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

VGJG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1045 (29 April 2021)
Division:GENERAL DIVISION
File Number(s): 2021/0651
Re:VGJG
APPLICANT

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

DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:29 April 2021
Place:Sydney

The correct and preferable decision is to affirm the reviewable decision made on 4 February 2021, being the decision of the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the cancellation of the applicant’s Skilled (Class SI) (Subclass 189) visa.
..........................[SGD]..............................................
The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether another reason why the visa cancellation should be revoked – Ministerial Direction No. 90 applied – nature and seriousness of offending conduct – risk of reoffending – protection of the Australian community – family violence committed by the non-citizen – best interests of minor children – expectations of the Australian community – strength, nature and duration of ties to Australia – international non-refoulement obligations – impediments to removal – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 501, 501CA
CASES
Ali v Minister for Home Affairs [2020] FCAFC 109
FYBR v Minister for Home Affairs [2019] FCAFC 185
SECONDARY MATERIALS
Department of Foreign Affairs and Trade, Kenya Travel Advice and Safety Information, 3 March 2021, Web Page < no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Human Rights Watch, Kenya: Court Upholds Archaic Anti-Homosexuality Laws Activists Plan to Appeal, 24 May 2019, Web Page < FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
29 April 2021
INTRODUCTION

This is an application for review by the Tribunal, made pursuant to s 500(1)(ba) of the Migration Act 1958 (Cth) (the Act), of a decision made by a delegate of the respondent dated 4 February 2021. By that decision, the delegate decided not to revoke, pursuant to s 501CA(4) of the Act, the mandatory cancellation of the applicant’s Skilled (Class SI) (Subclass 189) visa.
The applicant was notified of the delegate’s decision on 5 February 2021 and the application was made on the same day, within the statutory time limit under s 500(6B) of the Act.
The applicant is a citizen of Kenya, born in 1979. The applicant first entered Australia in 2015, aged 36, with his wife and 2 children.
In September 2015, the police visited the applicant’s residence due to an altercation between the applicant and his wife. It appears that the applicant had been consuming alcohol at the prior to the altercation, and that an Apprehended Violence Order (AVO) was taken out against the applicant.
In July 2017, in a verbal argument with his wife, the applicant, who was intoxicated at the time, threatened to kill his wife if she were to contact the police. Shortly after, an AVO was served on the applicant with one of the conditions being that he must not approach or be in the company of his wife for at least 12 hours after drinking alcohol or taking illicit drugs.
Later in July 2017, the applicant breached the AVO by returning to his residence intoxicated. In August 2017, the applicant crashed his car into a parked car while he was in an intoxicated state: he had blood alcohol concentration level of 0.186.
As a result, in March 2018, he was convicted of:
(a)Stalk/intimidate intend fear physical etc harm;
(b)Contravene prohibition/restriction in AVO; and
(c)Drive with high range PCA.
For these offences, he was relevantly given two 18-months good behaviour bonds. On appeal, the District Court relevantly confirmed those convictions and the imposition of the good behaviour bonds.
Between September 2017 and August 2019, the applicant was:
(d)found to be heavily intoxicated by the police on a significant number of occasions;
(e)indecently exposed himself in public, including at the Parramatta Train Station;
(f)caused fear to members of the public; and
(g)breached an AVO.
The applicant was convicted of ‘wilful and obscene exposure in/near public place/school’ in September 2018. In October 2019, he was convicted of a further count of ‘contravene prohibition/restriction in AVO’ and ‘stalk/intimidate intend fear physical etc harm’. He was also resentenced for his previous convictions. Having regard to the applicant’s circumstances, the Magistrate relevantly sentenced the applicant to a term of imprisonment of 7 months with a non-parole period of 3 months, back dated from the time he was taken into custody. The applicant was then released on parole on the same day in October 2019.
On the evening he was released in October 2019, the applicant became intoxicated and assaulted 2 young women, then aged 13 and 19, at the Blacktown Train Station. The applicant held the first woman’s hand against her will for about a minute, and when the 2
women tried to get through the ticket barrier, he placed his right arm on the second woman’s back, just below her right shoulder.
In March 2020, the applicant was convicted of 2 counts of common assault for his
offences in October 2019 and sentenced to 2 terms of imprisonment of 9 months. He
was also resentenced in relation to his previous ‘stalk/intimidate intend fear physical etc
harm’ offences, to 2 terms of imprisonment of 12 months. In total, he was sentenced to an aggregated term of imprisonment of 42 months.
On appeal to the NSW District Court, the applicant’s convictions and sentences were confirmed, but an aggregate sentence of 30 months imprisonment was imposed.
