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

Thompson and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1880 (29 June 2023)
Division: GENERAL DIVISION
File Number: 2023/2511
Re:Daniel Thompson
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:29 June 2023
Place:Sydney

The reviewable decision is set aside, and the decision is made that there is another reason to revoke the mandatory cancellation of the Applicant’s Partner (Permanent) (Subclass 801) visa.
................................[sgd]........................................
Mrs J C Kelly, Senior Member
CATCHWORDS
MIGRATION – mandatory cancellation of visa under s 501CA(4) because applicant did not pass the character test – violent sexual offences – whether there is another reason why the cancellation decision should be revoked – Ministerial direction no.99 – protection of the Australian community – strength, nature, duration of ties to Australia – best interests of minor children in Australia – expectations of the Australian community – legal consequences of the decision – extent of impediments if removed – daughter and father in Liberia – reviewable decision set aside
LEGISLATION
Migration Act 1958 (Cth)
SECONDARY MATERIALS
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
29 June 2023
Introduction

The Applicant, Mr Thompson, was born in Liberia in June 1978 and is now 45 years old. He arrived in Australia in November 2008 as the holder of a TO-300 visa. His Partner (Permanent) (Subclass 801) visa was mandatorily cancelled pursuant to section 501(3A) of the Migration Act 1958 (Cth) (the Act) on 2 July 2020 because he failed the character test because he had a substantial criminal record. That is, he had been sentenced to an aggregate sentence of 12 months or more imprisonment (subsections 501(6)(a) and (7)(c) of the Act) and was serving a sentence of imprisonment on a full-time basis in a custodial institution.
The Applicant sought revocation of the mandatory cancellation decision pursuant to section 501CA(4)(b)(ii) of the Act. On 12 April 2023 the delegate of the Respondent decided not to exercise the discretion to revoke the mandatory cancellation decision. I am reviewing that decision.
Issues
The issues are:
(a)Whether the Applicant passes the character test which is defined in section 501(6) of the Act; and
(b)If he does not, whether there is another reason why the cancellation decision should be revoked under section 501(CA)(4) of the Act, having regard to the considerations prescribed by ‘Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (Direction 99).
That the Applicant does not pass the character test is not in dispute. He was convicted in the Brisbane District Court on 21 May 2020 of eight counts of Rape and one count of Common Assault and sentenced to a term of imprisonment of seven years. I proceed to consider whether there is another reason why the visa cancellation decision should be revoked.
Direction 99
Paragraph 5.2 of Direction 99 sets out six principles (the Principles) that provide the framework within which decision-makers should approach the task of deciding whether to revoke the mandatory cancellation of a visa under section 501CA(4) of the Act. Informed by the Principles, the decision-maker must take into account the primary and other considerations in Part 2 of Direction 99 in deciding whether to revoke the mandatory cancellation of a visa under section 501CA(4) of the Act.
The primary considerations are:
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct the applicant has engaged in constituted family violence;
(c)the strength, nature and duration of ties to Australia;
(d)the best interests of minor children in Australia; and
(e)the expectations of the Australian community.
The Applicant’s conduct does not constitute family violence. The second primary consideration is therefore not relevant.
The decision-maker must also take into account the “other considerations” set out in Direction 99 where they are relevant. Those considerations include, but are not limited to:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
The two latter ‘other considerations’ are not raised by the evidence in this case and will not be considered.
Primary considerations
Protection of the Australian community
There are two considerations in relation to the protection of the Australian community:
(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.
The nature and seriousness of the non-citizen’s conduct to date
The Applicant pleaded guilty to one count of Common Assault and eight counts of Rape on 17 February 2020 in the District Court of Queensland in Brisbane. The offences were committed against a sex worker during one hour on 24 September 2018. The Applicant was on bail from 25 September 2018 until 17 February 2020 when he was placed on remand in custody after entering pleas of guilty.
