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

[2022] AATA 3828

VDXX and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3828 (2 November 2022)

Appid: VDXX and Minister for Immigration, Citizenship and Multicultural Affairs

Mattertype:    Migration

Division:GENERAL DIVISION

File Number:          2022/6531

Re:VDXX  

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Dr L Bygrave, Member

Date:2 November 2022

Place:Sydney

The decision under review is set aside and, in substitution, the cancellation of the Applicant’s visa is revoked under subsection 501CA(4) of the Migration Act 1958 (Cth).

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

Dr L Bygrave, Member

Catchwords

MIGRATION – cancellation of visa – Refugee (Class XB) (Subclass 200) visa – visa cancelled under s 501(3A) of the Migration Act 1958 (Cth) – Applicant did not pass character test – criminal record – Ministerial Direction No. 90 – primary considerations – protection of Australian community from criminal or other serious conduct – family violence committed by Applicant – best interests of minor children in Australia – expectations of Australian community – other considerations – international non-refoulement obligations – extent of impediments if Applicant removed – links to Australian community – strength, nature and duration of ties to Australia – decision under review set aside and substituted

Legislation

Migration Act 1958 (Cth) ss 499, 500, 501, 501CA

Crime (Sentencing Procedure) Act 1999 (NSW) s 7

Cases

Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; 183 CLR 273

Deng v Minister for Immigration, Citizenship, Mirant Services and Multicultural Affairs [2022] FCAFC 115

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 (15 April 2021).

‘Annex Human Development Index and its components’ in the ‘Human Development Report 2021-2022’. United Nations Development Programme (2022).

‘Democratic Republic of the Congo 2021 Human Rights Report, US State Department Human Rights Report 2021’. United States Department of State Bureau of Democracy, Human Rights and Labor.

‘Democratic Republic of Congo Events of 2021’, Human Rights Watch. 

‘Democratic Republic of Congo Travel Advice’, Department of Foreign Affairs and Trade, Australian Government (29 July 2022). 

‘Psychology in the Democratic Republic of the Congo: Its struggles for birth and growth’, by Jean Ikanga, American Psychological Association (1 December 2014).  

‘Mental Health in the Democratic Republic of Congo: a post-crisis country challenge’, by Michel Okitapoy On’okoko et al, International Psychiatry, Volume 7, Number 2 (April 2010).

‘Chronic Alcohol Abuse’ by Christopher Harrison et al, Royal Australian College of General Practitioners (2016). 

‘Drug and Alcohol Withdrawal Clinical Practice Guidelines’, NSW Mental Health and Drug and Alcohol Office, NSW Department of Health (January 2008).

‘Obstacles to alcohol and drug care, are Medicare locals the answer’, by Lynda Berends and Dan Lubman, Australian Family Physician, Volume 42, No 5 (May 2013).

‘Heavy alcohol consumption among marginalised African refugee youth in Melbourne, Australia: motivations for drinking, experiences of alcohol related problems, and strategies for managing drinking’, Horyniak, Danielle et al, Ethnicity and Health, Volume 21, Issue 3 (2016).

‘Addressing Alcohol and Substance Use Disorders among Refugees: A Desk Review of Intervention Approaches’, United Nations High Commissioner for Refugees (August 2018).

‘Mental health and drug and alcohol comorbidity in young people of refugee background: A review of the literature’ by Miriam Posselt et al, Mental Health and Substance Use Dual Diagnosis (January 2013).

‘Adult Survivors of Childhood Trauma: Complex trauma, complex needs’ by Wei May Su and Louise Stone, The Royal Australian College of General Practitioners, Volume 49, No.7 (July 2020).

1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

International Covenant on Civil and Political Rights and its Second Optional Protocol

REASONS FOR DECISION

Dr L Bygrave, Member

2 November 2022

Introduction

1. The Applicant is a 32-year-old male who was born in the Democratic Republic of Congo (DRC). He arrived in Australia on 16 October 2013 after he was granted a Refugee (Class XB) (Subclass 200) visa (visa).

2. On 16 November 2021, the Applicant was convicted in the New South Wales (NSW) Local Court of the offence, ‘contravene prohibition/restriction in AVO [Apprehended Violence Order] (Domestic)’ and sentenced to an Intensive Corrections Order (ICO) of 12 months.[1]  The ICO was made under section 7 of the Crime (Sentencing Procedure) Act 1999 (NSW) and stated the term of the sentence was 12 months ‘imprisonment … to be served by way of intensive correction in the community’.[2] The Applicant subsequently breached the conditions of the ICO and, on 2 February 2021, a NSW State Parole Authority Order revoked the ICO ‘from 20 December 2020’.[3] The Applicant served the remainder of his 12 months sentence – a period of ten months and 27 days – in prison.

   [1] Exhibit G-G6, 35.

   [2] Exhibit R1-TB2, 84.

   [3] Exhibit G-G14, 66.

3. On 16 February 2021, the Department of Home Affairs (the Department) notified the Applicant in writing that his visa was cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (the Act) on the basis that he did not pass the character test on the following ground: he had a ‘substantial criminal record’ as defined in subsection 501(7) of the Act because he had been ‘sentenced to a term of imprisonment of 12 months or more’ and he was ‘serving a sentence of imprisonment, on a full-time basis’.[4]

   [4] Exhibit G-G17, 70-76.

4. The Applicant completed a Request for Revocation of a Mandatory Visa Cancellation Under S501(3A) form and lodged a Personal Circumstances Form, and his legal representative filed supporting documents to the Department on 23 March 2021, 26 July 2021 and 23 May 2022.

5. On 9 August 2022, a delegate of the Minister[5] decided not to revoke the decision to cancel the Applicant’s visa. The Applicant was notified of this decision on 11 August 2022.

   [5] Referred to in the decision as ‘Delegate of a Minister administering the Migration Act 1958’.

6. On 11 August 2022, the Applicant made an application for review of this decision to the General Division of the Administrative Appeals Tribunal (the Tribunal).

7. The matter was heard by the Tribunal by videoconference on 19 and 20 October 2022. The Applicant had legal representation; he attended the hearing and gave oral evidence from Villawood Immigration Detention Centre.

   relevant legislation and policy

   The power to revoke a visa cancellation

8. Subsection 501(3A) of the Act states:

   (3A) The Minister must cancel a visa that has been granted to a person if:

   (a) the Minister is satisfied that the person does not pass the character test because of the operation of:

   (i)  paragraph (6)(a) substantial criminal record, on the basis of paragraph (7)(a), (b) or (c);

   …

   (b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. [emphasis added]

9. The character test is set out in subsection 501(6) of the Act. Relevantly, paragraph 501(6)(a) of the Act states that ‘a person does not pass the character test’ if they have a ‘substantial criminal record’ as defined by subsection 501(7); and paragraph 501(7)(c) of the Act defines a ‘substantial criminal record’ as the ‘person has been sentenced to a term of imprisonment of 12 months or more’.

10. Section 501CA of the Act sets out the provisions that apply if the Minister makes a decision (the original decision) under subsection 501(3A) to cancel a person’s visa. Subsection 501CA(4) relevantly provides:

    (4) The Minister may revoke the original decision if:

    (a) the person makes representations…; and

    (b) the Minister is satisfied:

    (i) the person passes the character test (as defined by section 501); or

    (ii) that there is another reason why the original decision should be revoked. [emphasis added]

11. I am satisfied the Applicant does not pass the character test in subsection 501(6) of the Act for the following reasons. The Applicant’s criminal record includes a conviction in the NSW Local Court on 16 November 2020 for the offence ‘contravene prohibition/restriction in AVO (Domestic)’ for which he was sentenced to an ICO of 12 months imprisonment to be served in the community. I therefore must find, pursuant to paragraph 501(7)(c) of the Act, that the Applicant has a ‘substantial criminal record’ as he was sentenced to ‘a term of imprisonment of 12 months or more’. I am further satisfied that paragraph 501(3A)(b) of the Act was enlivened when the NSW State Parole Authority Order revoked the ICO on 2 February 2021 and the Applicant was required to serve the remainder of his sentence in prison on a full-time basis.

12. Subparagraph 501CA(4)(b)(ii) of the Act requires that I consider whether there is another reason to revoke the decision to cancel the Applicant’s visa. The power of the Tribunal to review the decision to cancel his visa is provided by subsection 500(1) of the Act. The Minister has given written directions as to the exercise of the power to review the decision under subsection 499(1) of the Act and subsection 499(2A) of the Act provides that I must comply with these directions.

13. The relevant direction is Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction No. 90), which commenced on 15 April 2021.

    Direction No. 90

14. Direction No. 90 provides the following guidance on how the discretion is to be exercised:

    6. Exercising the discretion

    Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

15. The Minister sets out the principles in paragraph 5.2 that provide a framework to approach the task of deciding whether to revoke a mandatory visa cancellation under section 501CA of the Act. 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 non-citizens 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 non-citizens who have lived in the Australian community for most of their life, or from a very young age.

    (5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be  insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.

16. Primary considerations are listed in section 8 of Direction No. 90 as follows:

    (1)protection of the Australian community from criminal or other serious conduct;

    (2)whether the conduct engaged in constituted family violence;

    (3)the best interests of minor children in Australia; and

    (4)expectations of the Australian community.

