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

[2020] AATA 3497

XMZH  and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3497 (8 September 2020)

Division:GENERAL DIVISION

File Number(s):      2020/3770

Re:XMZH

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member

Date:8 September 2020

Place:Sydney

The reviewable decision made on 16 June 2020, being the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the cancellation of the Applicant’s Class XB subclass 204 Woman at risk visa is set aside.  It is substituted with a decision to revoke the mandatory cancellation of the Applicant’s Class XB subclass 204 Woman at risk visa.  

..............................[sgd]..........................................

Mr S Evans, Member

CATCHWORDS

MIGRATION – mandatory cancellation of visa – character test – substantial criminal record – primary considerations – other considerations – protection of the Australian community – risk of reoffending – best interests of minor children – expectations of the Australian community – international non refoulement obligations – strength nature and duration of ties – extent of impediments if removed – decision under review set aside and substituted

LEGISLATION

Migration Act 1958 (Cth) ss 501, 501CA

Administrative Appeals Tribunal Act 1975 (Cth) s 18B

CASES

DKXY v Minister for Home Affairs [2019] FCA 495

FYBR v Minister for Home Affairs [2019] FCAFC 185
Leha v Minister for Immigration [2000] AATA 1054
Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIALS

Direction No. 79 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

REASONS FOR DECISION

Mr S Evans, Member

8 September 2020

INTRODUCTION

1. XMZH ( “the Applicant”) is a national of Liberia who arrived in Australia as the holder of a Class XB subclass 204 Woman at risk visa (“the visa”) in 2013.

2. On 22 July 2019 the Applicant was convicted of drive motor vehicle during disqualification period 2nd+off, special category driver drive with special range PCA 2nd+off, drive motor vehicle during disqualification period 2nd+off for which he was sentenced to an aggregate term of imprisonment of 15 months with a non-parole period of 10 months.  He was further disqualified from driving for 12 months and required to participate in alcohol interlock program for 12 months.

3. On 11 November 2019 the Applicant’s visa was cancelled under 501(3A) of the Migration Act 1958 (Cth) (“the Act”). He made representations requesting the revocation of the cancellation of his visa under s 501CA(4)(a) of the Act.

4. On 16 June 2020 a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Respondent” or “the Minister”) made a decision not to revoke the mandatory cancellation decision under s501CA(4)(b) of the Act. The Applicant sought review of the decision not to revoke the mandatory cancellation with the Administrative Appeals Tribunal (“the Tribunal”).

   The hearing

5. The Applicant gave evidence under affirmation at the hearing and appeared via audio visual link from the Immigration Detention Centre in which he is being housed in accordance with the COVID-19 Special Measures Practice Direction given under section 18B of the Administrative Appeals Tribunal Act 1975 (Cth). His representative and that of the Minister appeared via audio visual link and witnesses provided evidence under affirmation by telephone.

   THE LAW

6. Under section 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if:

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

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

   …and  

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

7. The character test referred to in section 501(3A) is outlined in section 501(6) of the Act. Relevantly, section 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by section 501(7)).

8. For the purposes of section 501(6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.

9. Revocation of the mandatory cancellation of visas is governed by section 501CA(4) of the Act. Relevantly, this 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.

10. Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.  

    Ministerial Direction No. 79

11. When considering whether or not to revoke a mandatory cancellation decision under section 501CA(4), paragraph 7(1) of Ministerial Direction No. 79 (“the Direction”) sets out how the discretion is to be exercised. It states:

    (1)  Informed by the principles in paragraph 6.3…, a decision-maker:

    ...

    b) must take into account the considerations in Part C, in order to     determine whether the mandatory cancellation of a non-citizen’s visa will      be revoked.

12. Part C of the Direction sets out the primary and other considerations that must be taken into account, where relevant, when deciding whether to revoke a mandatory cancellation. The primary considerations should generally be given greater weight than the other considerations. The primary considerations as set out in paragraph 13(2) of the Direction are as follows:

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

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

    (c)expectations of the Australian community.

13. The other considerations which must be taken into account where relevant are outlined at paragraph 14 of the Direction. These considerations are:

    (a)international non-refoulement obligations;

    (b)strength, nature and duration of ties;

    (c)impact on Australian business interests;

    (d)impact on victims; and

    (e)extent of impediments if removed.

    ISSUE BEFORE THE TRIBUNAL

14. There is no question that the Applicant made the representations required by section 501CA(4)(a). Consequently, it must be determined whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised.

15. The Applicant does not pass the character test prescribed under section 501(6)(a) of the Act as he has been sentenced to a term of imprisonment of more than 12 months, and therefore has “a substantial criminal record” as defined under s 501(7) of the Act.

16. Therefore, the issue for the Tribunal to determine is whether, having regard to the Direction, there is another reason why the mandatory cancellation of the Applicant’s visa should be revoked.