On 21 May 2020 the Applicant was convicted and sentenced to seven years imprisonment. His pre-sentence custody for 94 days between 17 February 2020 and 20 May 2020 was held to be imprisonment already served. He was eligible for parole on 16 June 2022. He was not released on parole until 12 December 2022 when he was taken into immigration detention.
The sentencing judge’s remarks included the following:
·The guilty pleas were late.
·The Applicant paid for a hand job, oral sex, vaginal sex, and a massage.
·The offending occurred over a relatively short period in the context of the Applicant receiving services that he had paid for.
·Count 1 – while having vaginal sex to which the complainant had consented, she was lying flat on the bed on her stomach when the Applicant reached around and put one hand around her neck, tightened his grip so that she could not breathe, while he continued to forcefully have sex with her.
·Count 2 – after she asked him to stop having sex with her, he put both hands on her shoulders and pinned her down so that she could not move and continued having vaginal sex with her.
·Count 3 – he penetrated her anus with one of his fingers.
·Count 4 – after the complainant had been crying and trying to get free and telling him to stop as it was hurting her, he told her to shhh as she had to give him a nice service, and again penetrated her vagina with his penis.
·Count 5 – after again telling the Applicant to stop, while she was crying and trying to get away from him, he again penetrated her vagina with his penis.
·Count 6 – he spat on her vagina and inserted his fingers and whole hand, causing her significant pain.
·Count 7 – involved the Applicant inserting his finger into her anus.
·Count 8 – involved the Applicant inserting his penis into her vagina.
·Count 9 – involved the complaint again trying to get away from the Applicant and asking him to stop, when he pulled her back on to him and kept having sex with her by penetrating her vagina with his penis.
·After the Applicant finished treating the complainant as described for his own sexual gratification, he said to her that he even liked the part when she had said ‘no’ and had been crying.
·The Applicant was less than frank with police, denying that he had grabbed the complainant’s neck, inserting his finger or hand into her vagina, and having penetrated her anus.
·In her victim impact statement, the Complainant talked of the life that she had once had and that no longer exists. In the early days, she was tearful and had very disturbed sleep for about a year. She quit university and struggled to be around anyone. She could not go to shopping centres. She engaged in self-harm. She remains afraid and fearful of what people are capable of. She sometimes still finds that fear to be debilitating. She continues to struggle in everyday situations and interactions. From a psychological perspective, she clearly has a long road ahead.
·The Applicant has no criminal history.
The Applicant’s criminal offending was violent and sexual and committed against a woman. The Australian Government and the Australian community view such crimes very seriously.[1] In the case of violent crimes against women, the offending is viewed very seriously regardless of the sentence imposed.[2]
[1] Direction 99, subparagraphs 8.1.1(1)(a)(i) and (ii).
[2] Direction 99, subparagraph 8.1.1(1)(a)(ii).
The very serious nature of the Applicant’s criminal offending is reflected in the sentence imposed by the court. Imprisonment is the last option in the sentencing hierarchy. It was imposed with respect to the Applicant’s first incident of criminal offending.
The risk to the Australian community, should the Applicant commit further offences
The Applicant strongly contended that he is a good person who made a big mistake and will never commit a criminal offence again. He had been to a brothel a few times after he split up with L, the mother of his son, JA. He went to the brothel where he committed the offences because he wanted different experiences. He was in a new relationship with his now wife T. She was having her period and he wanted sex. They were not living together.
He claims to have been rehabilitated by undertaking courses while in prison and now understands what ‘consent’ means. He claims to have gained insight into the offending when he heard the victim read out her victim impact statement. He could tell that it was affecting her. He was not expecting that. He had had a wrong idea that sex workers are not feeling things the same as other people. It was his fault, but he was paying for a service and had the wrong idea that it was OK.
The Respondent put the following contentions. The Applicant has a moderate to low risk of reoffending. His conduct and the harm that would be caused if it were repeated, is so serious that any risk that it may be repeated is unacceptable. This consideration weighs heavily against revocation.
The nature of the harm to individuals should the Applicant engage in further criminal conduct is apparent from the sentencing judge’s summary of the conduct involved in each count and the victim’s statement, set out above.
