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

[2023] AATA 268

WBVB and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 268 (28 February 2023)

Division:GENERAL DIVISION

File Number(s):      2022/10245

Re:WBVB  

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member M Griffin KC

Date:28 February 2023

Place:Sydney

The Tribunal sets aside the reviewable decision of the delegate of the Minister dated 8 December 2022 not to revoke the mandatory cancellation of the Applicant’s Global Special Humanitarian (Subclass 202) visa. In substitution, the Tribunal decides that the cancellation of the Applicant’s Global Special Humanitarian (Subclass 202) visa is revoked.

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

Senior Member M Griffin KC

Catchwords

MIGRATION – mandatory visa cancellation under section 501 – decision not to revoke mandatory visa cancellation – where the applicant does not pass the character test – whether there is another reason to revoke the visa cancellation – consideration of direction no. 90 – protection of the Australian community – the nature and seriousness of the conduct – risk of reoffending – family violence – best interests of minor children – expectations of the Australian community – international non-refoulement obligations – extent of impediments if removed – impact on victims – links to the Australian community – decision under review set aside and substituted.

Legislation

Migration Act 1958 (Cth)

Cases

FYBR v Minister for Home Affairs [2019] FCAFC 185

Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166

Secondary Materials

Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Senior Member M Griffin KC

28 February 2023

1.       The Applicant, who is a 30-year-old citizen of Sierra Leone, was granted a Global Special Humanitarian (Subclass 202) visa on 3 April 2007.

2.       The Applicant, who because of convictions in April 2022 does now not pass the character test, was the subject of a decision by the delegate of the Respondent Minister made on 8 December 2022 not to revoke the mandatory cancellation of his visa.

3. The Tribunal is required to consider whether there is another reason to revoke the mandatory cancellation of the Applicant’s visa pursuant to section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) (the Act).

FACTS

4.       The Applicant was born in September 1992 in Sierra Leone and was raised by his grandparents following the death of his parents when he was a young child.

5.       At the age of approximately 10 years, the Applicant’s evidence is that he was kidnapped by rebel forces in Sierra Leone and forced to live with those rebels for about two years, during which time the rebel forces forced the Applicant to commit acts of stealing under threat of punishment. Furthermore, the Applicant observed acts done by others that were of a violent and terrifying nature. The Applicant says that he is still affected by those memories of violence today.

6.       At about the age of 12 years, the Applicant was rescued by peacekeepers and was sent to an orphanage where he was ultimately collected by family members who later abandoned him.

7.       The Applicant was mistreated and abused at the orphanage by being deprived of food and corporal punishment. The Applicant was adopted by a citizen of Sierra Leone and went with that person to live with her and her family. The Applicant was granted a humanitarian visa in April of 2007 and arrived in Australia on 13 July 2007, at the age of 14 years.

8.       The Applicant lived with his adoptive mother and her family at the home of the mother’s sister in Parramatta for a period of approximately two to three years, at which time the Applicant was the subject of abuse by the adopted mother’s husband both before he arrived in Australia and during his residency in Australia.

9.       In about 2009, the Applicant’s adopted family moved from Parramatta, leaving the Applicant behind, at which time the Applicant stopped attending school. The Applicant says that his home life became chaotic, living at various places, including with friends in other parts of Sydney and in Griffith.

10.     The Tribunal notes that these facts and circumstances are largely all a recounting by the Applicant and it is necessary for the Tribunal to accept the Applicant’s credibility on these and other matters that will be discussed below in order for the Applicant’s arguments to carry any weight before the Tribunal. More will be said on the topic of credibility later in this decision.

11.     The Applicant seems to have had a good history of employment, working in hospitality, construction, labouring, and as a forklift driver. He commenced his working life at about 15 years of age and later completed a trade course as a carpenter.

12.     The Applicant has a number of children in respect of whom he is the biological father and there are other relevant children whose interests will be discussed below in this decision.