On 14 May 2020, the applicant’s visa was mandatorily cancelled under s 501(3A) of the Act. On 19 May 2020, the applicant made representations about revocation of the cancellation decision. The applicant also provided extensive material in support of his revocation request. On 4 February 2021, the delegate refused to revoke the mandatory cancellation of the applicant’s visa.
THE LAW
As the parties agree that the applicant does not pass the character test set out in section 501(6) of the Act given the length of his sentence, the sole issue before the Tribunal is whether, having regard to Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90), there is ‘another reason’ why the mandatory cancellation decision should be revoked.
There are a number of relevant principles contained in Clause 5.2 of Direction 90 that I have considered as follows:
1Australia 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.
2Non-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.
3The 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.
4Australia 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.
5Decision-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 type of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Direction 90 sets out primary and other considerations that must be considered, where relevant, when deciding whether to revoke the mandatory cancellation of a visa. Primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. However, other considerations should not properly be viewed as “secondary”; in certain cases, other considerations may outweigh primary considerations.
The primary considerations in Direction 90 are as follows:
(h)protection of the Australian community from criminal or other serious conduct;
(i)family violence committed by the non-citizen;
(j)best interests of minor children in Australia affected by the decision; and
(k)expectations of the Australian Community.
Direction 90 also sets out other considerations that must be taken into account, which include but are not limited to:
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)links to the Australian community.
THE ISSUES
It is agreed between the parties that the applicant does not pass the character test as he has been sentenced to a term of imprisonment for an aggregate of 30 months.
The issue for the Tribunal’s determination is therefore whether under s501CA(4)(b)(ii) there is another reason why the original decision should be revoked, such that the Tribunal may revoke the decision pursuant to section 501CA(4) of the Act.
THE EVIDENCE
Evidence of the Applicant
The applicant confirmed his personal statements dated 17 November 2020 and his statutory declaration dated 12 March 2021.
The applicant was born in Kenya and lived in that country until he came to Australia with his wife and children in May 2015. He separated from his wife in 2017 but says he maintained a close relationship with his children and that that relationship was encouraged by his wife. The children are now 9 and 11 years of age and the applicant maintains that he continues to have a strong relationship with them. He said that they did not visit him in jail as he thought that would be traumatic for them and that since he has been in Villawood they have been unable to visit because of Covid-19 restrictions. However, they have regular telephone and social media contact.
When asked about his life in Kenya, the applicant said that he had parents and siblings in Kenya including three brothers and two sisters. He said he had a difficult time growing up in that country and that he felt very isolated. He gave evidence that he had been sexually abused by his nanny and subsequently he had been sexually abused as a teenager by a man. As a result, the applicant said he felt very confused about his sexuality and that he had tried to commit suicide. He had been labelled as “weird” by his peer group and he felt very isolated. He said he saw himself as “bi-sexual” by the age of 15 and had multiple boyfriends throughout his adolescence. However, he never revealed his sexuality to his family in Kenya because it was very dangerous to be identified as a bisexual person in that country. The applicant said that on one occasion, he had been beaten up as a result of being found with a boyfriend in the toilets at a night club. However, he never reported the incident to the police as it was too dangerous to do so.
Under cross-examination, the applicant was questioned on his relationship with his family in Kenya. The applicant said that before 2017 he communicated with his parents at least once a month, however since then only has sporadic contact with his mother and eldest brother. When questioned on the contents of a file note of NSW Department of Corrective Services dated 30 March 2018 where the applicant stated that he has a “good relationship with parents whom he maintains contact with on fortnightly basis” and “gets along with all siblings”, the applicant said that he still had a good relationship with his family at that time but that it was beginning to deteriorate. The applicant also said that he still sends money to his family in Kenya, to help with the cost of his younger sister’s school fees.
The applicant said he loved his wife and continued to love her even though they had separated. He had met his wife through a friend around 2007. They had developed a relationship and after his first son was born they married and later his daughter was born.
The applicant said that he went through challenging times in his early years of marriage with issues around finances and trust but he remained optimistic that he and his wife could overcome any difficulties. The marriage ended in 2017, some two years after the family had moved to Australia when the wife moved out of the matrimonial home with the children. The applicant said he last saw his wife in 2019 when they were talking about arrangements for the children. He said he still speaks to his former wife and the children by phone and also has the occasional text. He is aware that his wife is now in a new relationship.