Turning to the likelihood of the Applicant engaging in further criminal conduct, he did not reoffend while he was on bail in the community after his offending from 25 September 2018 until 17 February 2020 when he was put on remand in custody. He has not been in the community since. There is no suggestion in the evidence that he participated in any rehabilitation programs while he was on bail. I take into account the Applicant’s claims to have been rehabilitated and motivated not to reoffend and claims from others that he is a good person, however, in assessing the likelihood that the Applicant will engage in further criminal conduct, I prefer to rely on expert evidence.
Dr Gavan Palk, forensic psychologist, prepared a pre-sentence psychological report dated 15 May 2017 (sic) at the request of the Applicant’s lawyers. Other evidence shows that was May 2020. The report was based on a one-hour telephone call with the Applicant on 26 April 2020, two telephone conversations with the Applicant’s wife, T, and listed documentation. No formal psychological tests could be directly applied to the Applicant because the interview was conducted by telephone and were compiled by Dr Palk by information gathered. Dr Palk observed that cultural and language issues may lead to some misinterpretation of the Applicant’s words, but he took steps to clarify the information by repeating questions and from the two telephone conversations with T.
Dr Palk’s opinions were:
·The Applicant’s pattern of sexual offending was mostly opportunistic and situational. The rapes seem to be unplanned and impulsive, occurring in the spur of the moment when he has sought a legitimate paid sexual service.
·He seems to have lost control due to his need for sexual gratification and lost the ability to control himself or either hear, or have regard to, the sex worker’s request to cease his sexual activity. To some extent the Applicant formed a belief that he had paid for a sexual service and was entitled to do what he did. He has no prior sexual offences, and information from T suggests that his actions were out of character and that he is usually a kind and very nice man.
·The Applicant was ‘currently’ in the low risk range for further sexually related offending, particularly if he remains faithful to his wife and avoids brothels or sex workers to satisfy his sexual desires. This assessment was based on the Sex Offender Risk Appraisal Guide (SORAG), the Sexual Violence Risk-20 (SVR-20), and the Hare Psychopathy Check List (PCL-R).
·He requires intensive psychotherapy to address factors related to his pattern of sexual offending and his current negative affective functioning style and comprehensive relapse prevention plan to ensure he remains a low risk for re-offending.
·The Applicant seemed amenable to treatment and education, and if he is cooperative with treatment, his risk of re-offending will reduce.
The Applicant completed a number of programs related to his offending while he was in prison: Recovery from Substance Abuse; Getting Started: Preparatory Program for Sexual Offending; Build Don’t Break – Resilience Program; and the Moderate Intensity Sexual Offending Program (MISOP) which was undertaken between 6 January 2022 and 22 July 2022. I infer that he was not released from prison when he became eligible for parole on 16 June 2022 because he had not completed the MISOP.
The Applicant referred to speaking to a psychologist about his offending and a report she wrote.
The Applicant completed nine programs relating to work skills and was employed continuously from 15 June 2020 to 12 December 2022, rising from Industries Worker to Senior Industry Worker and finally to Industry Team Leader. His conduct was very good.
A STATIC-99R Assessment conducted by Queensland Corrective Services on 28 July 2020 states that the Applicant’s score was 2 and risk level was ‘moderate-low’. The risk factors considered focus on sexual offending.
A Risk of Reoffending Prison Version (RoR) completed on 22 May 2020 was not in evidence. However, a Queensland Corrective Services document setting out reasons for security classification dated 19 May 2022 refers to that document and an RoR score of 4 which it says indicates that the Applicant fell within a low risk of further general offending, however, it does not indicate the risk of violent re-offending.
On 9 November 2021, the Applicant participated in a STABLE-2007 Assessment. The assessment included the following. The STABLE-2007 is a tool developed to assist clinicians in identifying the STABLE criminogenic needs/intervention targets for sex offender programs and reduction of risk. His total score was 11 and the STABLE-2007 Assessment Outcome was ‘moderate’. The outcome of the assessment is not to be considered as an assessment of sexual recidivist risk. It was determined that the Applicant had moderate intervention needs in relation to his sexual offending behaviour.