Issues

13. The Applicant does not pass the character test because he has a substantial criminal record by virtue of having been sentenced to a term of imprisonment of 12 months or more: ss 501(6)(a) and 501(7)(c) of the Act. This is not disputed by the Applicant.

14. The sole issue for the Tribunal's determination is whether it can be satisfied that there is another reason why the original decision should be revoked, such that the Tribunal may revoke the decision: s 501CA(4)(b)(ii) of the Act.

Relevant legislation and policy

15. Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: see s 501CA(1).

16. Section 501CA(4) provides that:

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

(a) the person makes representations in accordance with the invitation; and

(b) the Minister is satisfied:

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

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

17.     In Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at [38], North ACJ held that:

The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked…

18. Section 501(6)(a) relevantly provides that a person does not pass the character test if the Applicant has a substantial criminal history. Section 501(7)(c) states that a person has a substantial criminal history if they have received a sentence of imprisonment of 12 months or more.

19.     The Applicant was sentenced to a term of imprisonment for more than 12 months. The Applicant does not pass the character test.

20. Section 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.

21. The Minister has made a written direction pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4) (Direction No. 90). Section 5 of Direction No. 90 sets out preliminary matters, including general guidance and principles for decision-makers, which relevantly includes that:

(1)  Australia has a sovereign right to determine whether non-citizens who are of character concern have a right 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 (paragraph 5.2(1));

(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 (paragraph 5.2(2));

(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 (paragraph  5.2(3));

(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 (paragraph 5.2(4));

(5)  Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non- citizen's conduct or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community (paragraph 5.2(5)).

22.     Part 2 of Direction No. 90 identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen's visa. It comprises four Primary Considerations and several specified, but non-exhaustive, Other Considerations, which must be taken into account.

23.     Pursuant to Part 2 of Direction No. 90, the Tribunal must, to the extent that they are relevant to this case, take the relevant considerations (both primary and other) into account and:

(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight (paragraph 7(1)).

(2)Primary considerations should generally be given greater weight than the other considerations (paragraph 7(2)).

(3)One or more primary considerations may outweigh other primary considerations (paragraph 7(3)).

24.     These principles are of course dependent upon the facts and circumstances of each case.

25.     The primary considerations are:

(1)Protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);

(2)Whether the conduct engaged in constituted family violence (Primary Consideration 2);

(3)The best interests of minor children in Australia (Primary Consideration 3); and

(4)Expectations of the Australian community (Primary Consideration 4).

26.     The Tribunal must also take into account other considerations insofar as they are relevant.

27.     These considerations include (but are not limited to):

a)International non-refoulement obligations;

b)Extent of impediments if removed;

c)Impact on victims;

d)Links to the Australian community, including:
i) strength, nature and duration of ties to Australia; and
ii) impact on Australian business interests.

The character test

28. As set out above, s 501(6)(a) of the Act provides that a person does not pass the character test if the person has a ‘substantial criminal record’ as defined in s 501(7) of the Act.

29. For the purposes of the character test, a person has a substantial criminal record under s 501(7)(c) of the Act if the person has been sentenced to a term of imprisonment of 12 months or more.

30. In circumstances where the Applicant has been sentenced to imprisonment of 12 months or more, the Applicant satisfies the definition in s 501(7)(c) of the Act and therefore fails the character test.

EXERCISING THE DISCRETION

31. In exercising the discretion in s 501CA(4) of the Act, the Tribunal must comply with Direction No. 90 (see s 499(2A) of the Act) which sets out the relevant considerations.

Primary Consideration 1 – Protection of the Australian community

32.     Paragraph 8.1 of Direction No. 90 provides:

(1)  When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

33.     Paragraph 8.1(2) of Direction No. 90 provides that decision-makers should also give consideration to:

a)the nature and seriousness of the non-citizen's conduct to date; and

b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

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

34.     Sub-paragraph 8.1.1 of Direction No. 90 provides a list of factors to be considered in determining the nature and seriousness of a person's criminal offending or other conduct to date, which includes:

a)without limiting the range of offences that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community (sub-paragraph 8.1.1(1)(a)(i)- (iii)):

(i)violent and/or sexual crimes;

(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;

(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious (sub-paragraph 8.1.1(1)(b)(i)-(iv)):

(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision- maker's opinion (for example, section 501(6)(c));

(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;

c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;

d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;

e)the cumulative effect of repeated offending;

f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).