17. Other considerations are set out at section 9 of Direction No. 90. These include (but are not limited to):

    (1)international non-refoulement obligations;

    (2)extent of impediments if removed;

    (3)impact on victims;

    (4)links to the Australian community, including:

    (a)strength, nature and duration of ties to Australia; and

    (b)impact on Australian business interests.

18. Section 7 of Direction No. 90 states that in applying the primary and other considerations: information and evidence from ‘independent and authoritative sources’ should be given appropriate weight; primary considerations ‘should generally be given greater weight’ than the other considerations; and one or more primary considerations ‘may outweigh other primary considerations’.

    Evidence

    The Applicant’s personal and family history

19. The Applicant was born in Fizi in the South Kivu region of the DRC in 1990. He is a member of the Banyamulenge ethnic group, a minority ethnic group in the DRC.

20. In his statutory declaration dated 16 March 2021, the Applicant wrote:

    There was war in my country while I was growing up. When I was around 5 years old my grandfather and uncle were both killed by rebels, while we were living in Fizi. My uncle’s head was cut off. My grandfather’s arms and legs were bound and he was thrown in the river. I was hiding, and saw everything that happened. I still remember everything.[6]

    [6] Exhibit G-G21, 125.

21. The Applicant and remaining members of his family subsequently fled the DRC to Rwanda, where the Applicant attended school. Due to hardship and continuing to feel unsafe being close to the Congo, the Applicant and his family moved to Nairobi, Kenya when he was 18 years old. In Kenya, they registered as refugees with the United Nations Refugee Agency.

22. The Applicant was granted a Refugee (Subclass 200) visa offshore and he subsequently arrived in Australia with his adopted brother, Mr ‘A’, when he was 23 years old.

23. On arrival in Australia, the Applicant and Mr ‘A’ immediately travelled to a regional town on the NSW/Victorian border. The Applicant attended TAFE to learn English and commenced employment in the local abattoir to financially support himself and his family members who remained in Kenya. He later obtained forklift and ‘big machine’ licences and worked as a forklift driver, and attained a certificate III in carpentry from TAFE.[7] The Applicant was employed full-time on a casual basis until 2019.

    [7] Exhibit G-G24, 245-246.

24. The remaining members of the Applicant’s family came to Australia in 2015. This included his father and mother, and six younger siblings (four sisters and two brothers). Sadly, the Applicant’s mother died due to liver cancer in February 2016 only months after she arrived in Australia.

25. The Applicant’s Personal Circumstances Form lists further details of his extended family members living in Australia including three grandparents, six uncles/ aunts, three nieces/ nephews, ten cousins and a stepsister.

26. The Applicant met his wife, Ms ‘B’, in December 2016 and they married in November 2017. The Applicant and Ms ‘B’ have four children: ‘C’, the Applicant’s stepson aged 11 years; ‘D’, their son aged almost four years; and ‘E’ and ‘F’, twins (daughter and son) who are two years old. Ms ‘B’ and their four children are Australian citizens.

    The Applicant’s alcohol addiction

27. The Applicant started drinking alcohol as a child; he recalls his grandfather (who he described as an alcoholic) and uncle giving him alcohol when he was younger than five years old. He continued to drink alcohol on weekends when he was in high school in Kenya and would drink after work when he got a job after school, ‘not everyday, but quite often’.[8]

    [8] Exhibit G-G24, 246.

28. The Applicant drinks alcohol because it makes him ‘feel good’ and helps him to ‘forget’ his past traumas.[9] In his statutory declaration dated 11 May 2022, he wrote:

    I started really struggling with my alcohol problem when my mum died in 2015 [sic]. I was devastated to lose her so soon after we reunited. She finally came to Australia in 2015 and then I lost her just months after she arrived. I used to drink almost everyday and every night. I was so sad and I was trying to forget about the sadnesses and all of the thoughts in my head. I used the alcohol to still my mind and forget all of my bad memories. This is when my alcohol problem really got out of control, and I couldn’t stop myself from drinking.[10]

    [9] Exhibit G-G21, 126.

    [10] Exhibit G-G24, 246.

29. The Applicant’s father, Mr ‘G’, confirmed in his evidence that the Applicant ‘has had difficulty with the consumption of alcohol for many years’.[11] Mr ‘G’ (and other family members) also stated the Applicant was devastated by the death of his mother soon after she arrived in Australia and it was after this sad event that his drinking became significantly worse.

    [11] Exhibit G-G21, 229.

30. The Applicant has made attempts to address his alcohol addiction. The evidence of the Applicant, Ms ‘B’ and Mr ‘G’ is that his family have tried to get him help in relation to his drinking. The Applicant attended some alcohol counselling sessions in 2016; however, he did not continue due to stigma in the Congolese community associated with mental health. As described by Ms ‘B’, when a person attends counselling, the Congolese community ‘think you are crazy or mentally ill’.[12] The Applicant has also trialled medication (Acamprosate and Naltrexone), which have not worked, and went to a doctor in Melbourne in 2019 to have an implant (Antabuse) to help him stop drinking alcohol. The Applicant stated that, despite these interventions, he ‘still felt the need to drink alcohol, and … kept drinking anyway’.[13]

    [12] Exhibit G-G21, 143.

    [13] Exhibit G-G24, 246.

31. This evidence is verified in a report by Dr ‘KT’ (general practitioner) dated 19 March 2021, which stated the Applicant had ‘been battling his alcohol addiction for several years’, listed the interventions he has trialled, and opined a treatment to help the Applicant ‘maintain a sustained abstinence from alcohol’ had not yet been found.[14] Dr ‘KT’ noted:

    More recently we had tried to get him admitted to a drug and alcohol treatment program in Sydney, but they would only accept referrals from doctors practicing in NSW and despite [the Applicant] himself residing in NSW they were unable to accept a referral from any of the Doctors at [‘GH’] as we practice in Victoria.[15]

    [14] Exhibit G-G21, 131.

    [15] Exhibit G-G21, 131.

32. It is the view of the Applicant, his wife and his family that he needs to attend a long-term residential rehabilitation program in order to address his significant alcohol addiction.

    The personal history of the Applicant’s wife, Ms ‘B’

33. The personal history of Ms ‘B’ is highly relevant to understanding the Applicant’s criminal history. Ms ‘B’ is 30 years old; she arrived in Australia on a Women at Risk (Class XB) (Subclass 204) visa in December 2016.

1. In her statutory declaration dated 15 March 2021, Ms ‘B’ wrote that she was born in the DRC and lived with her parents, two brothers and two sisters. She and her family are members of the Banyamulenge ethnic group. Ms ‘B’ stated:

   Ever since I was born there has been fighting between different tribes in my country. In 2008 I was kidnapped by rebels. I was raped and assaulted over the three years that I was held captive. As a result of this my first child [‘C’] was born … when I was 19 years old. I managed to escape from the rebels and then from DR Congo in 2011.

   I fled the DRC around the end of 2011 because of the war. I fled with two other girls who were also captive. I could not find my family, but I found some neighbours and I travelled with them. We passed through Uganda where we stayed almost 10 months, and then we went to Nairobi Kenya in around July 2013. When I arrived in Nairobi, I was by myself and with my baby son. I was 21 and [‘C’] was 2 years old…

   In Nairobi I registered with UNHRC, and I was eventually granted a visa to Australia in October 2016. I arrived in Australia … [in] December 2016…[16]

   [16] Exhibit G-G21, 141.

2. Ms ‘B’ explained in her evidence to the Tribunal that she is very sensitive to people drinking alcohol as it triggers bad memories and trauma associated with the period she was held captive. She wrote on 15 March 2021:

   I … have some unresolved issues in relation to the trauma I went through. When I was kidnapped by rebels in the DRC, they used to drink a lot, and they would try to force me to drink, and then assault me. I have really hated alcohol since then, I don’t like to be around people drinking. When I got married to [the Applicant], when I noticed he was drinking, it triggered everything in me.[17]

   [17] Exhibit G-G21, 142-143.

3. Since December 2016, Ms ‘B’ has lived in a regional town on the NSW/Victorian border. She is employed full-time with the Australian Red Cross providing support for refugees from the DRC and culturally and linguistically diverse communities.

4. In her statutory declaration dated 15 March 2021, Ms ‘B’ explained her relationship with the Applicant:

   I decided to get married to [the Applicant] because he is a very nice person, very calm. He is very organised, and he likes to have everything in place, I loved that. It was also very important to me the way he treated my son [‘C’]. They had a connection, they played soccer together, and he treated him very kindly. They got along well with each other. It wasn’t like a forced thing, and he wasn’t trying to be like a father to him, but a friend, and that really interested me. If I don’t think about alcohol, he is lovely to be around, he is a good help around the house, he loves the kids, and he loves me too, and I know that. What attracted me to him is that he is very soft and very kind. That’s why I love him.[18]

   [18] Exhibit G-G21, 141-142.

5. Ms ‘B’ has no family support in Australia except for the Applicant and his extended family. Since coming to Australia, Ms ‘B’ has located one sister and one brother who are in Nairobi, Kenya and has applied for visas to bring them to Australia; however, she has not been able to locate her parents or any other surviving members of her family.

