weighs slightly in favour of revocation.
Impact on victims
This other consideration involves consideration of the impact of a visa cancellation decision or the revocation of such a decision upon members of the Australian community, including victims of the non-citizen’s criminal behaviour, and family members of the victim or victims, where information in this regard is available.
There is no evidence before me as to the awareness or otherwise of V about either the visa cancellation decision, the revocation request, or this application. The written and oral evidence given by W1 also does not directly address this question.
Accordingly, I consider that this other consideration weighs neutrally.
Links to the Australian community
This other consideration is comprised of two parts, described as reflecting the principles at paragraph 5.2.
The strength, nature and duration of ties to Australia
Consideration must be given to any impact of a decision as to revocation on the non-citizen’s immediate family in Australia, where they are citizens or have the right to permanently reside or remain in Australia (paragraph 9.4.1(1)).
As noted above, the evidence of W1 did not go to the impact of a non-revocation decision upon them. I note that W1 gave evidence by telephone from an address interstate, however no evidence was provided to give context as to their living arrangements or life circumstances in so far as they may implicate or involve STKN.
As already noted, STKN’s infant child resides interstate in the care of a friend of STKN’s father. There is no evidence in this matter as to the impact of a non-revocation decision upon them.
Equally, there is no evidence as to the impact of a non-revocation decision upon STKN’s father, or upon V. Given the intent of this other consideration, I consider it reasonable to take into account the evidence as a whole which indicates that there has been a complete severance in the relationships in STKN’s immediate family unit.
Consideration must also be given to the strength, nature and duration of the non-citizen’s ties to the Australian community (paragraph 9.4.1(2)). This includes consideration of whether the non-citizen arrived as a young child, noting that less weight should be given where offending began soon after arrival in Australia, and more weight given to time spent contributing positively to the Australian community.
In the Applicant SFIC it is submitted that while STKN is estranged from immediate family, they maintain the support of W1. It is acknowledged that STKN has very limited social links. It is contended STKN has made some contribution to the community through employment. The strong relationship with W2 is also otherwise emphasised.
For the Respondent it was submitted at the hearing that STKN had spent eight years in Australia, punctuated by their serious offending. STKN’s non-family referees are restricted to individuals who have assisted STKN rather than coming from personal connections. The Respondent SFIC contends that the support offered by W1 and W2 should be viewed with ‘scepticism’. It was contended this consideration should weigh neutrally or slightly in favour of revocation.
STKN did not arrive in Australia as a young child, but as a teenager who had grown up in Country B. Their offending began two years after arrival. Approximately half of STKN’s time in Australia has been spent in different forms of detention.
STKN’s evidence of brief employment and participation in schooling and sport represent a small period making a positive contribution, in the context of their time in Australia overall.
I cannot entirely discount the character referees themselves on the basis that their engagement with STKN came about through provision of social services in OHC. However, I consider that it is appropriate to note that there is no material before me from any of the organisations with which STKN is said to have engaged positively.
I also note that from the evidence overall, STKN’s more positive engagement with the Australian community arose during their time in OHC, when supported by the character referees. It was also interspersed with their offending behaviour.
I note STKN’s limited and general evidence about the existence of a personal relationship. I afford this some, very limited, weight.
I find that, overall, some limited weight in favour of revocation can be given to this part of this other consideration.
Impact on Australian business interests
There is no evidence before me to indicate that this other consideration is engaged and accordingly it weighs neutrally.
Summary finding
I find that this other consideration weighs slightly in favour of revocation.
CONCLUSION
The Direction provides that primary considerations should generally be given greater weight than other considerations (paragraph 7(2)), and that one or more primary considerations may outweigh other primary considerations (paragraph 7(3)).
Of the primary considerations, I have found that Protection of the Australian community, Family violence committed by the non-citizen, and Expectations of the Australian community, weigh heavily against revocation. I have found that the Best interests of minor children in Australia weights neutrally.
Of the other considerations, I have found that International non-refoulment obligations weighs in favour of revocation, and that Extent of impediments if removed, and Links to the Australian community weigh slightly in favour of revocation. I found that Impact on victims weighs neutrally.
I note that the stated principles require consideration of cases individually (paragraph 5.2(5)). It may be that the nature of the conduct alone may be so serious that strong countervailing considerations may be insufficient to justify revocation, particularly in cases involving family violence.
I consider that in this matter there are no strong countervailing considerations. I have taken into account various factors relating to STKN’s background in the course of making specific findings. Those findings overall, specifically in respect of primary considerations, weigh strongly against revocation. There is no evidence or other consideration arising in this matter that supports displacing the generally greater weight to be afforded primary considerations.
DECISION
For the reasons given above the Tribunal affirms the decision dated 14 April 2022 not to revoke the mandatory cancellation of the Applicant’s Dependent Child (Subclass 445) visa.

I certify that the preceding 177 (one hundred and seventy-seven) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member

..........................[SGD]............................................
Associate
Dated: 4 July 2022

Date of hearing: 8 June 2022

Counsel for the Applicant: Maker Mayek

Solicitors for the Applicant:

Advocate for the Respondent:

Mayek Legal

Christopher Orchard

Solicitors for the Respondent: Spark Helmore Lawyers

[2022] AATA 2121

4 July 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies

Date of hearing:	8 June 2022
Counsel for the Applicant:	Maker Mayek
Solicitors for the Applicant: Advocate for the Respondent:	Mayek Legal Christopher Orchard
Solicitors for the Respondent:	Spark Helmore Lawyers