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

35.     Paragraph 8.1.2 of Direction No. 90 provides that decision-makers must have regard to the following:

(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

i)    information and evidence on the risk of the non­ citizen re-offending; and

ii)   evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

Seriousness of offending and future risk

36.     Paragraph 8.1.2(2)(b) of Direction No. 90 requires the Tribunal to have regard to the likelihood of the person engaging in further criminal conduct, including evidence of re-offending and rehabilitation.

37.     The Applicant has been convicted or otherwise dealt with for a number of criminal offences that really fall into two separate categories, although they range in time from April 2022 when the Applicant was convicted and sentenced to 12 months imprisonment for a collection of 13 offences during 2020 and 2022, and an earlier series of offences between approximately 27 May 2014 and 19 January 2021, all of which were dealt with other than by custodial sentences.

38.     The first period of offending from 2014 discloses a variety of what appeared to be, to the Tribunal’s mind, relatively low-offending, including assaults, and also antisocial offences, for example, failing to give particulars to another driver for which he was fined $200, resisting an officer in the execution of his duty, which was a fine of $750, behaving in an offensive manner in 2017, for which the Applicant was fined $250. An assault in 2014 resulted in a section 10 Bond, and in relation to other offences, for example, armed with intent to commit an indictable offence, the Applicant was ordered to perform a Community Corrections Order for two years together with an order at the same time in the same terms for common assault and affray. Whilst the Tribunal recognises that any offence of assault is serious, having regard to the circumstances as disclosed in the material provided to the Tribunal and the outcomes in particular rendered by the Sentencing Courts on the various occasions, all suggest, and the Tribunal accepts and acts upon the basis that this offending was, whilst not forgivable or excusable, at very much the lower end of the scale of seriousness of offending.

39.     The Applicant originally submitted that the range of offending has not increased in seriousness. That is simply not the case, and the Tribunal rejects that submission. The offences dealt with in 2022 at the Fairfield Local Court are of a different level of seriousness, exemplified by the disposition of the matters. Overall, a 12-month sentence of imprisonment, ordered to commence on 3 January 2022 concluding on 2 January 2023 with a non-parole period of six months.

40.     Viewed objectively, it might be supposed that that sentence or those sentences are modest when looking at the raw number of offences for which the Applicant was dealt with.

41.     The Tribunal notes that the Applicant, in relation to many of the offences, including the allegations of misconduct whilst in immigration detention, seeks either to ameliorate his involvement or deny responsibility in whole or in part. For example, in relation to the offence concerning Bernice, the Applicant denies what must be regarded as a relatively low level assault by pushing both her and the sister in respect of whom he was dealt with on that occasion at the Fairfield Local Court on 4 April 2022.

42.     In an extensive review of his convictions, the Applicant provides explanations, justifications, and down right denials of conduct. The Tribunal has viewed some of these explanations with some scepticism, an example of which is the explanation given by the Applicant concerning the offence when he had a knife in his possession and at which time, he said, that whilst he was defending himself, he did not realise he had the bread knife in his hand. This explanation is risible and unfortunately casts some doubt on the entire credibility of the Applicant’s evidence and what he says about other matters that are pertinent and highly relevant to his case.

43.     The fact of the matter is that the Applicant has either pleaded guilty to all these offences, or been found guilty, and the Tribunal will act on that basis. The Tribunal, however, recognises that there are often other aspects to the version of matters put before the court by the police, and although the Tribunal does not accept wholeheartedly all the explanations which the Applicant has made in an attempt to diminish his responsibility in a criminal sense, nonetheless, the Tribunal is prepared to accept that the Applicant’s perception of matters is somewhat less criminally responsible than was put before the court which, in many cases, is put in the form of a very black and white formula by the police.