The applicant said that he did not tell his wife about his sexuality in Kenya but that she suspected that he was gay or bisexual. He said he never explicitly told his wife he was bisexual in order to protect the marriage. He said he had had relationships with both men and women in Kenya.
The applicant has been employed in IT security for about 15 years and is very well educated. He holds a master’s degree in computer science from the UK and bachelors’ degrees in Business Administration and Science from Kenya. Before his imprisonment, he was always gainfully employed in Australia. He has also been offered employment if he is able to remain in Australia and an offer of employment from Ameru Coffee Pty Ltd was presented in evidence to the Tribunal.
The applicant said that one of the reasons he wanted to remain in Australia was in order to assist his former wife, both financially and physically, in taking care of the children. He also felt that the children needed a father figure.
In relation to his drug and alcohol abuse, the applicant said he thought he had become addicted in 2017 as it was then that he found that he could not function without alcohol and also started to have regular hospital admissions. In addition to alcohol, the applicant was using the drugs ice and marijuana. He said that he had also used alcohol and drugs in Kenya and started using these substances at about the age of 25, usually in the company of friends. The applicant said that he had last consumed alcohol in 2019, and that since that time he had not used either alcohol or drugs despite drugs in particular being freely available both in the prison system and at Villawood.
Despite regular hospital admissions, the applicant said that he had not received proper treatment including medication. He said that his current health issues were schizophrenia, diabetes, depression, and anxiety. He was currently on medication to treat all of these conditions and he felt that the medications were effective and yielding very positive results. He expressed concern that if he were forced to return to Kenya he would not be able to access proper medical treatment for his various conditions, nor would he be able to afford the drugs necessary for effective treatment.
The applicant said that if forced to return to Kenya he would be in a life-threatening situation and that he would be “destitute” and “on the street” within a short period of time.
The applicant said that he had concealed his sexuality whilst living in Australia but that he had “come out” and told his wife after they had separated. He said he wished he had told her earlier. The applicant said that he had met RG online and that they had chatted online for some time. After separation he had moved in with RG and they had had a sexual relationship. He said that he had had about four other encounters with men but when questioned he said they were anonymous and took place in brothels. He described his relationship with RG as ongoing and said that he would return to live with RG if he were released into the community.
The applicant has made very significant efforts in relation to rehabilitation including a variety of courses, counselling and a self-help plan. He had been meeting with his psychiatrist, ST, who prepared a report for the Tribunal. The applicant said he believed that report to be to be accurate.
The applicant expressed considerable remorse and said that his detention at Villawood was a very strong deterrent to him re-offending. He said he understood that the main trigger for his offending was alcohol. He understood he had a low tolerance for alcohol, that he did not need it and that he had to avoid it completely.
He understood the harm he had done to his family and the community and intended to build positive relationships and keep working to support his family if he were released into the community. He also hoped to volunteer and to help others.
The applicant believed that if he were released into the community he would not reoffend as he now had effective medication for his medical conditions, he had completed a range of training courses, participated in counselling programs, and had a support network. He had been very shocked by the prospect of the cancellation of his Visa and said he would never touch alcohol again.
Evidence of ST
ST gave evidence that he was a clinical psychologist in his own practice. He had previously worked at Concord Hospital and in a private psychiatric hospital. He had been practising as a clinical psychologist for about 12 years. He deals with work cover clients who suffer from chronic pain, GP referrals, particularly for people with severe depression and conducts cognitive assessments for Migration agents. He also conducts specialist programs to assist people in drug and alcohol rehabilitation and learning strategies for life.
ST said he had reviewed the clinical history of the applicant and made a diagnosis of post-traumatic stress disorder (‘PTSD’) and schizophrenia. He said that the schizophrenia was the most serious of the two diagnoses, and that the applicant had suffered from psychotic episodes since his late teens, although this was not picked up when he was a teenager. He said the applicant had suffered from paranoid fear throughout most of his life, together with paranoid delusions.
The applicant had suffered abuse at an early age and ST was surprised that the applicant had not been given any previous treatment for this.