It went on:
Prisoner Thompson was polite and engaged in conversation and throughout the interview process, seeming to take time in processing questions, however at times required multiple promptings from the assessor to answer questions in particular depth/self-relevance. It is considered the presentation was largely genuine with any vague responses/inconsistencies being in part as a result of language barriers or shame/guilt regarding the offending and certain aspects within his life. The prisoner reported being motivated to engage in programs to explore his offending behaviour’s and understand his relevant risk areas to prevent a reoffence. Prisoner Thompson has a received a STATIC-99R score of 2, placing him in the category of moderate-low risk for sexual recidivism. As such it is considered that the Moderate Intensity Sexual Offending Program would be the most appropriate treatment…
The Sexual Offending Treatment Program Completion Report about the MISOP, dated 29 September 2022, is comprehensive. The Applicant completed 39 sessions comprising 115 hours from 6 January 2022 to 22 July 2022. The Applicant’s STATIC-99 (static risk level) was assessed as moderate-low. The STABLE 2007 (dynamic risk factors) score was 11.
Under the heading ‘Recommendations: Effect Of Intervention On Treatment Targets’, the report referred to the Applicant understanding some treatment needs, but went on:
It is noted that in relation to treatment needs around hostility towards women, sex/drive preoccupation and deviant sexual preference, the prisoner demonstrated a limited insight. This was due to a general reluctance to discuss what his sexual needs would be in relationships and further was reluctant to discussing any potential negative preconceptions of women which may support an objectification of women.
The report made recommendations about how he be managed under community-based supervision, and that he:
continue to explore the aforementioned areas of need to generate internal strategies in managing his perception of self and others. Additionally, it is recommended he explore what his sexual needs are in relationships and the relevancy of power and control in the context of sexual behaviours which have the potential to support deviant interests around violence/resistance in sex being arousing. Further it is recommended the prisoner further explore his offending behaviour specifically what needs were met with offending behaviour relevant to treatment needs regarding deviant sexual preference. Lastly it is also recommended that prisoner Thompson participate in the Stating On Track: Sexual Offending Maintenance Program (SOMP) in the community, as to further support the development and solidification of appropriate risk mitigation strategies within a group setting. This will afford the prisoner with an opportunity to revise relevant sections of his new future plan where he can be suitably prompted and supported by others to continue developing strategies to support his goals for a new future.
I accept the opinion expressed in the Sexual Offending Treatment Program Completion that the Applicant has a moderate to low risk of reoffending. That report is recent, comprehensive, and prepared after the Applicant had been assessed for appropriate treatment intervention and participated in various programs while in prison, most importantly, MISOP. Dr Palk’s report was prepared before the Applicant was imprisoned and had undertaken those programs, and after a one-hour telephone call with the Applicant and no formal psychological tests being applied.
It is also relevant that the Applicant’s custodial end date is 16 February 2027. It is likely that he will be subject to bail conditions imposed by the Queensland Parole Board until that date if he is released into the community.
The consideration protection of the Australian community weighs heavily against revocation.
The strength, nature and duration of ties to Australia
Before considering the strength, nature and duration of the Applicant’s ties to Australia, it is relevant to set out, in summary, country information about Liberia, sourced from the Department of Foreign Affairs and Trade (DFAT) Report – Economic Community of West African States (ECOWAS) 3 December 2020. Liberia is a member of ECOWAS. The information provided is general in nature.
2.6 …The UN classifies all member states bar Cabo Verde and Ghana as rating Low on the Human Development Index, and poverty continues to be a major challenge in the region. More than half of ECOWAS’ total population lives on less than one US dollar a day, and 10 of the world’s 28 poorest countries in 2018 were in the ECOWAS region. Conflicts and internal political instability have eroded marginal socioeconomic gains in some countries. Even in those parts of the region where post-conflict violence in the region is waning, general instability has left a legacy of negative economic and developmental consequences in the ECOWAS region.