44.     The Applicant gave oral evidence. The Tribunal found his evidence to be, on occasions, evasive and inherently incredible in relation to some explanations, including the incident related to his smoking of ‘bup’.

45.     As to this latter matter, the Tribunal formed the view that the Applicant deliberately lied to the Tribunal in his evidence. The Applicant also exhibited a lack of candour, for example, when he attempted to portray, by specific lack of detail, the amount of counselling he had had with Odyssey House, which was only uncovered by questioning from the Tribunal.

46.     The Tribunal was gravely concerned about the Applicant’s credibility in relation to the issues pertinent to his background history and the non-refoulement obligations.

47.     Ultimately, the Tribunal, although somewhat concerned with the Applicant’s credibility, is broadly prepared to accept his assertions concerning minor children, his background history, and the deprivations he suffered.

48.     Importantly, the Tribunal formed the view, having had the opportunity to observe the Applicant and analyse his sincerity, that he is genuine in his remorse, in his attempted rehabilitation and in his genuine desire to continue to participate in the rehabilitation programs of anger management and drug and alcohol programs should he be released into the community.

49.     It is relevant to record that there is little evidence so far of proven rehabilitation, however, the Tribunal accepts the opinion expressed by Mr Watson-Munro, that with a genuine attitude to rehabilitation, this will act as a protective factor and rehabilitation will provide a satisfactory and safe basis for the Applicant to be released into the community.

50.     The Tribunal recognises that there is some evidence showing a lack of motivation and an attitude of non-compliance in the past with proposals for counselling and rehabilitation in general. The Tribunal accepts Mr Watson-Munro’s statements which assist in explaining that the Applicant should not necessarily be dismissed as being non-compliant and disinterested in counselling and rehabilitation, with Watson-Munro explaining satisfactorily to the Tribunal, that there were a variety of circumstances which may have affected the Applicant and caused an apparent lack of interest and motivation.

51.     In the event, the Tribunal has come to the conclusion that it should take a rather more benign view of the Applicant’s behaviour and of his oral evidence than would at first blush appear to be the case.

52.     In the event, the Tribunal is of the view that the Applicant’s overall criminal conduct in the early first phase discussed above is of a relatively minor dimension and does not, in any practical sense, seriously impact on the overall consideration of his seriousness of offending behaviour or the risk that he is likely to be to the Australian community.

53.     The second and later period of offending dealt with in 2022 is somewhat different. The behaviour is more serious, providing an escalating picture of conduct, although the Tribunal accepts that the circumstances surrounding particularly the offence on 11 October 2020 when the Applicant went to the home of a man known to him and where an argument ensued involving others, including a woman and her mother, is not a black and white picture. Although all the conduct and all the assaults are viewed by the Tribunal, in this case, as serious according to Direction No. 90, nonetheless, they do not speak of a particularly violent man but rather someone who has issues with anger and an inability to control his rage in particular circumstances which are upsetting and annoying to him.

54.     The Tribunal is ultimately of the opinion that the Applicant’s offending is at a moderate level of seriousness overall and explicable to some extent although not forgivable, by factors relating to his childhood and the experiences that he suffered at the hands of others.

55.     The Tribunal is further of the view and accepts, having considered carefully the Applicant’s credibility both in terms of his written material and in his behaviour under cross-examination in the hearing itself, that the Applicant is to be accepted as someone who has endured a particularly horrific childhood and that the effects of those experiences continue to affect the Applicant today.

56.     The Tribunal infers overall, particularly having regard to the evidence of Mr Watson-Munro, the psychologist, that those experiences have informed and influenced the Applicant in a way that does not excuse his conduct but makes it more comprehensible and provides a basis for acting in a more understanding and sympathetic way both in understanding the Applicant’s criminal behaviour and in providing a background which lays the foundation for a somewhat more sympathetic approach to the plight that this Applicant finds himself in. This is entirely consistent with general principles of law relating to sentencing of offenders in terms of assigning culpability.