   The Applicant and Ms ‘B’’s children

6. The Applicant and Ms ‘B’ are the parents of four minor children.

7. ‘C’ is 11 years old; he is Ms ‘B’ biological son and the Applicant’s stepson. ‘C’ was born from a non-consensual relationship during the period that Ms ‘B’ was kidnapped by rebels in the DRC. The Applicant met ‘C’ when ‘C’ arrived in Australia aged five years with Ms ‘B’ and he is the only father figure ‘C’ has known. In his Personal Circumstances Form, the Applicant stated that they have a ‘good relationship’ and they ‘play soccer together and can chat together on our common interest in soccer’.[19]

   [19] Exhibit G-G20, 90.

8. The Applicant and Ms ‘B’’s son, ‘D’, is almost four years old. A medical report by Dr ‘AR’ (paediatrician) dated 10 February 2022 stated ‘D’ had been assessed and diagnosed with:

   ·Autism Spectrum Disorder requiring ‘at least level 2 support (if not level 3)’; and

   ·Global Developmental Delay ‘most marked in the area of speech and language’ and ‘really delayed in social skills and fine motor development’.[20]

   [20] Exhibit G-G24, 253.

9. ‘D’ is a participant in the National Disability Insurance Scheme (NDIS); his two-year NDIS plan that commenced on 1 April 2022 includes core supports and capacity building supports for activities of daily living.  Ms ‘B’ told the Tribunal that core supports of six hours a week provide domestic assistance for house cleaning and some meal preparation.

10. The Applicant wrote in his Personal Circumstances Form that ‘D’ is his ‘favourite child’, they ‘play a lot and [‘D’] enjoys singing with [him].[21] He further wrote that ‘D’ ‘loves [him] greatly and lights up when [he] comes home’, and ‘comes to [him] for comfort when he is in trouble for a naughty act’.[22] The Applicant acknowledged that, due to his developmental delay, ‘D’ will need ‘more intense help as he grows up’ and his wife ‘cannot do all that alone.’[23]

    [21] Exhibit G-G20, 90.

    [22] Exhibit G-G20, 90.

    [23] Exhibit G-G20, 90.

11. ‘E’ and ‘F’ are twins (daughter and son) of the Applicant and Ms ‘B’ who are currently two years old. The Applicant was in jail for approximately one month in the period when ‘E’ and ‘F’ were born, and only spent several months with them in 2020 before he was incarcerated. In his Personal Circumstances Form, the Applicant wrote that his daughter is named after his mother, he is ‘missing them greatly – not being able to [see] them grow and to be their father’, and they are ‘alert and outgoing and will need a guiding father.’[24]

    [24] Exhibit G-G20, 90.

12. In her statutory declaration dated 15 March 2021, Ms ‘B’ described the Applicant’s relationship with their children:

    [The Applicant] is a good father to the children, they have a close and loving relationship. He loves the kids very much and they love him. They always make funny sounds to each other to make each other laugh. Even now while he is in prison, when they talk on the phone, he makes the funny sounds to make them laugh.

    He has never hurt the children. He is a joyful parent, and he helped me a lot. When I had the twins, he used to take [‘C’] to school. He would wake him up and make his breakfast and help him get ready. He would drive [‘C’] to school and take the two year old to day care.

    I am the one that gives them discipline, and he is the one they run to and play with.[25]

    [25] Exhibit G-G21, 142.

13. At the Tribunal hearing, the Applicant and Ms ‘B’ gave oral evidence about the Applicant’s relationship with his four children. They both acknowledged that the Applicant is closer to ‘C’ and ‘D’, and – due to his time in prison and detention – has only spent several months with ‘E’ and ‘F’ since they were born. During his time in detention, however, the Applicant has maintained his relationship with their children by phone/video. Ms ‘B’ said the older two children particularly miss the Applicant and ask about when he is coming home.

    The Applicant’s criminal history

14. The Applicant’s criminal record is detailed in an Australian Criminal Intelligence Commission (ACIC) report dated 17 November 2021 and includes convictions for the following offences:

    ·Victoria Magistrates Court, 1 September 2016.

    oOffence: ‘Recklessly cause serious injury’. Result: Conviction and sentenced to a Community Correction Order for 18 months. Perform 200 hours of unpaid community work.

    ·NSW Local Court, 15 May 2018.

    o‘Drive motor vehicle during disqualification period – 1^st off’. Result: ‘Bond s 9, 6 months disqualification – driver: 3 months’.[26]

    [26] Exhibit G-G6, 37.

15. In the period from 15 February 2019 to 11 June 2021, the ACIC report also shows the Applicant has:

    ·13 convictions of the offence, ‘contravene prohibition/restriction in AVO (Domestic)’ in the NSW Local Court. Results: community corrections orders for convictions until 16 November 2020, when he was sentenced to an ICO for 12 months.

    ·Two convictions of the offence, ‘destroy or damage property (DV) [domestic violence]’ in the NSW Local Court. Results: community corrections orders for convictions until 16 November 2020, when he was sentenced to an ICO for 12 months.

    ·One conviction of the offence, ‘destroy or damage property <=$2000 (DV)-T2’, in the NSW Local Court. Result: community correction order for 12 months.

    ·Two convictions of the offence, ‘resist officer in the execution of duty-T2’, in the NSW Local Court. Results: community corrections orders for these convictions until 16 November 2020, when he was sentenced to an ICO for 12 months.

    ·One conviction of the offence, ‘contra-fam violence interim interven ord [sic]’, in the Victorian Magistrates Court. Result: fined $500.[27]

    [27] Exhibit G-G6, 33-37.

16. For completeness, the ACIC report referred to two pending charges in Victoria. However, I place no weight on this information as ‘these charges have not been determined by a court [and] cannot be regarded as a finding of guilt against’ the Applicant.’[28]

    [28] Exhibit G-G6, 34 and 36.

17. The Applicant’s conviction for ‘recklessly cause serious injury’ in the Magistrates Court on 1 September 2016 related to a domestic argument between the Applicant and his adopted brother, Mr ‘A’, on 22 December 2015. A Victoria Police ‘Sub Incident Summary Report’ provided a narrative that the Applicant had ‘drunk beers at a friend’s house’, came home and argued with Mr ‘A’, and ‘assaulted his brother with a 5 kg dumbbell weight to head’.[29] Mr ‘A’ was ‘knocked unconscious with serious head wounds’ and transferred to hospital in Melbourne.[30]

    [29] Exhibit R1-TB4, 167-168.

    [30] Exhibit R1-TB4, 167-168.

18. In his statutory declaration on 16 March 2021, the Applicant accepted he has ‘one conviction for a violent offence, for “recklessly cause serious injury”’.[31] The Applicant wrote:

    I was living with my adoptive brother ... I had an argument with him. We didn’t have any problems before. He used to open my mail, and I told him not to. He started shouting at me, and I was drunk. I hit him with a 5kg dumbbell on his head. He started bleeding and fell down.

    I called my brother … and my cousin …, then I called an ambulance to help [Mr ‘A’]. They took him in the hospital, and he was released after 2 to 3 days. I was arrested and charged with recklessly cause serious injuries. I plead guilty. I received a community correction order for 18 months, and unpaid community service for 200 hours. I am very sad that I hurt my brother. It is very outside of my character to be violent, and I don’t have any other convictions for violent offences.[32]

    [31] Exhibit G-G21, 126.

    [32] Exhibit G-G21, 126.

19. At the Tribunal hearing, the Applicant said he was very drunk and angry with Mr ‘A’ when he hit him with the dumbbell. He said he did not mean to hurt Mr ‘A’ and began to cry when he saw him on the ground. He said he moved to his father’s home after the incident and has since maintained a good relationship with Mr ‘A’.

20. The Applicant provided the following explanation in his statutory declaration dated 16 March 2021 for his conviction for ‘drive motor vehicle during disqualification period’ in the NSW Local Court on 15 May 2018:

    I used to drive in Rwanda and in Kenya, and I didn’t have a licence. So when I arrived in Australia, I didn’t think about organising to get my licence. In 2018 my wife was pregnant and wasn’t feeling well. I was moving to a new house, and I didn’t have much money for movers, and I drove to move our stuff to the new house. The police pulled me over and I was convicted of driving while disqualified. I got my driver’s licence in 2019. I am now very aware of the law, and I will never drive without a licence again.[33]

    [33] Exhibit G-G21, 126.

21. The Applicant’s convictions listed in paragraph 48 relate to his behaviour while intoxicated. Information set out in multiple NSW Police Fact Sheets stated that on 18 June 2018, the NSW Local Court enforced an Apprehended Domestic Violence Order (ADVO) that named Ms ‘B’ as ‘a person in need of protection’.[34] The ADVO required the Applicant must not:

    ·‘assault or threaten’ Ms ‘B’;

    ·‘stalk, harass or intimidate’ Ms ‘B’;

    ·‘intentionally or recklessly destroy or damage any property that belongs to or is in the possession of’ Ms ‘B’;

    ·‘approach or be with [Ms ‘B’] for at least 12 hours after drinking alcohol or taking illicit drugs’.[35]

    [34] For example, see Exhibits G-G9, 50; G-G21, 146-147.

    [35] Exhibit G-G21, 146-147.