2.7 Unemployment and underemployment are both very high across the ECOWAS region, particularly for the young and for migrants. Informal labour is common, particularly for migrants who tend to work as traders, artisans, and farmers. In-country sources estimate workers employed in the informal sector and the underemployed together constitute around 70 per cent of the overall workforce. Fluctuations in labour demand and supply in the region are generally tied to trends in population growth, political stability and macroeconomic factors in member states. The demand for labour in the region generally stems from agriculture, industry and services.
2.8 Health systems across the ECOWAS region face significant human, financial, infrastructure and medical supply resource challenges, leading in many cases to inadequate provision of health services.…
2.9 The security situation is unstable in many parts of the ECOWAS region. Armed conflict, intercommunal tensions, civil and political unrest, banditry and other security threats have triggered considerable migration flows between ECOWAS member states.…

The Applicant was 30 years old when he arrived in Australia and 40 years old when he committed the offences.
The Applicant’s immediate family members in Australia within the terms of paragraph 8.3(1) of Direction 99 include his wife, T, his two adult sons, D and JO, and his minor son JA, who was born in Australia in February 2016.
D was born in 2001 and JO was born in 1999. They were born in a refugee camp in Guinea. Their mother disappeared while they were in the camp. They are independent. The Applicant has a continuing relationship with his son D, most recently by telephone. He has not spoken to JO since going to prison.
JA lives with his mother, L, who works full-time. The Applicant has a good relationship with her. They were boyfriend and girlfriend from 2014 until about 2016 or 2017. When JA was born, the Applicant had his own place but spent most of his time with L. The Applicant claimed that before he went to prison, he went to see JA and talk to him as a father most days after work. Because of COVID-19 there were a lot of times JA and L were unable to visit him in prison. T took JA to visit Applicant as soon as it was possible to do so. JA ran to the Applicant and could not wait to hug him. They may never see each other again if the Applicant returns to Liberia. They may maintain communication by digital means.
Before he went to prison, when the Applicant was working, he ‘sometimes’ gave L $400 to $500 every month for JA. L’s mother lives with her. JA and L’s two other children spent most of their time with their grandmother after L and the Applicant split up.
The Applicant married T in September 2019. They lived together for about a year before he was taken into custody on 17 February 2020. Their relationship was beginning when he offended in May 2018. T has two children. T was on Centrelink and the Applicant used to contribute to the household finances. Her daughter DA is 11 years old, and her son, A, is an adult and lives with her. The Applicant used to take A to soccer. He helped them both with their homework. He and T arranged for A to do some TAFE units to prepare to go to university. A arrived in Australia in 2016 and had some difficulty with his education because he does not do well in English. He worked really hard to improve his grades. It seems likely that he will remain in Australia if his mother returns to Liberia. She fought very hard to bring him to Australia. He wants to be a doctor or a criminologist.
T claims that she is struggling without the Applicant and will return to Liberia with him and that DA will remain in Australia with her father. She has not discussed that with DA’s father. DA spends most second weekends with her father. T is devoted to the Applicant and he appreciates her support, including with JA and L’s two other children. Whether T remains in Australia or returns to Liberia with the Applicant, if the Applicant leaves Australia she will be very adversely affected. She has had little formal education. After leaving Liberia when she was seven, she grew up in the Ivory Coast, speaking an Ivory Coast dialect of French. She had to learn English when she moved to a refugee camp in Ghana. She has spent the last 10 years in Australia. T does not know much about Liberia, which she left aged seven. She then went to Ivory Coast and then a refugee camp in Ghana where she had her son, A.
Whether DA remains in Australia with her father or accompanies her mother to Liberia, she will be very adversely affected by the Applicant’s removal from Australia, and the possible separation from her mother, or her father if she joins her mother in Liberia.
In the case of T and DA who may return to Liberia, I have taken into account the adverse country information set out above, and that telephone/digital communication is possible with people in another country, which is not comparable to personal contact.
The Applicant and T plan to find better schools for the children and buy a property if he remains in Australia.