    BACKGROUND AND EVIDENCE

17. Born in September 1992 the Applicant was cared for by his mother after they were separated from the Applicant’s father in 2002.  His mother took him from “town to town” until she died in 2006 having fallen ill and being unable to obtain medical treatment.  Following the passing of his mother, the Applicant was cared for by an aunt who took him to a refugee camp in the city of Danane in the Ivory Coast where he lived from age 14 until shortly before he immigrated to Australia.[1] 

    [1] Exhibit A2, Applicant’s statement dated 29 July 2020.

18. The Applicant was sponsored to immigrate to Australia by his father who had immigrated in 2008.  The Applicant was granted a visa after he applied for an Offshore Humanitarian visa (Refugee and Humanitarian Class XB) in March 2010.  The Applicant was 20 years of age when he arrived in Australia in May 2013. 

19. The Applicant lives and works in NSW in the same town as his father.  He is the father to two young children, a father figure to a step-child, and engaged to be married. 

20. In his request for revocation of the mandatory cancellation dated 11 November 2019 the Applicant outlines his case for revocation where he writes in part:

    I am a refugee who want through many abuse in life my mother die through sexual abuse right in front of me at the age of 15.  Sometime being a kids watching or seeing such thing happening to your mother still affect my life.

    I have nowhere to go, no mother - my father is in Australia, my kids, partner, friends they all live here in Australia.  I have no want to live with if I get removed from Australia.  My life will be at risk if I return back…

    I am deeply sorry of my behaviour I promise not to repeat this again. [2]

    [errors in original]

    [2] G5/46.

    References

21. The following witnesses provided written statements in support of the Applicant’s application and gave oral evidence before the Tribunal by telephone. 

    The Applicant’s father

22. In a written submission the Applicant’s father refers to the Applicant’s offending subsequent to 2016 as the result of a “mix up”, which is a reference to the driving offences that occurred following the completion of the traffic offenders course, which I will come back to.  The Applicant’s father wrote that he regards his son’s “main problem” as being the loss of his mother in Africa followed by the 2016 loss of his aunt who raised him subsequent to his mother’s death.  

23. During the hearing the Applicant’s father was asked about the extent of his son’s alcohol use and if he had known the extent of his drinking, the Applicant’s father told the Tribunal:

    True speaking, he [the Applicant] doesn’t want me to know about it, because why?  This is not what I brought him in this country for.  I brought [the Applicant] to this country to have better education, yes, for [the Applicant] to improve his life, because we suffer a lot during the civil war.  We suffered a lot so I brought him to this country to become a productive human being.  Australia is a peaceful country.  Australia is a very good and peaceful country.  If you respect the law in this country and you respect the people here.  So, I brought [the Applicant] in this country to become a productive person.[3]

    [3] Transcript 21 August 2020, p 107.

24. He writes that the Applicant is now back on track and he would be “grateful” if his son is allowed to stay in Australia as he is aging and would “love my son, grandson and granddaughter to be together with me as I have no wife or partner”. 

25. He confirmed that the Applicant does not know anyone from Liberia or the Ivory Coast and told the Tribunal he is willing to do whatever he could to help his son in his rehabilitation and efforts not to reoffend.  Describing his son the Applicant’s father said:

    He is hardworking.  He is hardworking, the company love him.  He is a very young man, very strong, hardworking.  He is very strong and hardworking, good human being… Alcohol is [the Applicant’s] problem, this is way I’m looking at, [the Applicant] is hardworking, he love his people, he love the children.  But alcohol, this is where I’m looking at.  Any time, if God were happy to release from where he is today, the next day, he will rather [the Applicant] is working and I would be responsible for that.  I will carry him to work and I will bring him from work.[4]

    [4] Transcript 21 August 2020, p 109.

    The Applicant’s partner

26. Ms C has been the Applicant’s partner for three years and the couple are engaged to be married.  They have a daughter together.  The Applicant submits that they plan to live the rest of their lives together.  He says that Ms C cries when she comes to visit him with his daughter and that she says that she cannot live without him around his daughter.  He says that she says that he is supportive of her. She confirmed also it was their intention to live together as a family should the Applicant be allowed to remain in the community. 

27. Ms C said that she is currently unemployed and that she and her children relied on the income brought in by the Applicant. She hopes that his visa will be reinstated and that they can get a house together which will also have room for the Applicant’s father to live with them and their children.  In a written submission she writes in part: 

    We are deeply sorry, but [the Applicant] is the bread winner of the household until I get back on my feet.  We don’t know how we will manage if he is not around for support, I have a child from previous relationship and the child [the Applicant] and I have and his other child from a previous relationship they all depend on him and this will greatly affect them and which it already has but we don’t want to imagine the worst. 

    Mr N

28. Mr N is a “Senior of the Liberian community” who has lived in the same town in NSW that the Applicant and his father have been living in for 15 years.  He writes that he has known the Applicant’s father for ten years and the Applicant for three. 