22. NSW Police Fact Sheets provide reports of incidents between 2 February 2019 and 27 December 2020, in which the Applicant returns to his family home in an intoxicated state, Ms ‘B’ calls the NSW police, and the Applicant is arrested and subsequently convicted of the offence, ‘contravene prohibition/restriction in AVO (Domestic)’. The offences of ‘destroy or damage property’ relate to the Applicant taking and breaking Ms ‘B’s phone to prevent her from calling the police and removing cupboard doors in a bedroom; and the offences of ‘resist officer in the execution of duty’ relate to the Applicant refusing to get into the cage of a police vehicle. All of these offences were committed when the Applicant was heavily intoxicated; in his oral evidence to the Tribunal, the Applicant did not dispute the facts but also acknowledged there were some incidents that he was unable to remember due to the level of his intoxication.

23. In her statutory declaration on 15 March 2021, Ms ‘B’ explained the circumstances that led to the imposition of an AVO in relation to the Applicant:

    The AVO was put in place in 2018 by the police. I can’t remember the exact date. They put it in place because when [the Applicant] was drinking, nobody could sleep because he would move around the house and talk and make noise. His father told me to call the police. The police would come and take him away. But it kept happening. So they said that they would put in place an AVO that would mean that when he drinks he can’t come to the house within 12 hours. They asked me if I was ok with that, and I agreed to it.[36]

    [36] Exhibit G-G21, 142.

24. Ms ‘B’ described the Applicant’s behaviour while intoxicated as being very disturbing but not violent or threatening to other people:

    It is hard to explain what [the Applicant] is like when he is drunk. He is not like most people are when they drink socially with other people, happy and laughing. He drinks by himself, and he starts to behave in a way that makes him seem very mentally unwell. He starts to seem like he is praying. He talks to himself very loudly. He goes to different rooms, playing loud music. He seems to have hallucinations, as he starts talking aloud to his mother and his uncle, to people who have passed away. It is very upsetting to witness him like this: he seems crazy. He is not doing it to you, he does not act threatening to other people, he isn’t yelling at you or saying he will hurt you, but it is very upsetting to be around, and it makes you worry he will hurt himself.[37]

    [37] Exhibit G-G21, 142.

25. Ms ‘B’ further stated:

    [The Applicant] has never hit me or the children. He has never even threatened to beat me or the kids. This was never about him being violent.

    I called the police for their help, so that I could get help for [the Applicant]. I thought they would be able to help me get government services for him to help him with his mental health and with his alcohol addiction. Instead, they put in place the AVO, and they would take him into custody while he sobered up, but they did not help [the Applicant] with access to any health or addiction services.

    Once the AVO was in place, every time I called the police for help when [the Applicant] was drunk, they would charge him with breach of the AVO. This was only because he was drunk at my place, not because he had hit me or the children.

    When he went to court, I would write to the court begging them to help [the Applicant] with his addiction to alcohol. Instead they have put him in prison.

    I am planning to get legal advice about how to have the AVO lifted, as it is not working in the way it is intended. I just wanted help to get [the Applicant] to stop drinking, I wasn’t afraid of him, and he was never violent to me or the children.[38]

    [38] Exhibit G-G21, 143.

26. Ms ‘B’ provided credible, articulate and honest oral evidence at the Tribunal hearing. She explained that when she arrived in Australia, she was told to call the police if she needed help. She therefore believed that when she called the police, they would assist the Applicant to get help for his alcohol addiction. She said she simply wanted the Applicant to stop drinking alcohol and his breaches of the AVO, imprisonment and current detention due to the cancellation of his visa was never the outcome she imagined. Ms ‘B’ acknowledged that her own trauma associated with alcohol during the period she was kidnapped by rebels in the DRC meant the Applicant’s alcohol consumption and behaviour while intoxicated was a ‘trigger’ for her. 

27. Ms ‘B’ explained that she and members of the Applicant’s family had attempted to help the Applicant but his addiction to alcohol was uncontrolled during 2019–2020. She said the Applicant stopped working and, when intoxicated, would deny he had a problem with alcohol and refuse to take the prescribed medication because it made him feel unwell.

28. Ms ‘B’ said she pleaded with the police and the courts to help the Applicant with his addiction to alcohol. I note a letter Ms ‘B’ wrote to the NSW Local Court on 11 February 2019:

    SUBJECT: REQUEST TO THE JUDGE TO HELP MY HUSBAND AND NOT TO PUNISH HIM

    Your Honour,

    I am writing this letter to request you to help my husband and not to punish him because he is a great Dad to our two beautiful sons.

    My husband made a lot of mistakes in the past … He is a good and caring person, the only problem he has is alcohol…

    Please, I am requesting you to send him to rehabilitation centre where he will be able to get help physical and mental.[39] [emphasis in original]

    [39] Exhibit R1-TB2, 63.

29. The attempts of the Applicant’s family to get him help for his alcohol addiction is also set out in the sentencing remarks of the Magistrate in the NSW Local Court on 16 November 2020. Relevantly, his Honour acknowledged the ‘desperate’ pleas of the Applicant’s family members (namely, his wife, father and uncle) to help him access detox/ residential rehabilitation.[40] The discussion at sentencing included the Applicant’s history of ‘very serious alcohol addiction’ and various parties calling rehab facilities but ‘no immediate beds [were] available’ and there were minimum ‘wait times’ of three weeks.[41]  The Magistrate decided to sentence the Applicant to an ICO on the condition that he ‘accept supervision’ and ‘also accept rehab and treatment as soon as it’s available’.[42]

    [40] Exhibit G-G8, 46.

    [41] Exhibit G-G8, 44.

    [42] Exhibit G-G8, 47.

30. The severity of the Applicant’s convictions from 15 February 2019 to 11 June 2021 is reflected in the sentences imposed by the Courts. Relevantly, the sentences imposed by the NSW Courts on the Applicant were community corrections orders until 16 November 2020, when he was sentenced to an ICO of 12 months.

    The Applicant’s time in prison and immigration detention

31. The Applicant was incarcerated in prison from 27 December 2020 to 22 November 2021. He has subsequently been detained at Villawood Immigration Detention Centre.

32. Case note report documents summonsed from the NSW Department of Corrective Services show that the Applicant undertook employment, spoke regularly to his wife, presented at casework interviews ‘polite, neat and tidy’, and had ‘no offences’ while in custody.[43]

    [43] Exhibit R1-TB5, 286-297.

33. An ‘Incident Detail Report’ from the Department referred to an incident at Villawood Immigration Detention Centre on 15 May 2022 and recorded the Applicant displayed ‘abusive and aggressive behaviour’ towards Serco officers and was subsequently restrained.[44] The Applicant disputed the facts in the report at the Tribunal hearing. He said he was seeking assistance from officers and became frustrated after waiting for 40 minutes, but agreed that he was forcibly restrained by officers at the detention centre.

    Primary consideration 1: Protection of the Australian community from criminal or other serious conduct

    [44] Exhibit R1-TB6, 333-340.

1. Paragraph 8.1 of Direction No. 90 outlines the Government’s commitment to protecting the Australian community ‘from harm as a result of criminal activity or other serious conduct by non-citizens’ and requires that I give consideration to:

   (a)the nature and seriousness of the Applicant’s conduct to date; and

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

   The nature and seriousness of the Applicant’s conduct to date

2. Paragraph 8.1.1 requires that I consider the nature and seriousness of the Applicant’s ‘criminal offending or other conduct to date’.

3. The Applicant’s criminal history is set out above in paragraphs 47–63. Having regard to the relevant factors in subparagraph 8.1.1(1) of Direction No. 90, I make the following findings about the nature and seriousness of the Applicant’s conduct to date:

   ·The Applicant’s conviction for ‘recklessly cause serious injury’ on 1 September 2016 is a conviction for a ‘violent’ crime, which is ‘viewed very seriously by the Australian Government and the Australian community’.

   ·Consistent with the definition of ‘family violence’ in subparagraph 4(1) of Direction No. 90, the Applicant’s conviction for ‘recklessly cause serious injury’ on 1 September 2016 was an act of ‘family violence’, which ‘regardless of the sentence imposed’ is ‘viewed very seriously by the Australian Government and the Australian community’. I am satisfied that the victim of this injury, the Applicant’s adopted brother, is a member of his family – particularly noting the decision by the Full Federal Court of Australia in Deng v Minister for Immigration, Citizenship, Mirant Services and Multicultural Affairs that ‘the expression “member of a person’s family” … should not be narrowly construed’.[45]

   ·The Applicant has committed offences against government officials (the police) in the performance of their duties and these offences are considered ‘serious’.

   ·The relative seriousness of the Applicant’s offending is reflected in the sentences imposed by the Courts. The Applicant received community correction orders for his convictions in 2016 and 2019–2020 until his sentence on 16 November 2020 to an ICO of 12 months imprisonment to be served in the community. I am satisfied the sentences imposed by the Courts recognised the Applicant’s offending related to his alcohol addiction and his convictions for ‘contravene prohibition/restriction in AVO (Domestic)’ did not involve any physical violence. I therefore place less weight on this factor.

   ·The Applicant’s criminal history shows an increase in the frequency of his offending in 2019–2020, which related to his alcohol addiction.

   ·The Applicant’s conduct while in prison was reported as positive and he participated in employment opportunities. Although there is a record about an incident in relation to the Applicant’s conduct in immigration detention, I place limited weight on this event because it is a single incident, and the recorded facts are both disputed and inconsistent with other facts about the Applicant’s history.

   [45] [2022] FCAFC 115, [124].

4. Based on the evidence, I am satisfied that the nature and seriousness of the Applicant’s criminal offending and other conduct to date weighs against exercising the discretion to revoke the cancellation of his visa.