ST said that paranoid delusions, particularly when coupled with alcohol, make it more likely that a person will become violent. However, ST went to some lengths to clarify that while schizophrenia by itself can also lead to violence, this is not so in every case.
In relation to ongoing treatment, ST said the most important thing for the applicant was that he takes medication for schizophrenia and continues to see a psychologist. The applicant needed to understand the symptoms of his illness and how to respond to them. In particular, he needed to be able to differentiate between delusion and reality.
In ST’s view, it was of particular importance that the applicant completely abstained from alcohol and other illicit substances for life. Proper medication made it easier to impose the necessary disciplines, but ST also felt that prison and detention was a strong motivating factor.
ST noted that the applicant had been counselled by a range of agencies and he felt that even though schizophrenia was a debilitating illness, it was possible for the applicant to turn his life around.
In ST’s view, the applicant had paid a very heavy price for his sexuality, including suffering abuse and the breakdown of his marriage.
Although the applicant was now properly medicated, if he were to stop taking his medication,

ST felt that the symptoms of his psychiatric illness would return almost immediately.
When questioned by counsel for the respondent, ST acknowledged that he had consulted notes prepared by psychologist, Dr Shobha Yadav. ST also confirmed that the applicant’s psychiatric illness may have been contributed to by his use of alcohol and ice, and to a lesser extent, by his cannabis use.
ST thought that the applicant had been truthful when talking about his history and said that the risk to the community was low if the applicant were to be released because of his ongoing treatment and the insight he had gained as to his illness, along with the various counselling programs he had attended. However, this was only the case if the applicant did not drink alcohol at all in the future.
The extent of the applicant’s alcohol abuse was said to be a form of self-harm, and also a form of self-medication. ST said schizophrenia was not curable and would be with the applicant for life. Relapse was inevitable if the applicant was to cease taking his medication.
Evidence of RG
RG gave evidence that she had been born a male but had been taking hormones for more than 10 years in order to transition to female. She presented to the hearing as a well-dressed and well-presented woman. RG felt comfortable being addressed as “Ms”, rather than “Mr”. Accordingly, RG is referred to in this decision as a woman.
RG said that she had met the applicant on a dating site, called “Craig’s List” in about 2015. Between 2015 and 2017, they had chatted online prior to the applicant separating from his wife. RG said that she and the applicant had got along very well, and that the applicant talked about all of his various problems at home.
They did not meet in person until 2017 when the applicant moved out of home and came to live with RG. RG said that the applicant was bisexual and that she believed that because he had been married to a woman, but had also had sex with RG, who was born a man.
She said their sexual relationship started around 20 May 2017 when the applicant moved in with her and continued until the end of 2018.
RG said that she was forced to move the applicant out of the room she shared with him, and ultimately, to another place of residence. She said she could not continue to live with him due to his drinking and very challenging behaviours when he started using ice. RG said that her relationship with the applicant never ended, and that they continued to communicate. She regarded him as a partner and said that if the applicant were to be released into the community, they would live together again. Her family and friends regarded the applicant as her partner.
RG’s attention was drawn to a letter dated 3 September 2020 where she had told the Department that she had known the applicant since around 2015 when he arrived in Australia with his wife and two children. RG also told the Department that the applicant resorted to alcohol as a coping mechanism after his wife left him, which in her view, led to his offending behaviour and subsequent time in prison. RG said that the applicant was not a violent person, was very intelligent and was supportive of his children’s care, even after separation from his wife.
When asked under cross-examination why she had not described herself as the applicant’s ‘partner’ in her letter of support dated 3 September 2020, RG said it was because she stopped sleeping with him at that time because of his problematic behaviours with alcohol, ice and marijuana. Despite this, RG maintained that she had been in a continuous relationship with the applicant since 2017.
DISCUSSION