29. According to Mr N, the Applicant settled into the community well but this changed in June 2016 when he lost his aunt, which he describes as a sad situation which the Applicant did not handle well.  He notes that the Applicant started drinking “while continuing to drive”.  Prior to this, Mr N writes that the Applicant was working hard not to drive and was being transported by Mr N to work and social engagements.  He attributes the Applicant’s offending to confusion over “documentation” which led the Applicant to believe he was eligible to drive.[5] 

    [5] G5/84.

    Mr D

30. Mr D is a support worker from the local multicultural community group and writes that the Applicant has been a client since his arrival in Australia in 2013.  He writes that the Applicant studied English when he first arrived in town and explains that his driving whilst disqualified in 2019 was due to the Applicant attending a traffic offenders course and mistakenly believing he was able to drive upon completion of the course.  This, he writes, was compounded by the Applicant moving house and consequently not receiving correspondence by mail.  Noting the Applicant’s carelessness, he writes that his “progress has been solid” and the Applicant has “never been aggressive or anti-social”. 

31. In a written submission Mr D writes that the Applicant’s father is anxious and broken hearted at his son’s predicament.  He writes that deportation would severely disadvantage the Applicant and his children.  If he is released back into the community Mr D states that he and others at the community group will support the Applicant and ensure “he stays on the right path”. 

    PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT

32. The Direction notes the government’s objective is to protect the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.  In considering the protection of the Australian community I am required to take into account the nature and seriousness of the Applicant’s conduct to date and the risk to the Australian community should he commit further offences or engage in other serious conduct. 

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

33. The Applicant’s conduct to date involves a series of driving offences and a conviction for common assault (DV).  The National Police Certificate dated 2 October 2019 is summarised below:

Date	Offence	Sentence
22 July 2019	Drive motor vehicle during disqualification period – 2nd+off Drive motor vehicle during disqualification period – 2nd off Special category driver drive with special range PCA-2nd +off	Imprisoned 15 months, non parole period 10 months
26 June 2019	Drive motor vehicle during disqualification period – 2nd off (x2) Drive with low range PCA – 2nd off	Intensive corrections order of 12 months, disqualified from driving 12 months and fined.
21 November 2016	Use an unregistered Class A motor vehicle on road (x2) Drive mother vehicle during disqualification period – 2nd + off (x2) Use uninsured motor vehicle Special category driver drive with special range PCA – 2nd off Drive with high range PCA – 2nd + off Drive motor vehicle during disqualification period – 2nd + off	Imprisoned for 6 months, 14 months, 5 months and 13 months.
15 August 2016	Use unregistered registerable Class A mother vehicle on road (x 3) Drive with high range PCA – 1st off (x2) Drive etc when visiting privileges withdrawn – 1st offence (x2) Drive with low range PCA – 1st offence Class A m/v exceed speed greater than 20km/h – radar	S9 bond (2 years), an intensive corrections order of 8 months and a driver disqualification of 6 and 18 months
9 October 2015	Common assault (DV) -T2	$1000 fine

1. The Applicant arrived in Australia in May 2013.  By October 2015 he had made his first appearance in court for the assault charge resulting from an incident which occurred in April that year.  The Applicant was fined $1000 in the Local Court and a 12 month Apprehended Domestic Violence Order was imposed for the offence which involved his former partner who is also the mother of his son. It is recorded in the NSW Police Report that the Applicant and his then partner were arguing about his partner’s use of her mobile phone and the need to feed their son.  It is recorded that the Applicant agreed with the victim’s account of events but denied that he had punched or slapped the victim as she had claimed.  The Applicant maintained his version of events when asked about them during the hearing. 

2. The facts of the matter are that the Applicant pleaded guilty to the charge though he contends he was not fully cognisant of the implications of his plea.  Based on the facts before the Tribunal I accept the account of events as set out in the NSW Police Fact Sheet of April 2015 and note that crimes of a violent nature against women are viewed very seriously. 

3. I have taken into account that the Applicant has continued to offend after being issued a section 9 bond and intensive corrections order in August 2016.  In June 2019 the Applicant was again given an intensive corrections order and he reoffended the following month. 

4. The seriousness of the Applicant’s offending is reinforced by the sentences imposed upon him.  Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offence involved.  In the Applicant’s case he has been required to serve two terms of imprisonment. 

5. I am also required to consider the frequency of the Applicant’s offending.  The Applicant’s offending has been consistent throughout his time in Australia.  I note and agree with the observations of the Magistrate when sentencing the Applicant on 22 July 2019:

   when I looked at his record, it is an appalling record.  This is his seventh drink-driving matter in a period of three years.  High range drink-driving, 16, 16, low range 17, high range 16, special range 16, low range 19 and then the matter is before the court today …

   drive disqualified 2^nd+ offence is three times in 2016, twice already in 2019 plus the two further matters for sentence.  He is under current intensive correction orders which were imposed only weeks prior to the current offences.  The only appropriate sentence for drive disqualified matters is imprisonment.  I allow a discount of 25% for the early plea.  However given the record it is a significantly aggravating factor in these circumstances.