The Applicant has a good relationship with L’s daughter, BL, and L’s son, BE, who are minors. They are 13 and 12 respectively. When the Applicant was with L, he used to buy school books and other things for the children at Christmas and New Year and other times. He treated them the same as he treated JA. He claims that they call him ‘Daddy’. He claims that they and JA came to ‘our place’ most weekends and that he has been in their lives a long time, teaching them lessons and doing things like going to the park. Their father lives in Australia but has little to do with them. L has married a former boyfriend in Africa. She has applied for a partner visa for him. She strongly supports the Applicant remaining in Australia for the sake of the children.
Before he went to prison, the Applicant and L planned that JA would go to a Christian school but because he is not there, L has decided to send JA to the same school BL and BE attend.
The Applicant’s wife T helps L with the children who stay with her, although that slowed down during COVID-19. Once visiting was allowed in prison, T visited the Applicant every weekend and took the children when she could. While in prison, he called the children two or three times a week, although it was expensive.
The Applicant, L, T and all the minor children are an extended family. That conclusion is supported by the evidence of L’s brother.
The Applicant has other social links. He provided a very favourable reference from the veterinary scientist who formerly managed a government facility near Brisbane, and other supportive references from a Liberian community group, a co-worker, a friend who was a former neighbour, a pastor, and another friend whom he helped when her Centrelink payments were cut off while she was in Africa trying to get her mother and some children to Australia.
If the visa cancellation were not revoked, I give greatest weight to the adverse impact on T, JA and DA and less weight on the impact on A and D and least weight on the impact on BL and BE. There would also be an adverse impact on L if she lost the support that the Applicant provides with respect to JA and BL and BE. She would suffer a further loss of support if T returned to Liberia with the Applicant.
The Applicant talked about his brother B, who D and JO lived with for some time from 2017 because he had spare rooms. The Applicant contributed to D’s board and paid for his books. The Applicant claimed that B used to visit him and they used to talk on the telephone. I give little weight to the impact on B because I am not sure that he is in Australia. The Applicant told Dr Palk that his brother had returned to Liberia. There is no statement from him.
The Applicant has a strong work history in Australia, including while he was in prison, a period of about 13 years. He was a process worker and delivery driver before going into custody. He had some involvement with a Liberian soccer team in Australia, including providing financial support. He received a certificate from the Lord Mayor of Brisbane for his assistance during the clean-up after the 2011 floods. He attended church.
This consideration weighs very heavily in favour of revocation.
The best interests of minor children in Australia
It follows from the consideration set out above and elaborated below, that revocation is in the best interests of:
·     JA. JA’s mother L has always had the primary parental role in JA’s life. The Applicant’s parental role has been secondary and was impacted negatively during the last three years since he has been in custody and immigration detention. He spent less time with JA from about 2016 when his relationship with L ended. JA seems very attached to him. He has provided some financial support to JA when he was working. The country information shows that the Applicant’s capacity to provide financial support for JA is likely to be much less, if not nil, if he returns to Liberia.
·     DA. It seems that whether T leaves DA in Australia or takes her to Liberia, depends on whether DA’s father is prepared to care for her. DA spends some time with her father about every second weekend. He helps with child support sometimes, but never more than $200 or $250. Whether he would continue to do so if DA returns to Liberia is unknown. DA has lived in Australia with her mother all her life. She will probably be separated from one of her parents if the Applicant returns to Liberia. If the Applicant remains in Australia, he will again provide financial support to the family unit which includes DA.
·     BL and BE, but to a lesser extent. The Applicant forms part of their extended family.
I have taken into account in the case of each child that communication may be possible with the person in a different country by telephone or digital devices. Such communication falls far short of personal contact.
I do not accept the Respondent’s contention that the Applicant’s history of offending raises doubts about his ability to play a positive role in the lives of those children if he was released into the community. He has played a positive role in the past. I do not consider that his offending has changed his ability to do so in the future.
This consideration weighs very heavily in favour of revocation.