57.     The Tribunal assesses ultimately that the Applicant is a risk of committing offences in the future and those offences, however, are likely to be limited to the types of behaviour which he has exhibited in the past, that is, behaviour which is fundamentally informed by his past experiences. Furthermore, the Tribunal is of the view that if the Applicant was to be a serious threat to the Australian community in terms of violence, that would have been demonstrated already by the Applicant who has had the means and opportunity to demonstrate greater levels of violence than those relatively minor offensive behaviours exhibited and dealt with in the past, including the offending dealt with on 4 April 2022.

58.     As to a risk assessment in relation to the Applicant’s future conduct, there is some risk that the Applicant will commit further offences. The Tribunal is impressed and accepts not only the Applicant’s apparent determination, which the Tribunal concludes is genuine, but also protective factors that the Tribunal accepts and are stated by Mr Watson-Munro as features which may act to restrain the commission of offences in the future. Those factors include the presence of his child and the present relationship which the Applicant has, all of which could be lost to him should he be deported; the actual fear of deportation itself, and the consequences of being returned to Sierra Leone, which the Tribunal also regards as being honestly held by the Applicant.

59.     These are generally protective factors, which the Tribunal considers amongst other matters urged upon the Tribunal by the Applicant’s counsel, that are likely to put a break on further misbehaviour.

60.     The Tribunal accepts a genuine determination by the Applicant to seek psychological treatment in order to manage what appears to be uncontrolled behaviour in the past that has led to criminal conduct. There is some evidence, the Tribunal accepts, that the Applicant attempted voluntarily to access that type of treatment in the past and believed himself to be stabilised by virtue of a limited period of treatment.

61.     There is also some limited evidence that the Applicant received some rehabilitative treatment whilst in custody.

62.     All of these matters referred to above lead the Tribunal to conclude that, whilst there is a risk of the Applicant committing further offences of the type that he has committed in the past, nonetheless, that risk is lessened by the protective factors referred to above.

63.     The Tribunal accepts as a general proposition that the Applicant has mental health issues as a result of childhood incidents. In that regard, it is proper to consider the criminal conduct involved in by the Applicant as being appropriately diminished by reason of those mental health issues. That, in the Tribunal’s view, is directly referable to his childhood experiences. That connection between his mental health, his childhood experiences, and the explanation that those experiences have affected his criminal behaviour are, in the Tribunal’s opinion, appropriate to take into account in an overall assessment of the responsibility, the criminal conduct, and the seriousness of that conduct in assessing the Applicant within this consideration.

64.     The Tribunal is of the opinion that although this consideration weighs against the Applicant, its weight should not be determinative having regard to the foregoing matters mentioned.

Primary Consideration 2 – Family violence committed by the non-citizen

65.     Paragraph 8.2(1) of Direction No. 90 provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.

66.     Paragraph 4(1) defines family violence to mean ‘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’ (emphasis in original).

67.     Primary Consideration 2 is relevant in circumstances where (paragraph 8.2(2)):

a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence (sub-paragraph 8.2(2)(a)); and/or

b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen has been afforded procedural fairness (sub-paragraph 8.2(2)(b)).

68.     Paragraph 8.2(3) of Direction No. 90 provides that, in considering the seriousness of family violence engaged in by the non-citizen, the following factors must be considered, where relevant:

a)the frequency of the non-citizen's conduct and/or whether there is any trend in increasing seriousness (sub-paragraph 8.2(3)(a));

b)the cumulative effect of repeated acts of family violence (sub-paragraph 8.2(3)(b));

c)rehabilitation achieved at the time of the decision since the person's last known act of family violence, including (sub-paragraph 8.2(3)(c)):

(i)the extent to which the person accepts responsibility for their family violence related conduct (sub-paragraph 8.2(3)(c)(i));

(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children) (sub-paragraph 8.2(3)(c)(ii));

(iii)efforts to address factors which contributed to their conduct (sub- paragraph 8.2(3)(c)(iii)); and

d)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence (including warnings about the non-citizen's migration status), noting that the absence of a warning should not be considered in the non-citizen's favour (sub-paragraph 8.2(3)(d)).