   [emphasis added]

6. When considering the Applicant’s record, the seriousness of the driving offences is aggravated by their frequency.  It is also extremely concerning that it is reported the Applicant had others including children in the vehicle on two of the occasions when he was driving while under the influence of alcohol. 

1. Additionally, the Applicant was apprehended whilst driving under the influence of alcohol whilst suspended twice on the same day on 22 May 2016.  His flagrant disregard for the road rules is extremely concerning. 

2. I note also that the Applicant was warned that his visa may be cancelled again following the revocation of the mandatory cancellation of his visa in April 2017.  He acknowledged at the time that he could again be considered for cancellation of his visa but continued to offend. 

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

3. The Tribunal must have regard to the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct and the likelihood of him engaging in further criminal or other serious conduct. 

   The nature of future harm

4. The nature of the harm to the Australian community should the Applicant engage in further misconduct of the nature in which he has engaged in the past would be extremely serious.  When considering the Applicant’s risk of reoffending, it is of great concern that the Applicant has continued to offend with increased frequency the same types of offences.

5. The risk of further drink driving offences increases the risk of harm to other road users and can include serious and permanent disability or death.  There is no doubt that there is significant risk to the community should the Applicant continue to offend. 

   The likelihood of the Applicant engaging in further criminal or other serious conduct

6. The Applicant accepts that the offences he committed are serious and submits that he is unqualifiedly remorseful in committing such offences.  He asks that the Tribunal consider mitigating factors which include the trauma he suffered since childhood and prior to his arrival in Australia and since.  He was separated from his father in 2002 and went with his mother who was moved to a refugee camp and then her subsequent death and separation from the rest of his family before he came to Australia. 

7. The Applicant said that his offending is the consequence of his difficult background as he was raised in a refugee camp.  He says that he had a “PTSD type reaction” to the death of his aunt in 2016.  In relation to the driving offences the Applicant submits:

   I started traffic offending when I lost my aunt the lady who were there for me when I lost my mother[6]

   [6] Exhibit A3, Applicant’s statement dated 27 July 2020.

8. The Applicant attended a traffic offenders course following his release from prison in 2018 on the recommendation of his parole officer.[7]  He writes that this was to gain an additional understanding of traffic laws but it left him with “confusion” as having finished the course he thought he was able to drive, even though his license was suspended.  He was, he writes, under the impression he could use his overseas license for six months before he could “reapply for an Australian license”.  The confusion was compounded as the Applicant did not receive his mail for a period after he moved house to live with his fiancé.  He writes:  

   In 2018 I attended the Traffic Offender Course while reporting to probation and parole as believed that I could drive in six months (mid-2019 in July I was arrested) after the course was completed this turned out not to be accurate as some letters were sent to my residence but I had left to live with my fiancée … I fully acknowledge that I should have checked with both the local RTA as could not believe I was incarcerated again as has a small family.[8]

   [7] G5/70.

   [8] G5/72.

9. At the hearing the Applicant also explained that his driving whilst disqualified was in part attributable to the colleague who he had arranged to drive him to work not being available to do so.   

10. The Applicant’s offending includes seven separate instances of driving with a prescribed concentration of alcohol (“PCA”) above the limit.  The Applicant concedes that he has a problem with alcohol.  He says he has a particular vulnerability to alcohol where taking a small amount of alcohol required him to drink more which then led to him offending. 

11. The Applicant was twice afforded an opportunity to participate in rehabilitation but he declined to participate on both occasions.  Questioned about this at the hearing the Applicant confirmed that in May 2016 - following his fourth drink driving offence - it was recommended that he explore alcohol and other drug (“AOD”) intervention.[9]  He confirmed that he did not do so at the time, which he attributed to a lack of suitable courses in the corrections centre.  He said he studied English and computer studies instead, and certificates of completion are before the Tribunal.[10] A pre-sentence report prepared in November that same year shows that when challenged about the recurring nature of his offending, the Applicant identified alcohol as a factor.  It is documented that at that time the Applicant “reported he intended to seek admission to an Alcohol and Other Drug (AOD) residential rehabilitation program upon his release from custody and asserted he had talked with a case worker about the prospect of applying to [a] Drug and Alcohol Centre…” The officer writes that when queried regarding the status of his enquiry he conceded he had not actioned any formal application or undertaken a phone assessment at that juncture.[11]   

    [9] Exhibit R2, Respondent’s tender bundle, p 30.

    [10] G5/75-77.

    [11] Exhibit R2, Respondent’s tender bundle, p 96.

12. Following his arrest on 27 August 2016 the Applicant was referred to the MERIT program on 13 September 2016 and it is recorded that he was assessed as suitable on 12 October that year.[12]  Asked at hearing if he had attended the Applicant confirmed that he had not. 

    [12] Exhibit R2, Respondent’s tender bundle, p 97.