The expectations of the Australian community
Paragraph 8.5 of Direction 99 ‘is about the expectation of the Australian community as a whole’. Paragraph 8.5(4) provides that ‘Decision-makers should proceed on the basis of the Government’s views as articulated’ in paragraphs 8.5(1), 8.5(2) and 8.5(3), ‘without independently assessing the community’s expectations in the particular case’.
Paragraph 8.5(1) of Direction 99 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. As a norm, 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 expects the Government not to allow that person to enter or remain in Australia.
Paragraph 8.5(2) of Direction 99 provides that, in addition, non-revocation of the mandatory cancellation of a visa may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not continue to hold a visa. In particular, the Australian community expects that the Australian government can and should cancel their visas if they raise serious character concerns through conduct of certain kinds.
That conduct includes the commission of serious crimes against women, that is, crimes of a violent or sexual nature. The Applicant’s crimes were violent and sexual.
Paragraph 8.5(3) of Direction 99 says that those expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Given the Applicant’s repeated acts of sexual violence against a woman, the Australian community would expect that he should not continue to hold a visa and the Australian government can and should cancel his visa.
This consideration weighs heavily against revocation.
Other considerations
Legal consequences of the decision
I am not satisfied that the Applicant has made any claims that give rise to international non-refoulement obligations for consideration. He is not covered by a protection finding as defined in section 197C(5) of the Act. Therefore, paragraph 9.1.2 of Direction 99 applies.
He has made the following claims about what will happen to him if he returns to Liberia:
·He was a refugee from his country and had seen a lot of bad things including people being shot. He did not have good mental health before he came to Australia and is having nightmares about going back. 250,000 people were killed during the civil war and there is still a lot of danger in Liberia. It is very violent and lawless and bribes have to be paid for protection. He is afraid to return.
·He will not be able to get work because of the poor economic conditions in Liberia and will suffer financial hardship and will have no place to live.
·The health system in Liberia is in a parlous state and he will not be able to get mental health treatment.
Dr Palk diagnosed the Applicant with Post Traumatic Stress Disorder (PTSD). The evidence does not suggest that he has had any treatment for the condition, including counselling, in Australia. During the Detention Client Interview conducted by telephone on 13 December 2022, the Applicant answered ‘No’ to the question ‘Do you have any health issues that require treatment. During the same interview, his reasons why he cannot return to Liberia were that all his family are in Australia, he has no support network in Liberia, and he spent many years living in refugee camps after leaving Liberia.
The Applicant’s claims lack detail and supporting evidence. In December 2005 he returned to Liberia from the refugee camp in Guinea where he had been gainfully employed. In Liberia he had a business as a bricklayer and a seasonal business selling ice cream until arriving in Australia in 2008. There was no evidence that he suffered harm during the period he was back in Liberia. The evidence does not suggest that his return to Liberia was involuntary.
The matters which he has raised will be taken into account in the consideration of the extent of impediments if removed from Australia.
If the Applicant does have claims that may give rise to international non-refoulement obligations, he may apply for a protection visa.
I give this consideration no weight.
Extent of impediments if removed
This consideration is about the impediments the Applicant may face if removed from Australia to Liberia, in establishing himself and maintaining basic living standards ‘in the context of what is generally available to other citizens of that country’.
The Applicant is 45 years of age and in good physical health, apart from one matter. He claimed to sometimes have a problem with his eyes which he attributed to voodoo. He provided no evidence that the problem had adversely impacted his life to any significant extent.
He lived in Liberia until about 1991 when he was in year six. He moved to a refugee camp in Guinea with his parents, younger sister and two younger brothers because of the civil war in Liberia. He completed his education in the camp and worked for two organisations. He returned to Liberia in 2005 where he had a business as a bricklayer and a seasonal business selling ice cream before arriving in Australia in 2008.
There are no substantial language or cultural barriers facing the Applicant if he returns to Liberia. In Australia he has had Liberian partners and mixed in the Liberian community.