Before considering the various elements of Direction 90 it is important for me to deal with issues raised on behalf of the respondent as to the credibility of the applicant and RG in particular. Counsel for the respondent pointed to a range of issues which arose in evidence which go to the credibility of each of them.
It was acknowledged that the applicant appeared as a convincing witness, but the Tribunal’s attention was drawn to the fact that the applicant had given similar evidence and displayed similar insight previously but had not followed through on his plans for rehabilitation, expressions of remorse, or the insight he had displayed as to his offending. In the sentencing remarks of Magistrate K Robinson dated 13 September 2018, the applicant attributed his offending to “depression” and the fact he “started abusing alcohol”. He also said he was “very remorseful” and “very sorry” for his actions.
Further, in a letter of apology to the presiding magistrate of Fairfield Local Court dated 28 February 2018, the applicant referred to his offences of Breach of AVO and High Range Drink Driving and purported to “take full responsibility” for his actions, saying that he was “remorseful and ashamed of them”. He also reported attending an alcohol treatment program at the time at Blacktown Hospital, and said that he had managed to stop drinking entirely. Significantly, he made an undertaking to be of good behaviour and “never re-offend if given a second chance”. Some efforts in this regard are evident from the letter of Dr Shobha Yadav to Fairfield Local Court dated 6 March 2018, which verifies that the applicant had visited her for treatment of his mental health issues on two occasions in 2017 and 2018. However, it is clear that this did not continue.
It is clear that the applicant was aware of his problems and indicated a willingness to seek professional help and to change, but it did not occur. In the view of Counsel for the respondent, this was an indication that the applicant had a tendency to make promises but did not follow through.
Counsel also pointed to some inconsistencies in the applicant’s evidence, including his evidence that his parents stopped talking to him when they learned of his bisexuality. Contrary to this, in late 2018, the applicant had told his NSW Department of Corrections case officer that he had a “good relationship” with his parents and had fortnightly contact with them.
It is also apparent that the applicant was still supporting his family as recently as May 2020. Relevantly, the applicant notes in his personal circumstances form provided to the Department of Home Affairs dated 19 May 2020 that he has been supporting his “parents and brothers and sisters financially”, which will be “unable to continue” in the case of an unfavourable decision in relation to his visa.
There was also no reference to the incident in the toilet at a nightclub in Kenya in his statutory declaration or statement in support of revocation dated 12 March 2021. Counsel for the respondent suggested that this may indicate a potential fabrication of evidence to support the applicant’s claims of bisexuality.
Counsel also pointed to a number of other inconsistencies in the applicant’s evidence. The applicant’s evidence in chief was that he had not been medicated at the time of his offending, however the Emergency Department Note of Blacktown Hospital dated 12 August 2019 clearly states that the applicant was taking anti-depressants at that time. Moreover, the Clinical Records of International Health and Medical Services dated 5 August 2020 state that the applicant was “always on oral meds” for his depression and only became “non compliant (sic) for a short period followed by panic attacks, then started meds again”.
There is also further inconsistency as to when he became addicted to alcohol. The applicant told the Tribunal that he was not addicted to alcohol upon arriving in Australia in 2015 and that his relationship with alcohol became more problematic after the separation from his wife in 2017. This is inconsistent with a GP Consultation note dated 5 August 2020, which reports that the applicant had consumed “5-6 bottles of wine/day” for over 10 years.
Counsel for the respondent also pointed to inconsistencies in RG’s evidence. In her statement of support dated 10 March 2021, RG said that the applicant was her partner after he separated from his wife and that she was in a “sexual relationship” with him. RG goes on to say that they “later became just good friends” as his depression, mental health and alcohol abuse got worse. However, in oral evidence to the Tribunal, RG maintained that the relationship never ceased and that she continues to identify as the applicant’s partner.
Counsel for the respondent also raised issues as to the evidence of ST. In particular, Counsel submitted that the Tribunal should not accept ST’s report as to the applicant’s sexuality and further submitted that there was real doubt as to when the applicant first developed schizophrenia, although the diagnosis was not contested. There was also doubt as to the underlying cause, which may have been excessive alcohol consumption.