13. The Applicant writes that his family is very disappointed in him in the circumstances that he finds himself in.  He says that they all hope that he would care for them and that if he is deported then they will suffer too.  In spite of his record he contends that there is “no risk” of him reoffending in the future.[13] He told the Tribunal:

    …I gonna be in control of myself and never go back to where I’m going.  My father will give me the hand every time to work.  I want to be there for work.  If I want to go and see my son, my father will help me to go there and get my son or the mother will help how she used to do it before because they all know my condition.  I wouldn’t be able to drive now, I can’t go back in the car.  I would never take the risk so - and I will ask them to do all these things for me or I can get a taxi, no problem and (indistinct) I can’t go in the car.  I would never do that.[14]

    [13] G5/59.

    [14] Transcript 21 August 2020, p 90.

14. The Applicant concedes that he kept his problem with alcohol from his father and his partner.  I note also that Mr D was also unaware of the extent of the problem.  Ms C confirmed that this was the case.

    Self-medicating with alcohol to numb the pain of my losses as I now fully acknowledges this now as my incarceration has impacted myself, my father, children and my fiancé…[15]

    [errors in original]

    [15] G5/73.

    Report of Mr C

15. Registered psychologist Mr C assessed the Applicant in August and his report is before the Tribunal.  Mr C’s report considers the Applicant’s offending and also his alcohol use.  After observing that the Applicant first drank alcohol following the birth of his son, he reports that the Applicant completed the World Health Organisation Alcohol Use Disorders Identification Test on which he scored 8 out of a possible 40, where a score of 8 or more is considered to indicate hazardous or harmful alcohol use. 

16. Having assessed the Applicant, he concludes that he does not fully meet the criteria for PTSD but may still have some underlying symptoms, complicated by past grief.  Mr C opines that the results of his risk assessment indicate that the Applicant falls in the low/moderate risk range for overall risk needs offences.  Mr C continues:

    It is noted that low/moderate risk range is heavily attributed by his [the Applicant’s] protective factors.  These include having a stable relationship with his family, religious commitment, intended driving support from his father and partner should he leave detention, and intention to resume employment. 

17. He recommends, however, that the Applicant engage in treatment for his underlying symptoms.  Questioned about this at the hearing Mr C said that the Applicant would benefit from psychological treatment to educate him regarding decision making skills and further cognitive behavioural therapy (“CBT”) which he suggested should be at a minimum every fortnight. 

    Discussion

18. Based on his account, which is verified by his father and Mr D, I accept that the Applicant was heavily impacted by the loss of his aunt in 2016 and had a difficult and traumatic childhood.  It is apparent that he completed the traffic offenders course as reported, and it may well be that he did not receive some of his mail. 

19. In considering the facts I am not satisfied that these factors in isolation or together provide an explanation for his offending such that their absence would indicate the Applicant will not engage in further criminal conduct should he return to live in the Australian community. 

20. It is difficult to accept that the Applicant genuinely believed that he was licensed to drive when he was stopped on 27 March 2019.  On that occasion he once again produced a Guinean license and the NSW Police Fact Sheet records that at that time the Applicant was disqualified from driving in NSW until December 2035. 

21. I note also that the NSW Police Fact Sheets record that the Applicant was consistently providing police with a Guinean drivers license from May 2016 through until his most recent driving offence in July 2019, which is a period of over three years, not the six months in which he says he thought he was eligible to use his foreign license.  He has also provided excuses to police for driving without a license which included a requirement to take his girlfriend’s car to the mechanic in July 2019 and to get medication.  Providing these excuses indicates that the Applicant was aware he was not licensed to drive at the time. 

22. Additionally, as mentioned the Applicant was apprehended whilst driving under the influence of alcohol whilst suspended twice in one day in May 2016.  There can be no confusion about the status of his license in such circumstances and I accept the Respondent’s contention that the Applicant lacks insight into his driving offences. 

23. In relation to the likelihood of reoffending, it is relevant that the Applicant now acknowledges his problem with alcohol.  The Applicant did not have any experience with alcohol when he arrived in Australia in 2013 and took his first drink following the birth of his son in 2015.  I note that almost all of the Applicant’s driving offences involve driving under the influence which confirms the Applicant was drinking at the time of his offending.  The Applicant told me that he did not fully appreciate his issue with alcohol and how it affected him. 

24. Importantly, the Applicant’s problem with alcohol is now understood and acknowledged by those who are best placed to support him as he seeks to rehabilitate himself, specifically his father, Ms C and Mr D.  Where shame and his difficult life story provided a plausible rationale which gave cover to his drinking problem, perhaps for the first time the Applicant’s alcohol abuse is understood and acknowledged by him and those around him.  The Applicant’s father lives a short walk from the Applicant and they share the same employer.  Asked about the prospect of the Applicant reoffending, the Applicant’s father told the Tribunal:

    So I would see, I would make sure and see to it that [the Applicant] would never ever, he would never ever - I will say that again, he will never ever sit or sat in any car in this country,  to go to work, I will carry him to work and I will bring him by home and I will make sure that [the Applicant] would never ever drive on his own in this country until the Australia driver licence, please, my brother.[16]

    [16] Transcript 21 August 2020, p 96.