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

5. At subparagraph 8.1.2(1) of Direction No. 90, the Minister states the view ‘that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases’ and ‘some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable’.

6. Subparagraph 8.1.2(2) of Direction No. 90 sets out that, in assessing the risk that may be posed by the Applicant to the Australian community, I must have regard to, cumulatively:

   ·the nature of the harm to individuals or the Australian community if he engages in further criminal or serious conduct; and

   ·the likelihood of him engaging in further criminal or serious conduct, taking into account:

   oinformation and evidence on the risk of him re-offending, and

   oevidence of rehabilitation ‘at this time’, giving weight to time spent in the community since his most recent offence.

7. As set out in paragraphs 47–63, the Applicant’s criminal history shows all of his offending (except his driving offence in 2018) is related to his alcohol addiction. The Applicant has a single conviction for a violent offence against his adopted brother, Mr ‘A’, in 2016 while he was intoxicated. However, most of his convictions in the period from 15 February 2019 to 11 June 2021 (which related to his behaviour between February 2019 and December 2020) are for the offence, ‘contravene prohibition/restriction in AVO (Domestic)’, when he went to his home with Ms ‘B’ less than 12 hours after drinking alcohol. Weighing this evidence, I am satisfied that if the Applicant were to engage in further criminal or serious conduct, the nature of the harm to individuals or the Australian community is serious and not acceptable. However, I also place significant weight on the evidence of Ms ‘B’ set out at paragraphs 57–58 that, while the Applicant’s behaviour when intoxicated is very disturbing, he has never been physically violent or threatening towards her, their children or other people, and she was not afraid of him.

8. I now consider the likelihood of the Applicant engaging in further criminal or serious conduct.

9. I have had regard to the Magistrate’s sentencing remarks in the NSW Local Court on 16 November 2020, which outlines the attempts of the Court, the police and the Applicant’s family to find the Applicant a residential rehabilitation place to address his alcohol addiction. Relevant to this process, a Sentencing assessment report dated 5 November 2020 completed by Corrective Services NSW outlined the Applicant’s family and social circumstances, education and employment, and factors related to his offending. This report noted the Applicant’s alcohol consumption ‘underpins’ his offending, he becomes ‘argumentative and unco-operative when intoxicated’, and his family report that there are ‘no problems with his behaviour towards them’ when he is sober.[46] The Sentencing assessment report stated the Applicant was referred to community health services in July 2020 and August 2020, and he is ‘willing to attend a residential rehabilitation facility to address his alcohol dependency’ in November 2020 but appeared ‘to lack the motivation to follow through’.[47] This report assessed the Applicant ‘at a Medium risk of re-offending according to the Level of Service Inventory – Revised (LSI-R)’.[48]

   [46] Exhibit R1-TB2, 97.

   [47] Exhibit R1-TB2, 98.

   [48] Exhibit R1-TB2, 98.

10. I am satisfied the likelihood of the Applicant reoffending is directed related to his capacity to effectively address his alcohol addiction. Based on the evidence before the Tribunal, I also make the following findings regarding the history of the Applicant’s alcohol addiction and his criminal convictions.

11. First, I am satisfied the Applicant made attempts to address his alcohol addiction from 2016 to 2020 (including counselling and trialling oral medications and an implant) that were not successful. I also find the Applicant and his family tried to get him admitted to a residential rehabilitation facility after he was sentenced to the ICO on 16 November 2020. In this regard, I accept and rely on the statement of Ms ‘B’ dated 15 March 2021:

    [The Applicant] was trying to get into a residential rehabilitation facility. To get into rehab, you have to call regularly for a period of time to demonstrate your commitment and while you wait for a space. For the whole of November and December 2020 he was calling them for this purpose. He had an appointment to speak to the rehab officer on 24 December 2020. The officer wasn’t feeling well and they postponed. And then he was arrested on 27 December 2020.[49]

    [49] Exhibit G-G21, 143.

12. Second, I am satisfied the evidence shows the Applicant had a limited understanding about the relationship between his past trauma and mental health and his alcohol addiction until after he was imprisoned in December 2020. I further accept the Applicant now understands the relationship between his mental health and alcohol addiction. In particular, I have regard to the Applicant’s statement in his Request for Revocation of a Mandatory Visa Cancellation Under S501(3A) form:

    I have been using alcohol to manage my emotional distress because I have not been able to access rehabilitation and mental health resources due to long queues…

    I continue to make efforts to receive rehabilitation in order to reunite with my wife and children…

    My wife is caring for our three small children (and my stepson) by herself. She needs me to be healed and with [sic] and I believe that is possible.[50]

    [50] Exhibit G-G19, 82.

13. The Applicant also wrote in his Personal Circumstances Form:

    Alcohol was perceived to be my problem. I am now looking to understand and manage the impact of my past traumas of my behaviour. I want to be with my family and for them to be safe with me. I have found that I could cope without alcohol in prison and I have had time to reflect on my behaviour and the impact on my family. I am looking to get strong mental health guidance.[51]

    [51] Exhibit G-G20, 94.

14. I note the relationship between childhood trauma and alcohol is not limited to the Applicant: these circumstances are also supported in research papers filed by his legal representative that show the consumption of alcohol in refugee communities is attributable, at least in part, due to experiences of past trauma.[52]

    [52] See Exhibits A2-P, A2-Q and A2-R. Also see G-G21, 133-140 for research about consequences of childhood trauma.

15. Related to the Applicant’s understanding of his mental health, I am satisfied the evidence before the Tribunal shows there is social stigma associated with mental health in the Congolese community (both in Australia and the DRC). The Applicant stated in his Personal Circumstances Form:

    There is a strong stigma around mental health in my community. This has been a barrier to my seeking help. I now realise that, unless I do something to contain my depression and distress, I will bring suffering to many people who care for me.[53]

    [53] Exhibit G-G20, 96.

16. This stigma was also outlined in the written and oral evidence of Ms ‘B’, who opined that there is ‘a lot of stigma’ associated with mental health in the Congolese community and the Applicant ‘really struggled with how people would see him’.[54] This is further set out in the research papers on psychology and mental health in the DRC filed by the Applicant’s legal representative.[55]

    [54] Exhibit G-G21, 143.

    [55] See Exhibits A1-H and A1-I.

17. Third, I find the Applicant’s capacity to access community health support for his alcohol addiction and mental health appears to have been affected by his location in a regional area on the border of NSW and Victoria. This is shown by the evidence of Dr ‘KT’ at paragraph 31 that she was unable to refer the Applicant to a drug and alcohol treatment program in Sydney because she practiced in Victoria.

18. Difficulties with the Applicant accessing support for alcohol addiction and mental health is also set out in the evidence of Dr ‘PV’, a retired medical practitioner who has known and supported both the Applicant and Ms ‘B’ since their arrival in Australia. Dr ‘PV’ provided a statutory declaration dated 8 March 2021 and gave oral evidence at the Tribunal hearing. Dr ‘PV’ opined the Applicant had ‘prolonged delay in receiving help’ due to ‘decreased funding and availability of mental health and rehabilitation resources in rural communities’.[56] She also told the Tribunal that the Applicant had ‘dual diagnoses’ of alcohol addiction and post-traumatic stress disorder, and health services in regional areas tend to deal with only one (rather than both) of these conditions.[57]

    [56] Exhibit G-G21, 149.

    [57] Oral evidence of Dr ‘PV’, 20 October 2022.

19. I note these views about access to treatment for alcohol abuse in Australia are supported in research papers filed by the Applicant’s legal representative.[58]

    [58] See Exhibits A2-M, A2-N and A2-O.

20. Finally, I have considered the reasons underlying the decision of the Applicant’s family (in particular, his wife and father) – and the police and the Courts – to deal with the Applicant’s alcohol addiction through the imposition of an ADVO. I accept that Ms ‘B’ understandably finds the Applicant’s consumption of alcohol ‘a trigger’ for her due to her own trauma from the period she was held captive in the DRC. I also accept that Ms ‘B’ believed the police and the Courts would help her husband access rehabilitation for his alcohol addiction.

21. This circumstance resulted in the following cascade of events:

    ·the Applicant being repeatedly convicted for the offence, ‘contravene prohibition/restriction in AVO (Domestic)’;

    ·the Courts sentencing the Applicant to community corrections orders and, ultimately, an ICO of 12 months imprisonment to be served in the community;

    ·the Applicant breaching the ICO conditions; and

    ·the cancellation of the Applicant’s visa.

    In hindsight, it is apparent that addressing the Applicant’s alcohol addiction, which is a medical condition, through legal mechanisms has had devastating consequences for him.

22. The evidence of Ms ‘B’ and the Applicant shows they and members of the Applicant’s family are shocked and distressed by this situation. Ms ‘B’ gave emotional and sincere evidence at the Tribunal hearing about these circumstances, and also wrote in her statutory declaration on 12 October 2022:

    I truly feel like I have been let down by the Australian government, by the police and the court system.

    I called the police to get help for my husband. I was told when I arrived in Australia, that the police were there to help you. I thought I was doing the right thing and supporting him. I didn’t know any other resources to get help from, and I thought they would know who could help him, or they could force him to go to rehab. I turned to a group that I understood had integrity and had power in the community.