I note the inconsistencies raised by Counsel for the respondent and the relevance in considering the evidence of the applicant in particular, but I do not find that any of the witnesses referred to were not credible. In particular, I accept that ST gave his professional opinion based upon the evidence available to him at the time, and I accept his report. Further, it is not unusual for recollections to vary, nor for witnesses to present themselves in the best possible light.
Turning now to the provisions of direction 90. I will first consider each of the four primary considerations.
PRIMARY CONSIDERATIONS
Primary Consideration A: Protection of the Australian Community from criminal or other serious conduct
The first consideration is the protection of the Australian community, which requires a consideration of the nature and seriousness of the applicant’s conduct, as well as an assessment of the risk the applicant poses to the Australian community.
Nature and seriousness of conduct
There is no doubt that the applicant’s offending is serious, as is reflected in the sentence imposed.
The applicant was guilty of breaches of two apprehended violence orders (AVO) taken out against him. The first against his wife and the second against his roommate. Breach of an AVO cannot be treated lightly. The regime has been put in place for the protection of vulnerable members of the community and for vulnerable women in particular. Disregard for such orders shows a lack of respect for the Australian legal system and for vulnerable members of the community.
The applicant was guilty of two stalking/intimidation offences, one against his wife where he threatened to kill her were she to report his conduct to the police and another against a female staff member at a hotel when she was simply attempting to discharge her employment duties and disregard his unwanted attention.
The applicant was also guilty of two common assault offences against women at a train station, and it is particularly egregious that in one instance, the female in question was a minor.
When one looks at the offences in aggregate, most of them were against women and violence against women is to be taken very seriously. The fact that there was limited physical abuse does not excuse the conduct which was clearly frightening to the victims and on some occasions occurred in a public place.
The offences must be considered very serious.
Risk to the Australian Community
ST gave very clear evidence that the applicant will be a risk to the community if he is to engage in alcohol or drug abuse in the future. Alcohol consumption in particular is a serious risk factor.
The evidence shows clearly that for a number of years, the only time the applicant has been sober or not using drugs is when he has been in prison or immigration detention, although I note his evidence that alcohol and in particular, drugs, were available both in prison and in immigration detention but he had not used either substance.
There have been instances in the past, for example, after his release from Bloomfield Rehabilitation centre, where the applicant has stayed sober for a reasonable period of time. However, the evidence overwhelmingly indicates a tendency to relapse into alcohol abuse. For example, the police report dated 23 February 2019 describes an event that occurred less than a month after the applicant’s release from custody, where the applicant was “intoxicated and harassing staff at [a] nearby chicken shop” in Blacktown NSW and was issued with a direction to move on.
ST said that if the applicant were to stop taking his medication, he will almost certainly start to drink again. The evidence given to the Tribunal is that the applicant is currently handed his medication by staff at the detention centre so that there is currently a regime which helps to ensure that his medication is taken. On his release, the applicant will have to assume this responsibility.
On the basis of the applicant’s previous history, it is not possible to be confident that he will definitely continue to take his medication, and that he will not drink again after his release. Therefore, it is appropriate to take the applicant’s statements in this regard with some degree of caution, given that such assurances have been made in the past and that the evidence makes it clear that from as early as 2018, the applicant knew that he would be unable to see his children if he continued to drink but continued to do so. This was despite the evidence provided that his daughter WG had said to him “we don’t like you when you are drunk”.