Dr Palk formed the view that the Applicant was traumatised by his experiences in Liberia and the refugee camp and met the DSM-5 and/or ICD-10 diagnostic criteria to be ‘classed with Post Traumatic Stress Disorder’. Based on his report and other evidence, being deported and not being able to participate in the life of JA, and to a lesser extent the life of each of D, DA, BL and BE, will weigh heavily on the Applicant. Dr Palk was of the opinion that the Applicant could benefit from counselling to manage his then mild depression (relating to his then forthcoming sentencing and prospect of deportation), improve his relationship skills and to develop coping strategies to manage the psychological trauma he suffers. The Applicant has said that he would like to get treatment for his PTSD, although it seems to have been untreated to date. The country information indicates that the health system in Liberia is likely to be inadequate.
The Applicant claims that he will have nowhere to stay. The war destroyed where his father’s house was. His father and his daughter are renting somewhere but they are complaining a little because it has become so hard for them. His sister and two brothers live in Liberia. His two brothers live on farms ‘in the bush’. His father and sister live in cities. He raised the possibility of going to another country but was not familiar with the security situations there or where he is going and has no relatives in countries close to Liberia.
The Applicant was able to work and care for himself and, I infer, his younger brother and two sons from 2005 to 2008. If he returns, T is likely to go with him. DA may go as well. T is capable of working in unskilled work, if she can find any. I infer from the country information that it would be poorly paid. The need for emotional and financial support for T and DA is likely to be an additional impediment to the Applicant re-establishing himself in Liberia.
It is unlikely that the Applicant or T will have any support from family members in Liberia. It seems that everyone is trying to look after themselves, or in the case of the Applicant’s father, with support from family in Australia, and in the case of T’s paternal grandmother who brought her up, support from some of her children. T has had little contact with and knows very little about her mother who is married to a farmer and lives in the interior in Liberia. She also has an uncle in Liberia but did not know much about him.
This consideration weighs moderately in favour of revocation.
Daughter and father in Liberia
An ‘Other’ consideration is that the Applicant claimed that while he has been in Australia, he provided some financial support to his 79 year old father, and his 15 year old daughter who lives in Liberia with her mother but will not be able to if he returns to Liberia.
The Applicant’s younger brother continues to support their father but sends less than he did. T has sent some money to him as well for medications.
The Applicant claimed that before he went to prison, he was providing financial support to his son JA, T, and to an extent, her children. I accept that he has provided some financial support to his father and daughter in Liberia but given his other financial responsibilities and that the amounts he claimed to send varied from $100US or $200US to ‘a little bit of money’, I am unsure how frequently or how much. As JA grows up, I expect the financial support he requires will increase, particularly as the Applicant wants to send the children to better schools. I find that the Applicant sends money to his father and his daughter as he is able to afford to. They will be adversely impacted to that extent because the Applicant will have less financial capacity.
This consideration weighs slightly in favour of revocation.
Conclusion
Weighing up the considerations for and against revocation of the mandatory visa cancellation, I have concluded that the primary considerations, the Strength, nature and duration of ties to Australia, and Best interests of minor children in Australia, and the other considerations, Extent of impediments if removed, and impact on his daughter and father in Liberia, outweigh the primary considerations, Protection of the Australian community and Expectations of the Australian Community.
There is another reason to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
The reviewable decision is set aside, and the decision is made that there is another reason to revoke the mandatory cancellation of the Applicant’s Partner (Permanent) (Subclass 801) visa.

I certify that the preceding 89 (eighty-nine) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

................................[sgd]........................................
Associate
Dated: 29 June 2023

Dates of hearing:

20-21 June 2023

Solicitor for the Applicant:

Mr P Ramirez, Circuit Legal

Solicitor for the Respondent:

Ms S Roberts, Mills Oakley Lawyers

[2023] AATA 1880

29 June 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Dates of hearing:	20-21 June 2023
Solicitor for the Applicant:	Mr P Ramirez, Circuit Legal
Solicitor for the Respondent:	Ms S Roberts, Mills Oakley Lawyers