    Instead, they created a situation where he was trapped. He has alcoholism. He didn’t choose ot [sic] have alcoholism. He has an addiction. The AVO says he can’t come home when he has been drinking, but his addiction meant that he kept drinking. Where was he meant to go at night time to sleep. I have suffered terrible trauma around people drinking in my life, and I thought this was a way I could get help for both myself and [the Applicant]. I feel so let down…

    I believed I was raising my voice to get help for my husband, and the outcome was totally different from what I was expecting.[59] 

    [59] Exhibit A2-K, 2.

23. The Applicant also wrote in his Personal Circumstances Form that his family were seeking help for him and it ‘has turned into something else – scary and confusing’.[60]

    [60] Exhibit G-G20, 93.

    The Applicant’s rehabilitation at this time

24. The Applicant has engaged with regular counselling during his detention in Villawood Immigration Detention Centre. He wrote in his statutory declaration dated 11 May 2022:

    I have been doing counselling the entire time I have been in Villawood. I talk to my current counselling [sic] every Monday at 5pm. Her name is [Ms ‘KAT’] and she is helping me to process my life everyday and the things I have been through, and we talk about what she needs from me and what I need from her. I feel like she is helping me.[61]

    [61] Exhibit G-G24, 246.

25. I also have regard to a report, ‘Summary of Psychological Treatment for [the Applicant]’ by Ms ‘KAT’ (psychologist) dated 28 September 2021, which stated the Applicant had been diagnosed with ‘clinically significant’ depression, anxiety and post-traumatic stress disorder, and had ‘engaged well’ with treatment.[62]

    [62] Exhibit G-G24, 268-270.

26. The Applicant and Ms ‘B’ have outlined a clear plan to support him if he is released into the community. This includes that the Applicant will live with his father (15 minutes’ drive from Ms ‘B’ and their children) until he is allocated a place at ONE80TC, a residential rehabilitation facility in Sydney. The Applicant is being assisted in this process by Great Lakes Agency for Peace and Development (GLAPD), a not-for-profit organisation that assists migrants and refugees from Africa. A letter by the Executive Manager, GLAPD dated 5 July 2022 outlined their support for the Applicant:

    As part of our migrant services program GLAPD has a pre and post prison engagement project that supports people at risk of crime to engage in community activities, employment and/or education, so they are averted from risks of committing crimes and be busy or engage with groups that are safe to be with …

    We have been in touch with [the Applicant] several times at Villawood Immigration Detention Centre by phone and we have planned together with him to do at least the following:

    Supports for [the Applicant]

    -    Rehabilitation for alcohol addiction, by creating a referral case to our partners who support clients in drug and alcohol addiction.

    -    Supports for mental health (due to traumatic events that happened in his home country and the death of his mother)

    -    Supports for [the Applicant] to reintegrate into the community through finding him employment and linking [him] to good, behaved activity groups

    -    Support to ensure [the Applicant] does not reoffend (which is linked to his alcohol addiction) ...[63]

    [63] Exhibit A1-C, 4-5.

27. Ms ‘B’ informed the Tribunal that, as it is not possible for the Applicant to be placed on the waitlist for ONE80TC until he is residing in the community, she and the Applicant’s family have agreed he will live at his father’s house until he can attend the residential rehabilitation facility.

28. The evidence before the Tribunal, including statutory declarations from members of the Applicant’s family and his friends, shows the Applicant is highly regarded as a person and has substantial support to deal with his alcohol addiction. It is also clear the Applicant understands that his future relies on addressing his alcohol addiction through rehabilitation: as he has stated, ‘[i]f I keep drinking, I will lose everything … my wife, my kids, my family.’[64]

    [64] Exhibit G-G21, 127.

29. Considering both the nature and seriousness of the Applicant’s conduct to date and the risk to the Australian community should he commit further offences or engage in other serious conduct, I am satisfied on balance that the primary consideration of protection of the Australian community from criminal or other serious conduct weighs against exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa. However, I place less weight on this consideration based on the evidence about the nature of the Applicant’s offending and his positive prospects of rehabilitation.

    Primary consideration 2 – family violence committed by the applicant

30. Subparagraph 4(1) of Direction No. 90 states family violence ‘means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful’. Examples of behaviour that may constitute family violence relevantly include ‘an assault’ or ‘intentionally damaging or destroying property’.

31. Direction No. 90, at subparagraph 8.2(1), states ‘the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of…remaining in Australia’. Subparagraph 8.2(3) outlines the factors I must consider in relation to the seriousness of the family violence engaged in by the Applicant. These factors include:

    ·the frequency of the Applicant’s behaviour and whether there is any trend of increasing seriousness;

    ·the cumulative effect of repeated acts of family violence; and

    ·rehabilitation achieved at the time of my decision since the Applicant’s last known act of family violence, including:

    othe extent to which he accepts responsibility for his conduct;

    othe extent to which he understands the impact of his behaviour on his partner and their children; and

    oefforts to address factors which contributed to his conduct. 

1. The Applicant’s conviction for ‘recklessly cause serious injury’ on 1 September 2016 and the relevant facts are described in paragraphs 47, 50–52 and 69. I am satisfied this offence is consistent with the definition of family violence in subparagraph 4(1) of Direction No. 90. While I find this offence is very serious, I note the Applicant accepted responsibility for his conduct, pled guilty and subsequently attempted to address his alcohol consumption by attending counselling. Relevantly, I find this violent behaviour of the Applicant has not been repeated.

2. I have also considered submissions made by the Respondent’s legal representative that the Applicant’s offences of ‘contravene prohibition/restriction in AVO (Domestic)’ comprise family violence because Ms ‘B’ feared the Applicant’s behaviour.[65] I have had regard to and place significant weight on Ms ‘B’’s comprehensive statutory declarations and her credible oral evidence to the Tribunal. I accept her evidence that the Applicant has never hit or harmed her or their children, and her acknowledgement that it was distressing to observe the Applicant’s behaviour when he was intoxicated but she was not afraid of him. I also accept her honest acknowledgement about the Applicant’s consumption of alcohol being a ‘trigger’ because of her own past trauma. In these particular circumstances, I do not find the Applicant’s convictions for ‘contravene prohibition/restriction in AVO (Domestic)’ comprise family violence.

   [65] Respondent’s Statement of Facts, Issues and Contentions, 7 October 2022, 30.

3. In relation to the Applicant’s convictions for ‘destroy or damage property’, I am satisfied that the evidence shows that the Applicant damaged property belonging to his wife, Ms ‘B’, (namely, her mobile phone and cupboard doors). I find these offences comprise family violence as defined in subparagraph 4(1) of Direction No. 90.

4. I am satisfied that the primary consideration of family violence committed by the Applicant weighs against exercising the discretion to revoke the cancellation of the Applicant’s visa.

   Primary consideration 3: best interests of minor children in Australia affected by the decision

5. Subparagraph 8.3(4) of Direction No. 90 lists the factors I must consider in considering whether cancellation of the Applicant’s visa is in the best interests of a minor child (under 18 years old at the time of the refusal) affected by the decision. The relevant factors include:

   ·the nature and duration of the relationship between the child and the Applicant (placing less weight where the relationship is non-parental, there is no existing relationship or long periods of absence, or limited ‘meaningful contact’);

   ·the extent to which the Applicant is likely to play a positive parental role in the future taking into account the length of time until the child turns 18 years old;

   ·the impact of the Applicant’s prior and future conduct, and whether that will have a negative impact on the child;

   ·the likely effect any separation would have on the child; and

   ·whether there are other persons who already fulfil a parental role for the child.

6. The Applicant has four minor children aged 11 years, three (almost four) years and twins aged two years. I have set out evidence about each of these children at paragraphs 26 and 39–46.

7. Based on the evidence, I am satisfied the Applicant – despite his alcohol addiction and time in prison and detention – has played a positive, engaged role as a father to his four children. I accept that he has attempted (as much as possible) to maintain his relationship with his children by phone/video contact with his children while in prison and immigration detention. I am further satisfied the Applicant intends to continue to have a positive parental role in his children’s future and, given the very young age of his children, I am satisfied this will be for an long period of time.

8. The Applicant’s wife, Ms ‘B’, is currently caring for and raising their four children on her own: this includes their almost four-year-old son, ‘D’, who was diagnosed with Autism Spectrum Disorder and Global Development Delay in February 2022 and two-year-old twins.

9. I am satisfied that the Applicant will be permanently separated from his children and Ms ‘B’ if he is removed from Australia. Ms ‘B’ wrote in her statutory declaration on 15 March 2021:

   We cannot move to the DRC. How would I even go back there? I had such a [sic] traumatic experiences there, when I was kidnapped. I don’t even like to think about it. That’s where everything bad happened to me. It is impossible. It’s not a safe place even now. There is still war between different tribes. It is never-ending.

   It would be devastating for the children. They love him so much. I thought we were in a safe place now, and for them to lose their dad now? I can’t even think about it.[66]

   [66] Exhibit G-G21, 144.

10. Weighing all the evidence, I am satisfied that the cancellation of the Applicant’s visa would have a severe, detrimental and permanent impact on his four children.

11. The Applicant also listed four other minor children (aged between two years old and 11 years old) in his life in his Personal Circumstances Form. He described these children as his ‘cousins’, they call him ‘uncle’ and he is an ‘important person in their lives’.[67]  He wrote about laughing a lot together and playing soccer with the children. I accept these children are under the age of 18 years and would be negatively affected if the Applicant is removed from Australia. However, the evidence before the Tribunal shows these children live with their parents and therefore, in accordance with Direction No. 90, I place less weight on these relationships as the Applicant’s relationship to these children is non-parental and the children have other persons who fulfil a parental role.