25. Whilst I accept the Applicant’s father’s determination and intent and it provides some confidence that the Applicant may not offend in the future, it in and of itself is insufficient to mitigate the likelihood of the Applicant reoffending. 

26. As mentioned the Applicant was warned that his offending was jeopardising his visa status in Australia and his visa was cancelled previously.  However, I accept that the Applicant was perhaps not fully cognisant of the seriousness of the threat to him remaining in Australia as a result of the previous cancellation.  As noted by his representative on that occasion his visa was cancelled on 21 February 2017 and the cancellation revoked on 28 April 2017.   

27. The events leading up to the current matter are substantially different.  The Applicant has been sentenced to and served a lengthy period in gaol beginning July 2019 and concluding May 2020.  This was followed by an extended period in immigration detention.  The Applicant has through this process been made aware of the seriousness of his offending, his visa was cancelled and he has lived for many months with the very real possibility that his visa cancellation would not be revoked.  It was clear to the Tribunal that this had caused the Applicant to seriously consider what would happen should he lose the right to remain in Australia and the considerable impact that would have not only on him, but his father, children and partner. 

28. Ms C in particular was observant of the Applicant’s alcohol use and detailed his gradual decline into daily use where initially he drank only on weekends.  She said that he was drinking one full bottle of Passion Pop wine each day. 

29. She said that she would encourage him to see a counsellor.  She believes also that if the Applicant’s father told the Applicant to do something he would do it.  She confirmed that he was driving every day to work.  She said that she has no concerns about the Applicant’s temper but she did think his drinking was related to depression.  Asked about her confidence in the future she said that she was concerned particularly about the financial impact of the Applicant not being available and confirmed that his absence had already made it difficult for her to manage financially. 

30. It is to the Applicant’s credit that he has consistently worked since arriving in Australia.  His assurances that he loves working and that there is work for him which has been promised by his general manager upon his release weighs in his favour as it will enable him to potentially fulfil his promises to his family and his children.  I consider also that his consistent work record indicates that the Applicant has a degree of discipline and regard for his responsibilities that is not apparent when considering his offending in isolation.  This resolve may assist in him addressing his drinking problem. 

31. The Applicant submits that he is prepared to enter rehabilitation and do what is required to maintain his sobriety and stop him from reoffending.  In relation to rehabilitation the Applicant told the Tribunal that he will seek counselling to address his alcohol use as he has come to realise how much damage it has done in his life.  These sentiments are not dissimilar to those which were expressed prior to his reoffending in the past and I note the absence of specific detail as to what he may have planned. 

32. In summary, I consider the following factors support a finding that the Applicant is less likely to reoffend should he return to live in the Australian community:

    (a)he has spent 10 months in gaol followed by an extended period in immigration detention away from his family; 

    (b)there is no evidence before the Tribunal which indicates he has taken drugs or alcohol during the period in which he has been in gaol and detention;

    (c)the acceptance by the Applicant that he has an inability to use alcohol in a measured and controlled manner;

    (d)the knowledge that deportation is a very real prospect after his visa has been cancelled and the mandatory cancellation was not revoked;

    (e)the awareness of those who are closest to him of the full extent of the Applicant’s problems with alcohol and his inability to address the problem without ongoing intervention and support;

    (f)the willingness of the Applicant’s father and Ms C to work intensively with the Applicant to address his drinking and ensure that he does not drive a motor vehicle;

    (g)his preparedness to enter treatment for his alcohol abuse;

    (h)the support which will be available to the Applicant from his father and fiancé;

    (i)the knowledge that if he is deported he will have no contact with his children and he will be unable to provide support and care for them;

    (j)the knowledge that if he were to be deported to Liberia he would have no family, friends or support there;

    (k)his strong work ethic which is indicative of a capacity to meet his responsibilities and obligations when motivated to do so. 

33. Whilst I am satisfied that the Applicant has a genuine opportunity to overcome his difficulties with alcohol and his proclivity to offend, the nature of the issues and his track record of refusing treatment offered indicates it will be a significant and ongoing challenge for the Applicant.  I note that if he is released back into the community he will be on parole, but this will eventually expire.  I consider also that his record of drinking and offending whilst under court orders indicates that being on parole may not in itself prove a strong deterrent.    

34. For the above reasons, the primary consideration of the protection of the Australian community from criminal and other serious conduct weighs in favour of not revoking the mandatory cancellation, with some reduction in weight in recognition of the Applicant’s improved rehabilitation prospects. 