Up until the time of his incarceration, the applicant had completed numerous courses in relation to drug and alcohol abuse, but he had not been able to change his behaviour. A case note report from Blacktown Community Corrections dated 1 July 2019 states that the applicant has “missed six sessions” and presented as “aggressive” at the last session. The facilitator also noted that the applicant had presented to the current session with “a couple of bottles of wine in an aldi bag”, which participants said they had seen him in a laneway drinking in the break. Another participant also said they had seen the applicant walking down the street “waving his arms around and screaming”.
In the applicant’s favour, I note that he has not previously understood the possible consequences in relation to his visa revocation if he were to continue to drink or not take his medication or to reoffend. The possibility of deportation is likely to be a powerful motivating factor in rehabilitation.
In light of all the evidence however, I am of the opinion that there is a moderate to high risk that the applicant may reoffend.
Overall, this first consideration weighs heavily against revocation.
Primary Consideration B: Family violence committed by the non-citizen
Clause 4 of Direction 90 sets out a wide definition of family violence as “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”.
There is no doubt that the applicant’s death threats against his wife fall directly within the definition of family violence.
Whilst there may be no objective evidence of physical violence towards his wife and family, the forensic history contained in the Clinical notes of Blacktown Hospital dated 15 July 2017 states that an AVO was taken out by the applicant’s wife a week before his discharge as he was “aggressive and violent at home esp (sic) when he is intoxicated”. It is well established that psychological threats and intimidation can be just as harmful as actual physical violence and have long lasting negative effects for women and for their children.
In this regard, I note that the applicant’s wife told police that she refused to have him at home and that the children “hides (sic) under the bed” to get away from the applicant when he was drunk.
The applicant’s wife had told police that she felt threatened by her husband’s behaviour, which it is relevant to note was not a one-off event, but more a recurring pattern.
I find this consideration weighs heavily in favour of non-revocation of the delegate’s decision.
Primary Consideration C: Best Interests of minor children in Australia affected by the decision
The applicant has two children, DG and WG. DG is 11 years old and WG is 9.
It is relevant that both children have made it clear that if the applicant is drunk, they do not want him to be part of their lives.
The evidence also indicates that other than for the period January – April 2019, there has recently been very limited physical contact between the applicant and his children. The applicant’s ex-wife in a letter of support dated 7 September 2020 refers to it being better for the children if the applicant remains in Australia because of the personal and emotional support that he can provide. The applicant also referred to financial support he could provide to the children.
The applicant’s ex-wife did not give evidence at the hearing.
The applicant has kept in touch with the children through electronic means for almost two years. Such communication could continue if the applicant were not to remain in Australia. It is also relevant that the applicant has not been a good role model for his children and that they were at times frightened of him.
Overall, I find that it would be in the best interests of the children for the applicant to remain in Australia, both because of the financial support he could provide for them, and if he does not drink, the evidence indicates that he is a supportive and caring father who is capable of playing a positive role in the lives of the children. However, if he were to drink, his impact on the children is likely to be negative.
Overall, I find this consideration weighs moderately to heavily in favour of revocation.
Primary Consideration D: Expectations of the Australian Community
Direction 90 sets out the expectations of the Australian community. Broadly these encapsulate the findings of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185, where the Full Court of the Federal Court decided by majority that it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. Rather, the expectations of the community that decision-makers are required to consider are those set out in Direction 90 at paragraph 8.4.
The applicant’s offences against women, his intimidation, breach of AVOs and other behaviours indicate that he has repeatedly failed to abide by Australian law. Having regard to the provisions of Direction 90 and the applicant’s offences, the Australian community would expect that the applicant is not given the privilege of holding an Australian visa.
Overall, this consideration weighs heavily in favour of non-revocation.
OTHER CONSIDERATIONS
Strength, nature and duration of ties to Australia