    [67] Exhibit G-G20, 91-92.

12. Considering all the evidence in relation to the factors set out in subparagraph 8.3(4) of Direction No. 90, I am satisfied the primary consideration of best interests of minor children in Australia affected by the decision weighs extremely strongly for exercising the discretion to revoke the cancellation of the Applicant’s visa.

    Primary consideration 4: expectations of the Australian community

13. Subparagraph 8.4(1) of Direction No. 90 provides:

    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia. 

14. In subparagraph 8.4(2) of Direction No. 90, the Minister states that non-revocation of the mandatory cancellation of a visa may be appropriate because character concerns or offences are such that the Australian community would expect the person should not continue to hold a visa; and the Australian community expects the Australian government can and should cancel the visas of non-citizens if they raise serious character concerns through conduct including acts of family violence and/or serious crimes of a violent nature. Further, expectations of the Australian community ‘apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community’: subparagraph 8.4(3) of Direction No. 90.

15. Subparagraph 8.4(4) of Direction No. 90 states:

    This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.

16. Considering the requirement of paragraph 8.4 and the principles set out in paragraph 5.2 of Direction No. 90, I am satisfied the Australian community expects a non-citizen will obey Australian laws, not cause harm to individuals or the Australian community, and the Australian government should cancel the visa of a non-citizen if they commit serious crimes.

17. I have set out the nature and seriousness of the Applicant’s criminal history and the risk to the Australian community if he were to commit further offences in paragraphs 67–95.

18. Based on the evidence and having regard to the principles and requirements in paragraph 8.4 of Direction No. 90, I find the Australian community would have a low tolerance of the Applicant’s offending and would expect the Government to cancel his visa. I am satisfied the primary consideration of expectations of the Australian community weighs against exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa. However, I place less weight on this consideration based on the evidence about the nature of the Applicant’s offending and his positive prospects of rehabilitation.

    Other considerations in direction no. 90

19. Section 9 of Direction No. 90 lists the other considerations that I ‘must also take into account’ in deciding whether to revoke the mandatory cancellation of a visa, which relevantly include:

    ·international non-refoulement obligations;

    ·the extent of impediments if the Applicant is removed from Australia;

    ·impact on victims; and

    ·links to the Australian community, namely the strength, nature and duration of the Applicant’s ties to Australia.

20. I find there is no evidence before the Tribunal that the consideration of impact on Australian business interests are relevant to these proceedings.

    Other Consideration 1: International non-refoulement obligations

21. Subparagraph 9.1(1) of Direction No. 90 articulates Australia’s non-refoulement obligations in accordance with international human rights treaties[68] and, in particular, the ‘obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm’.

    [68] 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and the International Covenant on Civil and Political Rights and its Second Optional Protocol.

22. Direction No. 90, at subparagraphs 9.1(2) to (6), further states:

    (2)In making a decision under section 501…, decision-makers should carefully weigh any non-refoulement obligations against the seriousness of the non-citizen’s criminal offending or other serious conduct. In doing so, decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C of the Act provide that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

    (3)However, that does not mean the existence of a non-refoulement obligation precludes refusal…of a non-citizen’s visa… This is because such a decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists … Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen applies for a protection visa, the non-citizen would not be liable to be removed while their valid visa application is being determined.

    (4)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation … of their visa under s501 of the Act, in a request to revoke under section 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).

    (5)International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.

    (6)It may not be possible at the section 501/section 501CA stage to consider non­ refoulement issues in the same level of detail as those types of issues are considered in a protection visa application…

23. I am satisfied the Applicant has raised a claim to international non-refoulement obligations in his evidence and submissions to the Tribunal. In particular, the Applicant has made statements that he ‘will be killed’ if he is removed to the DRC and he has ‘no links to any other country’.[69] He has also provided oral evidence that his citizenship is not recognised by authorities in the DRC because there is a view that all members of the Banyamulenge ethnic group have been killed by rebels.

    [69] Exhibits G-G21, 97 and 127.

24. Ms ‘B’, in her statutory declaration dated 15 March 2021, also wrote:

    [The Applicant] can’t go to the DRC ... If he returns he will be killed. We are from a very minority group in the Congo, they don’t accept us. They say we are Rwandan. But we go to Rwandan [sic], they say we are Congolese. He will die. And with his problems with alcohol and mental health issues, he will be even more vulnerable there.[70]

    [70] Exhibit G-G21, 144.

25. I accept the personal and family history of the Applicant set out in paragraphs 19–21 and consider that it is this history that led to him being granted a Refugee (Subclass 200) visa: this visa is for ‘people who the United Nations High Commissioner for Refugees … has referred to Australia for resettlement’.[71]

    [71] See Refugee visas (offshore) (homeaffairs.gov.au).

26. I have also considered and had regard to the following reports and information about the DRC filed by the Applicant’s legal representative:

    ·The ‘DRC 2021 Human Rights Report’ by the United States Department of State that set out:

    othe DRC continues to experience extensive conflict, violence and human rights abuses; and

    ofighting in the east of the country and conflict among armed groups ‘caused significant population displacement and human rights violations especially in Ituri and North Kivu Provinces’.[72]

    ·The ‘DRC Events of 2021’ report by Human Rights Watch that stated:

    In eastern Congo, fighters from armed groups, and in some cases government security forces, carried out massacres, kidnappings, sexual violence, recruitment of children, and other attacks on civilians with near total impunity…

    Attacks on Civilians by Armed Groups and Government Forces

    Around [sic] were active in eastern Congo’s Ituri, North Kivu, South Kivu… provinces. Many of their commanders have been implicated in war crimes, including massacres, sexual violence against women and girls, force recruitment of children, and pillage…

    Tension remained high in South Kivu’s highlands, with fighting involving several armed groups, some back by neighbouring countries.[73] [emphasis in original]

    ·The Australian Government DRC smartraveller.gov.au website (updated 29 July 2022), which referred to widespread armed conflict that has caused civilian displacement and deaths, with a ‘more serious threat in eastern and northern provinces’ including South Kivu where ‘fighting has displaced hundreds of thousands of people’.[74]

    [72] Exhibit A1-E, 55.

    [73] Exhibit A1-F, 107, 109.

    [74] Exhibit A1-G, 118.

27. I am satisfied the Applicant was born in Fizi, which is located in South Kivu province on the eastern side of the DRC where much of the conflict and human rights abuses have occurred.

28. The Minister submitted that the Tribunal ‘should defer consideration of the Applicant’s non-refoulement claims on the basis that it is open for him to apply for a protection visa.’[75] While I accept it would be open for the Applicant to make an application for a protection visa, it is my view that paragraph 9.1 of Direction No. 90 requires me to consider Australia’s non-refoulement obligations to the Applicant in accordance with international human rights treaties. I further note the Minister’s legal representative did not challenge or dispute any of the country information on the DRC filed by the Applicant’s legal representative, and did not file any additional country information on the DRC.

    [75] Respondent’s Statement of Facts, Issues and Contentions, 7 October 2022, 60.

29. The obligations of the Australian Government under international law have been articulated by the High Court of Australia in Minister of State for Immigration and Ethnic Affairs v Teoh, in which Mason CJ and Deane J stated:

    ...ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act, particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights ... Rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention.[76] [emphasis added]

    [76] [1995] HCA 20; 183 CLR 273 at [291].

30. I consider the evidence indicates the Applicant would be at risk of harm if he is deported to the DRC and this, in turn, would engage Australia’s non-refoulement obligations in accordance with international human rights treaties.

31. Weighing all the evidence, I am satisfied the consideration of international non-refoulement obligations weighs for exercising the discretion to revoke the cancellation of the Applicant’s visa.

    Other Consideration 2: Extent of impediments if the Applicant is removed from Australia

32. The extent of impediments if the Applicant is removed from Australia relates to his capacity to reside in, establish himself and maintain ‘basic living standards’ in his ‘home country’ of the DRC. Pursuant to subparagraph 9.2(1) of Direction No. 90, I must consider his ‘age and health’, whether there are any ‘substantial language or cultural barriers’, and any ‘social, medical and/or economic support’ available to him in the DRC.

33. The Applicant is 32 years old: the evidence before the Tribunal is that he has an alcohol addiction and has been diagnosed with depression, anxiety and post-traumatic stress disorder.

34. The Applicant’s legal representative filed the ‘Human Development Report 2021/2022’, which sets out the Human Development Index and its components. Relevantly, Australia ranked fifth with a life expectancy at birth of 84.5 years in 2021 and Gross National Income (GNI) per capita (2017 PPP$) of 49,238, while the DRC ranked 179 (from 191 countries) with a life expectancy at birth of 59.2 years and GNI per capita (2017 PPP$) of 1,076.[77]

    [77] Exhibit A1-D.

35. In relation to health and medical facilities in the DRC, I note the Australian Government smartraveller.gov.au website stated ‘medical facilities are basic in Kinshasa and inadequate outside the capital’.[78] Other documents filed by the Applicant’s legal representative also indicate there would be very limited mental health support available to the Applicant in the DRC. In particular, I note an article on psychology in the DRC in the ‘American Psychological Association’ dated December 2014 that stated there were only six mental health hospitals in the entire country and a severe lack of trained mental health personnel in the country.[79]

    [78] Exhibit A1-G, 123.