    PRIMARY CONSIDERATION B – BEST INTERESTS OF MINOR CHILDREN

35. Clause 13.2(4) of the Direction further stipulates that when considering the best interests of the child, the following factors must be considered where relevant:

    a)    The nature and duration of the relationship between the child and the non-citizen. 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);     

    b)    The extent to which the non-citizen 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;  

    c)    The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;  

    d)    The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;  

    e)    Whether there are other persons who already fulfil a parental role in relation to the child;  

    f)   Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);  

    g)    Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and  

    h)    Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.  

36. The Applicant has two children – a son aged 5 and a daughter who is 18 months old.  Both children are Australian citizens.  He is also stepfather to Ms C’s 7 year old son.    

1. I accept the Applicant’s evidence that his children are everything to him.  He says he loves being around them and they love being around him.  He says that he is motivated to work to make sure that his children have a good future and he wants to be there for them and make sure his children go to school and they receive a good education because he will depend on them when he is retired.  He says that his children along with his father and partner are the only family he has. 

2. The Applicant writes that if he is deported his children will be without a father figure in their lives and they will grow up without knowing who their father is and it will be heartbreaking for him to be separated from his children.  He says his children need him and they want him to be present.  He cannot envisage living without his children in his life. 

3. The Applicant’s son lives with his previous partner but he visits regularly and spends time with the Applicant and is in his care once every fortnight.  When working, the Applicant makes child support payments to support his son. 

4. Ms C confirmed that whilst the Applicant was working he provided for her and her son and their daughter.  She said that whilst the Applicant was in custody and detention she has maintained contact with the Applicant’s son.  She said that the Applicant’s son asks about the Applicant “a lot”.[17]  He has, she said, complained about not seeing the Applicant since he was arrested.   

   [17] Transcript 21 August 2020, p 138.

5. She confirmed that the Applicant is a peaceful and loving person who takes good care of his family, including their daughter and her 7 year old son from a previous relationship.  Both her and the children are dependent on the Applicant emotionally and financially.  She said that her son sees the Applicant as a father figure and speaks to the Applicant on the phone whilst in detention and asks when he is coming home. 

6. The Tribunal accepts that the Applicant plays an important parental role to his son and daughter, and is a father figure to his step-son.  I accept that the Applicant’s intention would be to continue living with Ms C, their child and his step-son should he be released back into the community.  He would also continue to have regular fortnightly contact with his son and continue to care for him. 

7. Having considered the interests of each child separately, the evidence and the relevant factors in the Direction I give substantial weight to this this primary consideration which weighs in favour of revocation. 

   PRIMARY CONSIDERATION C – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

8. Paragraph 13.3 of the Direction provides:

   (1)  The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government's views in this respect.

9. In YNQY v Minister for Immigration and Border Protection (“YNQY”),[18] Mortimer J said:

   76. In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.

   [18] [2017] FCA 1466.

10. Since the judgement in YNQY, the Federal Court delivered its judgement in DKXY v Minister for Home Affairs (“DKXY”).[19] After referring to the relevant paragraphs of the reasons in YNQY, one of which I have set out above, Griffiths J said:

    29. These paragraphs in YNQY appear in that part of her Honour’s judgment in which she was addressing a contention that the AAT had erred by failing to make findings and/or take into account as a primary consideration the expectations of the Australian community.

    30. In my respectful view, her Honour’s reasoning in [76] and [77] of YNQY would be plainly incorrect if this reasoning is read as stating that the primary consideration of expectations of the Australian community will always weigh against revocation. The Minister contended that the reasoning simply reflected the facts in YNQY and did not purport to be a construction of Direction 65 as suggesting that the expectations of the Australian community can never weigh in favour of an applicant …

    31. As the applicant here pointed out, there are numerous statements in Direction No 65 which require the primary consideration of expectations of the Australian community to be assessed in the light of all the relevant circumstances which appertain to it and it has to be weighed against all other relevant considerations (while noting that the Direction requires that primary considerations be given more weight than other considerations). In an appropriate case, and depending upon all relevant circumstances, the expectations of the Australian community may not weigh against revocation of the mandatory visa cancellation. Undoubtedly, decision-makers who are bound to give effect to the Direction are required to have due regard to the Government’s view regarding community values, standards and expectations, as set out in, for example, cll 6.2 and 6.3 of the Direction, but nothing in the Direction indicates that community expectations will always favour non-revocation. Indeed, the totality of the relevant circumstances which bear upon the assessment and weighing of all three primary considerations and other considerations need to be considered, as is made clear in many clauses of the Direction, including those which are referred to in [23] above.

    [Emphasis in original]

    [19] [2019] FCA 495.

11. After referring to those paragraphs in Uelese v Minister for Immigration and Border Protection[20] which were relied upon by the primary Judge in YNQY to support the proposition that the primary consideration of the expectations of the Australian community will invariably weigh against revocation of a mandatory cancellation, Griffiths J continued:

    33. … There is nothing in these passages from Uelese which indicates that a primary decision-maker who is bound to apply the Direction cannot also take into account any material which is before the decision-maker which is relevant to an assessment of this primary consideration. The Government’s views have to be taken into account and given “due regard”, but so must all other circumstances which are relevant in the particular case. As Robertson J pointed out in the final sentence at [64] of Uelese, cl 9.3 of the Direction ends by stating that decision-makers should have “due regard” to the Government’s views on Australian community expectations. What amounts to “due regard” will necessarily require attention to be given to all relevant circumstances in the particular case which bear upon a general assessment of Australian community expectations.