The applicant arrived in Australian in May 2015 and started offending in June 2017.
He has been gainfully employed for most of the time that he has not been incarcerated and clearly has significant skills in IT Security.
He has an offer of employment from Ameru Coffee Pty Ltd, however his removal from Australia is unlikely to have any significant impact on Australian business.
The applicant’s ex-wife and children will continue to live in Australia and all may be negatively affected if he were unable to continue to live in Australia.
I also accept that the applicant has a relationship with RG, who would be impacted if he were returned to Kenya, especially as she indicated great fear for her safety if she were to visit the applicant in Kenya.
On the other hand, the applicant has spent most of his life in Kenya and has friends and family in that country, which indicates a reasonable likelihood he will be able to re-assimilate into the community.
Overall, I give this consideration moderate weight in favour of revocation.
International non-refoulement obligations
I note the decision of the Full Court of the Federal Court in Ali v Minister for Home Affairs [2020] FCAFC 109. Accordingly, the Tribunal must decide whether the applicant’s removal from Australian to Kenya would expose him to harm and result in Australia breaching its international non-refoulement obligations.
When considering all of the evidence given by the applicant, RG, and ST in relation to the applicant’s bisexuality, it is very difficult to come to a definitive conclusion as to the applicant’s bisexuality. The applicant does not appear to have told anyone of his bisexuality until 2017, there is no corroborating evidence as to any same sex relationships in Kenya or in Australia other than the evidence of RG, which in the circumstances must be treated with some caution.
The applicant said that any sexual activity with men in Australia in particular had been anonymous and had occurred “in brothels”. He said he had had boyfriends in Kenya and that he was beaten up when found with another man in a toilet at a nightclub in Kenya. There was however, no evidence to corroborate these claims, which is perhaps unsurprising given the intolerance towards homosexual people in Kenya.
Despite the lack of clear and credible evidence, I accept the applicant’s claim to be bisexual. However even when this claim is accepted, there is no evidence that the applicant is at any real risk of harm if he were to be returned to Kenya. In fact, all of the evidence indicates that although there are laws that criminalise homosexual behaviour in Kenya, they are rarely enforced. The advice of DFAT provided by the applicant states that it is illegal for men to have same-sex relations in Kenya. However, an article by Human Rights Watch dated 24 May 2019 tendered by the respondent said that while anti-homosexuality laws exist in Kenya, the laws are a “colonial relic” and “rarely enforced”, and there have only been two prosecutions against four people in the last 10 years. On the basis of the evidence presented to the Tribunal, the applicant has been very discrete in relation to any liaison with other men and it is reasonable to assume this discretion will continue.
On the basis of the evidence before the Tribunal, I find that the applicant is unlikely to suffer persecution in Kenya, nor that he has a well-founded fear of persecution based on his sexuality or his mental health status.
There is also evidence that the applicant would be able to access treatment for his psychiatric illness in Kenya and that although he may face some discrimination, there is no evidence that he would be at any real risk of harm, or could not continue to access the medication he is currently taking, or receive appropriate help and counselling in Kenya, even though it may be less socially acceptable or more expensive than in Australia.
The weight of the evidence therefore does not support a conclusion that the applicant has a well-founded fear of persecution on the basis of his mental health or his bisexuality if returned to Kenya. Unlike many of the cases before the Tribunal, I find that Australia does not have any international protection obligations towards the applicant.
Additionally, I note that it is open to the applicant to apply for a protection visa where the requirements may differ.
Overall, I give this consideration neutral weight in relation to the issue of revocation or non-revocation.
Extent of impediments to the applicant if removed from Australia
I accept that there are a number of impediments to the applicant returning to Kenya, some of which I have dealt with under the heading of non-refoulement obligations. The applicant would also clearly miss his children and any regular physical contact with them.
In particular, the applicant, may face some discrimination and possible harassment as a result of his bisexuality and or mental health issues. Although in relation to the latter, the evidence demonstrates that if he is taking his medication which is available in Kenya, his behaviour would be seen as entirely normal.
The applicant grew up in Kenya and has lived in Kenya for most of his life. He has family in Kenya and has previously worked in Kenya. He clearly has very valuable skills in information technology and it is likely that he would be able to find another job.
I do not accept the applicant’s evidence that he would be destitute and “on the street” if he were returned to Kenya as this is completely inconsistent with someone with an education, work history and a network of family and friends in Nairobi, the city to which he would return in Kenya.
On balance, I give this factor low to moderate weight in favour of revocation.
CONCLUSION
In considering all of the factors discussed above, I find the balance of factors weighs in favour of non-revocation of the delegate’s decision. In particular, the applicant’s family violence, offences against women, the risk to the Australian community if he is released, and the overall expectations of the Australian community weigh very heavily in favour of non-revocation and outweigh those factors in favour of revocation.
DECISION
In weighing all the evidence and the considerations, I find that the correct and preferable decision is to affirm the reviewable decision made on 4 February 2021, being the decision of the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the cancellation of the applicant’s Skilled (Class SI) (Subclass 189) visa.

I certify that the preceding 125 (one hundred and twenty-five) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

........................[SGD]................................................
Associate
Dated: 29 April 2021

Date(s) of hearing: 19 & 20 April 2021

Date final submissions received: 20 April 2021

Solicitors for the Applicant: Lucky Ehimudiamen, Lucky Iyare & Associates

Solicitors for the Respondent: Max Gao, Australian Government Solicitor

[2021] AATA 1045

29 April 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Date(s) of hearing:	19 & 20 April 2021
Date final submissions received:	20 April 2021
Solicitors for the Applicant:	Lucky Ehimudiamen, Lucky Iyare & Associates
Solicitors for the Respondent:	Max Gao, Australian Government Solicitor