    [79] Exhibit A1-H.

36. Dr ‘KT’ also described the impact of deporting the Applicant in her report dated 19 March 2021:

    If [the Applicant] were to be deported, I fear he would have even less support than what we have been able to achieve in Australia and his health would subsequently deteriorate. Particularly as this would mean tearing him from his family, including his newly born twins, which would exacerbate his alcohol dependence.[80]

    [80] Exhibit G-G21, 131.

1. In relation to language, I note the Applicant gave oral evidence at the Tribunal hearing in English but, as his father gave oral evidence with the assistance of an interpreter of the Kirundi language, I consider that language would not a barrier to him living in the DRC. However, given the extensive period since the Applicant was in the DRC (approximately 27 years), he would likely experience cultural difficulties.

2. In his statutory declaration dated 11 May 2022, the Applicant wrote that, if he is deported to the DRC:

   I have no where to go. I can’t go to back [sic] the Congo. This is a place where my family was killed. I would be killed. My tribe of Banyamulenge people are targeted and murdered. This is the place I have been running from since I was little. This is why the Australian government gave me a refugee visa.

   I don’t know where I would go. I don’t know where I could go to survive. I don’t know where the Australian government would send me – would they send me to Congo. Rwanda or Kenya? It doesn’t make any sense. All of my family is in Australia. My wife and kids are now Australian citizens. I don’t want them to even think about being forced to go to a place where they would have to risk their lives.

   I also worry about my wife and the children not having me as their father around. If my wife is left to raise the family be herself, she will be ostracised by the Congolese community as she will be blamed for me being removed from Australia…

   I can’t comprehend this situation where kids are separated from their father. My happiness comes from my family. Without my family, there is no happiness.[81]

   [81] Exhibit G-G24, 247.

3. The Applicant’s wife, Ms ‘B’, gave evidence to the Tribunal that the Applicant would not survive and there are no jobs in the DRC. She said that, apart from worrying about him being killed, his deportation would place an additional strain on her financially because she would need to send him money.

4. Based on the evidence, I am satisfied the Applicant left the DRC when he was five years old and knows no one in the DRC. I am further satisfied that there would be no (or extremely limited) social, medical or economic support available to him in the DRC.

5. On balance, I am satisfied the consideration of the extent of impediments if the Applicant is removed from Australia weighs very strongly in favour of exercising the discretion to revoke the cancellation of his visa.

   Other Consideration 3: The impact on the victim

6. Subparagraph 9.3(1) of Direction No. 90 requires that I consider the impact of the section 501CA decision on members of the Australian community, including any victims of the applicant’s criminal behaviour.

7. The Respondent made submissions that the evidence of Ms ‘B’, ‘as a victim of domestic violence’, should be treated ‘with caution’ and there remains a:

   clear risk that the Applicant will cause further harm to [Ms ‘B’] if he is released into the Australian community, given his past treatment of her, and their apparently ongoing relationship and likely interactions about their mutual children.[82]

   [82] Respondent’s Statement of Facts, Issues and Contentions, 7 October 2022, 68.

8. I find these submissions are inconsistent with the evidence before the Tribunal and I therefore find this consideration has a neutral weighting in exercising the discretion to revoke the decision to cancel the Applicant’s visa.

   Other Consideration 4: Strength, nature and duration of ties to Australia

9. In considering the strength, nature and duration of the Applicant’s ties to Australia, subparagraphs 9.4.1(1) and (2) of Direction No. 90 stipulate that I must consider any impact of the decision on his ‘immediate family members’ in Australia and I must have regard to:

   ·how long the Applicant has resided in Australia, including whether he arrived as a young child, noting that:

   oless weight should be given where he began offending soon after arriving in Australia; and

   omore weight should be given to time he has spent contributing positively to the Australian community;

   ·the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

10. The Applicant has lived in Australia since he was 23 years old. Statutory declarations from his family and friends show he is well-regarded within the Congolese and Australian community. On his arrival in Australia, the Applicant moved to a regional town, studied English and obtained forklift and ‘big machine’ licences and a certificate III in carpentry, and participated in full-time employment on a casual basis until 2019. He has undertaken voluntary work within the community including assisting other refugees.

11. The Applicant has established strong and enduring family and social links with members of the Australian community including Australian citizens and people who have an indefinite right to stay in Australia. His wife, Ms ‘B’, and their four children are Australian citizens. His father, siblings and extended family members also have an indefinite right to remain in Australia.

12. The Applicant’s ties to Australia are inextricably linked to his wife, Ms ‘B’. Therefore, I have also considered and place weight on Ms ‘B’’s links to Australia and the impact on her if the Applicant is removed from Australia. I accept Ms ‘B’’s evidence that she and their children cannot return to the DRC, and her experiences of severe trauma in the DRC. Ms ‘B’ presented as a credible and remarkable person: despite her past experiences, she came to Australia, undertook study and is now employed full-time with the Red Cross helping to support other refugees arriving in Australia.

13. Ms ‘B’ provided detailed evidence about raising their four children as a single parent over the past almost-two years while the Applicant has been in prison and detained. In relation to their son, ‘D’, and the diagnosis of his disabilities, she stated on 2 May 2022:

    I started to notice that [‘D’] may have a condition around a year ago. [‘D’] has had some significant delays in his speech, he was flapping his hands, jumping constantly, not sleeping or eating. He is not appropriately toilet trained, and touches his faeces.

    I strongly felt like he was not meeting his developmental milestones. We had to wait a long time to get a paediatrician appointment, but he was diagnosed in February.

    Now that he has NDIS he is receiving speech therapy, behavioural therapy, and occupational therapy.

    It is still really difficult. It’s probably the worst thing that has happened to me for a long time. I feel like I’m losing [‘D’] and I don’t know what to do. I have 19 month year old twins to take care of, and my eldest [‘C’] is 10 years old. I work full-time. I don’t have any help at home, no one else to support or provide for us.

    [‘D’’s] health conditions mean that our circumstances without [the Applicant] are significantly harder. I need my husband at home to provide us both with support. [83]

    [83] Exhibit G-G24, 242.

14. While I accept that Ms ‘B’ receives some support from members of the Applicant’s extended family and some domestic assistance from ‘D’’s NDIS plan, nonetheless, she is a single parent who works full-time and has substantial childcare costs. In this regard, I find the Applicant’s support and assistance in raising their young children is critical to Ms ‘B’.

15. Finally, I have considered submissions made by the Applicant’s legal representative about the effect on Ms ‘B’ and the potential impact for women in the Congolese community if the Applicant’s visa is cancelled. I accept the evidence supports these submissions that:

    ·Ms ‘B’ would be ostracised in the Congolese community if the Applicant is deported because she would be blamed for the cancellation of his visa; and

    ·the cancellation of the Applicant’s visa may reduce the willingness of women in the refugee community reporting and getting assistance for family violence due to their distrust of government authorities from past experiences overseas, and fear of visa cancellation.

16. Based on the evidence, I am satisfied the other consideration of strength, nature and duration of ties to Australia weighs very strongly for exercising the discretion to revoke the decision to mandatorily cancel the Applicant’s visa.

    Conclusion

17. I am satisfied that:

    ·The first primary consideration (protection of the Australian community from criminal or other serious conduct) and the fourth primary consideration (expectations of the Australian community) weigh against exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa. However, I place less weight on these considerations for the reasons I set out at paragraphs 95 and 115.

    ·The second primary consideration (family violence committed by the Applicant) weighs against exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa.

    ·The third primary consideration (best interests of minor children in Australia affected by the decision) weighs extremely strongly for exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa.

18. In relation to the other considerations, I find:

    ·The first other consideration (international non-refoulement obligations) weighs for exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa.

    ·The second other consideration (extent of impediments to the Applicant if he is removed from Australia) and fourth other consideration (strength, nature and duration of ties to Australia) weigh extremely strongly for exercising the discretion to revoke the mandatory cancellation of his visa.

    ·The third other consideration (impact on the victim) has neutral weighting in relation to exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa.

19. Section 7 of Direction No. 90 states that primary considerations should generally be given greater weight than other considerations. However, I am satisfied this weighting should not apply to the Applicant in these particular circumstances because I place significant weight on:

    ·the primary consideration of best interests of minor children; and

    ·the other considerations of:

    ointernational non-refoulement obligations;

    othe extent of impediments to the Applicant if he is removed from Australia; and

    othe strength, duration and nature of the Applicant’s ties to his family who are Australian citizens, especially his wife and children.

20. Weighing all the relevant primary considerations and other considerations, I am satisfied that there is another reason to revoke the decision to cancel the Applicant’s visa.

21. For these reasons, the decision made by a delegate of the Minister on 9 August 2022 to not revoke the mandatory cancellation of the Applicant’s visa is set aside.

    decision

22. The decision under review is set aside and, in substitution, the cancellation of the Applicant’s visa is revoked under subsection 501CA(4) of the Act.

I certify that the preceding 155 (one hundred and fifty -five) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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

Associate

Dated: 2 November 2022

Dates of hearing:	19 and 20 October 2022
Solicitors for the Applicant:	Ms V Lenton
Solicitors for the Respondent:	Mr M Sheedy