69.     There is no evidence to indicate that this consideration is relevant to this review.

Primary Consideration 3 – Best interests of minor children in Australia

70.     Paragraph 8.3(1) of Direction No. 90 provides that decision-makers must make a determination about whether revocation is, or is not, in the best interests of a child affected by the decision.

71.     This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made (sub-paragraph 8.3(2)).

72.     Paragraph 8.3(3) provides that the best interests of each child should be given individual consideration to the extent that their interests may differ.

73.     Paragraph 8.3(4) provides a list of factors to be considered in determining the best interests of the child, which includes:

a)the nature and duration of the relationship between the child and Applicant. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence or limited meaningful contact (including whether an existing Court order restricts contact) (sub-paragraph 8.3(4)(a));

b)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, and including any Court orders relating to parental access and care arrangements (sub- paragraph 8.3(4)(b));

c)the impact of the Applicant's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child (sub- paragraph 8.3(4)(c));

d)the likely effect that any separation from the Applicant would have on the child, taking into account the child's or Applicant's ability to maintain contact in other ways  (sub-paragraph 8.3(4)(d));

e)whether there are other persons who already fulfil a parental role in relation to the child (sub-paragraph 8.3(4)(e));

f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child) (sub-paragraph 8.3(4)(f));

g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the Applicant, or has otherwise been abused or neglected by the Applicant in any way, whether physically, sexually or mentally (sub-paragraph 8.3(4)(g)); and

h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant's conduct (sub-paragraph 8.3(4)(h)).

74.     The Applicant has three biological children and four step-children. Although the Respondent suggests the Tribunal only has the Applicant’s word that he is the biological father of the twins, the Tribunal is prepared to accept that he is.

75.     The twins are aged 12 years approximately and from a former relationship. The Applicant has not identified the twins by name and as a matter of fact, has never met them, although he has expressed a desire to get to know these children upon release as well as financially support them. There is no evidence that he has done so in the past. In relation to the twins, the Tribunal is of the view that there is little likelihood that he will form any meaningful relationship with them in the future and their best interests are relatively neutral in terms of whether the Applicant remains in Australia.

76.     The Applicant has a son with his current partner. The child, identified for the purposes of this decision as G, was born in 2021. The Applicant has been involved in the child’s life since birth and the Tribunal is satisfied that the best interests of G would be served by cancellation of the revocation decision.

77.     A step-daughter, D, is someone with whom the Applicant has had some positive connection and the Tribunal accepts that this, if possible, should continue similarly but to a lesser extent than G. This child’s best interest would be served by revocation of the cancellation decision.

78.     The Applicant has a cousin, otherwise described as an adopted sibling, S, approximately 16 years of age. Although there are other persons who fulfil a parental role in respect of this child, the Applicant has had the type of contact that has made him an important person in the child’s life. His best interests would be served, the Respondent accepts, by being physically present in the child’s life. The Tribunal also agrees with the Respondent’s submission that, in respect of this child, less weight should be given to this relationship because there are others in the child’s life who fulfil a parental an emotional role.

79.     There are two step-sons, V and D, and another step-daughter, V, who are relevant to this consideration. They have lived in another state with their maternal grandmother and the Applicant has never physically met all three. The Tribunal accepts that it is in their best interests for the Applicant to remain in Australia because of the nature of the contact, which has been by video and telephone with these children, and that that contact has been not insubstantial.

80.     Taking the interests of all these children into account, and particularly that of his son, G, the Tribunal considers that this consideration carries weight in the Applicant’s favour.

Primary Consideration 4 – Expectations of the Australian community

81.     Paragraph 8.4(1) of Direction No. 90 provides as follows:

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 not to allow such a non- citizen to enter or remain in Australia.

82.     Paragraph 8.4(2) also provides that it may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

(a)   acts of family violence; or

(b)   causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

(c)   commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

(d)   commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

(e)   involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

(f)    worker exploitation.

83.     The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub- paragraph 8.4(3)).

84.     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 (sub-paragraph 8.4(4)).

85.     This consideration has been the subject of extensive judicial discussion and ultimately determinative (see FYBR v Minister for Home Affairs [2019] FCAFC 185). Although these principles are discussed in relation to the former Direction No. 65, those principles are not relevantly different in principle with respect to Direction No. 90.

86.     It is not for the Tribunal to substitute its own view for the expectations of the Australian community by reference to the Applicant’s circumstances. The Tribunal rather, must give effect to the ‘norm’, relevantly now stipulated in Direction No. 90 at sub-paragraph 8.4(1): per Stewart J at [68] and Charlesworth J at [93] & [100] to [104] referring to the relevantly similar provision in the previous Direction No. 65.

87.     This consideration must weigh against the Applicant but in the circumstances discussed in this case above, for reasons relating to the Applicant’s childhood background experiences and mental health issues, this consideration is not determinative of this application.

Other considerations

88.     A decision-maker must also take into account Other Considerations where relevant. These considerations include (but are not limited to) (paragraph 9(1) Direction No. 90):

a)international non-refoulement obligations;

b)extent of impediments if removed;

c)impact on victims;

d)links to the Australian community, including:

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

(ii)impact on Australian business interests.

International non-refoulement obligations

89.     The considerations at paragraph 9.1 of Direction No. 90 include (but are not limited to):

(1)A non-refoulement obligation is an 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. Australia has Convention and Protocol non-refoulement obligations.

(2)In making a decision under s 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct.

(3)However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa.

(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 or refusal of their visa in a request to revoke 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 non­refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non­refoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.

(7)Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the non­citizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.

(8)If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia's international non­refoulement obligations.

90.     As has been discussed above, the Tribunal accepts the description of childhood experiences and is also prepared to accept the Applicant’s fear of returning to Sierra Leone. It is unnecessary to detail the evidence that has been given in this Tribunal and which is before the Tribunal in written form both by the Applicant and by objective material.

91.     The Tribunal accepts that the Applicant is someone to whom Australia’s non-refoulement obligations apply, that is, someone who belongs to a class or category of person who may be subjected, in this case, to violence of a serious but unspecified type should he be returned to Sierra Leone.

92.     It is correct to say that such a finding at law may not necessarily revoke the cancellation decision, the subject of this application. However, the Tribunal is in no doubt that should the Applicant make a Protection Visa application, which he would be entitled to do should this application fail, that he is likely to be in detention for an indeterminate period of time for the assessment of that protection application.

93.     The Tribunal is further of the view that the Applicant’s mental health, which the Tribunal accepts is a real and present problem for the Applicant, will be adversely affected should he make an application for a Protection Visa and the consequential and necessary prolonged detention that he will have to undergo should such an application for a protection visa be made.

94.     On the whole of the evidence on this topic, the Tribunal is satisfied that this consideration weighs strongly in the Applicant’s favour and strongly in favour of revoking the mandatory cancellation.

Extent of impediments if removed

95.     Paragraph 9.2(1) of Direction No. 90 provides:

(1)Decision-makers must consider the extent of any impediments that the non­citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

a)     the non-citizen's age and health;

b)     whether there are substantial language or cultural barriers; and

c)     any social, medical and/or economic support available to them in that country.

96.     The Tribunal is of the opinion, on the whole of the evidence, that the Applicant would have difficulties in re-establishing himself in Sierra Leone because of his background and his role as a child soldier for rebel forces. This is so, even although, many years have passed since he left Sierra Leone.

97.     Although objectively the Applicant is someone who could work and live in the country of his birth, nonetheless, the Applicant’s unique circumstances present a problem in a social and economic sense for him resettling in Sierra Leone.

98.     Furthermore, the Applicant’s accepted mental health issues, in the Tribunal’s opinion, would be likely to be made the more severe, particularly concerning his own genuine fear of reprisals in his home country, should he be returned to his country of birth.

99.     For these reasons, the Tribunal considers that this consideration weighs strongly in the Applicant’s favour for the mandatory cancellation to be revoked.

Impact on victims

100.    Paragraph 9.3(1) of Direction No. 90 provides:

Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims…

101.    There is no evidence to indicate that this consideration is relevant to this review.

Links to the Australian community

102.    Reflecting the principles of Direction No. 90 at paragraph 5.2, decision-makers must have regard to Direction No. 90, paragraphs 9.4.1 to 9.4.2 provided below.

9.4.1.   The strength, nature and duration of ties to Australia

(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non­ citizen has to the Australian community. In doing so, decision-makers must have regard to:

a)    how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and

ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.

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

103.    The Tribunal recognises the imminent operation of the new Direction No. 99, which replaces Direction No. 90 on 3 March 2023. It is unnecessary because of the view that the Tribunal has formed in relation to this consideration, for the Tribunal to decide the extent, if any, to be given to Direction No. 99 in this hearing. The Tribunal gives Direction No. 99 no ambit of operation in this decision.

104.    The Applicant has lived in Australia since 2007 and has worked and has a good work history in Australia. He has family here and is, at the time of hearing, presently in a meaningful relationship with his female partner who gave oral evidence in the hearing and is supportive of him. The Applicant is also, the Tribunal accepts, deeply committed to his child of that relationship. There are other family connections, including other children to whom the Applicant has a biological connection, step-children, and other relatives.

105.    The Applicant arrived in Australia as a 14 year old and those family members in Australia will likely be emotionally distressed and experience emotional hardship if the non-revocation decision is affirmed.

106.    The Applicant is accepted by the Respondent as someone to whom some weight should be given in respect to this consideration. The Tribunal, likewise, considers that this consideration weighs strongly in the Applicant’s favour.

9.4.2    Impact on Australian business interests

(3)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

107.    There is no evidence to indicate that this consideration is relevant to this review.

Conclusion

108.    This application has presented the Tribunal with a particularly difficult decision. There are a number of strongly competing factors which are even more complicated by the evidence and attitude evinced by the Applicant in the course of his oral evidence. As has been explained above, the significant problems presented by the Applicant’s oral evidence and concerns about his credibility have made more difficult the ultimate decision and made more precarious that decision as well.

109.    Ultimately, and not without some considerable hesitation, the Tribunal has come to the conclusion that the factors that weigh in the Applicant’s favour far outweigh those considerations, particularly Primary Consideration 1 and Primary Consideration 4, which suggest that the mandatory cancellation should continue.

110.    The Applicant’s ties to Australia and the presence of relevant minor children, including his son, are factors which carry weight. However the most powerful factor, in the Tribunal’s view, is not simply the operation of Australia’s non-refoulement obligations but concerns for the Applicant’s mental health should he be returned to Sierra Leone and the real consequences, including physical violence to the Applicant, should he be returned to Sierra Leone. It is of some weight, in the Tribunal’s opinion also, that the Applicant has lived in Australia since he was a teenager.

111.    All of these latter considerations significantly outweigh Primary Consideration 1 and Primary Consideration 4, and the Tribunal is in no doubt that the mandatory cancellation of the Applicant’s visa should be revoked.

Order

112.    The Tribunal sets aside the reviewable decision of the delegate of the Minister dated 8 December 2022 not to revoke the mandatory cancellation of the Applicant’s Global Special Humanitarian (Subclass 202) visa. In substitution, the Tribunal decides that the cancellation of the Applicant’s Global Special Humanitarian (Subclass 202) visa is revoked.

I certify that the preceding 112 (one hundred and twelve) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin KC

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

Associate

Dated: 28 February 2023

Date(s) of hearing:	20 February 2023
Counsel for the Applicant:	Mr L Karp
Solicitor for the Applicant:	Ms J Schulman, Legal Aid NSW
Solicitor for the Respondent:	Mr M Daly, Mills Oakley