    [20] (2016) 248 FCR 296.

12. The Full Court gave further consideration to this question in FYBR v Minister for Home Affairs.[21] In that matter, the Court considered clause 11.3 of Direction 65, the predecessor to the Direction which is in the same terms as clause 13.3 of the Direction currently in force.

    [21] [2019] FCAFC 185.

13. In his reasons for dismissing the appeal, Charlesworth J said, in part:

    [61] The proper construction of cl 11.3 turns on two questions. The first is whether or not the clause expresses an expectation deemed by the government to be held by the Australian community. The second is whether the clause gives expression to an expectation that must of its nature weigh against the grant of a visa in every case.

    …

    [67] To the extent that cl 11.3 contains a statement of the expectations of the Australian community, the clause is “deeming”, in the sense explained by Mortimer J in the limited passage from YNQY upon which the Tribunal relied at [54] of its reasons (extracted at [20] above). It is not for the decision-maker to make his or her own assessment of the community expectations and to give that assessment weight as a “primary consideration”. I do not understand the judgment of Griffiths J in DKXY to differ from that of Mortimer J in YNQY in that respect. For my part, I prefer to describe the clause as imputing or ascribing to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.

    …

    [75] Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.

    [76] The question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion. Flexibility in the decision-making process is reinforced by cl 8(4), which requires no more than that the government’s assessment of community expectations is “generally” to be afforded greater weight than the “other considerations” listed non-exhaustively in cl 12. The word “generally” contemplates a case in which the decision-maker considers it appropriate not to afford the expectation of the Australian community more weight than favourable countervailing factors arising for consideration under cl 12. There may be cases in which it is not appropriate to give the community expectations discerned under cl 11.3 any weight at all.

    [emphasis added]

14. In agreeing that the appeal should be dismissed, Stewart J said, in part:

    [90] However, it is not to be expected that the Government of the day would seek, via the device of “community expectations” or otherwise, to dictate to the statutory decision-maker the outcome of a visa refusal or cancellation in any particular case. That would be inimical to the process of decision-making that has been set up under the Migration Act and it would constitute unlawful dictation to the decision-maker:…

    [91] The above contextual factors lead to two guiding considerations to the proper construction of Direction 65. First, “community expectations” as expressed normatively are what the Government says that they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, “community expectations” as expressed by the Government do not speak to the outcome in any particular case – they are to be understood and applied normatively.

    [92] There is also an important structural consideration, which is identified in the reasons of the primary judge (at [39]–[41]) and Charlesworth J (at [73]). It is that community expectations are to be taken into consideration (as a primary consideration) with other factors to inform the decision-maker’s decision. The consequence of that is twofold. First, not every factor relevant to the decision will inform the content of community expectations and, second, the ultimate decision may differ from the community expectations.

    …

    [102] It is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa. In any particular case, the weight to be attached to that consideration because of the particular circumstances of the character assessment may be slight. In another case, because of the severity of the character assessment, the weight may be substantial. Thus, the character assessment, even through the prism of community expectations, may not be decisively against the applicant. In many cases it will not be. That is why the decision-maker must assess what is “appropriate” in the particular circumstances. Nevertheless, an adverse character assessment is necessarily against a visa applicant, to some degree or other; no one will be awarded a visa because they are of bad character.

    [103] The community expectations, as I construe cl 11.3(1), speak normatively; they are to be applied in every case but they are not expressed in relation to any particular case. This means that it would be wrong for the decision-maker to ask themselves a question along the lines of “what would the community expect in this case?” It is also incorrect to construe the community expectation as expressing or requiring, in any particular case, either the grant or the refusal of the visa. In a particularly egregious case, the weight to be afforded the community expectations would be such that a refusal might be thought to be inevitable, and at the other end of the spectrum a refusal might be thought to be unlikely, but in neither case and in all the area in – between the community expectation will not express or require one or the other. That is a matter for the decision-maker.

    [emphasis added]

15. In exercising my discretion, I am also informed by the principle at paragraph 6.3(1) of the Direction that:

    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.

16. In breaking the law repeatedly and doing so over an extended period of time and failing to comply with judicial orders the Applicant has not met the expectation referred to in the Direction. His driving offences have potentially very serious consequences for the community and his offending and reoffending is at odds with the privilege granted to visa holders to remain in Australia. 

17. It is submitted on behalf of the Applicant that there is an expectation that when a person is dealt with by the criminal justice system that they will reform and not reoffend and the Applicant is deserving of a second chance and that this consideration should be given limited weight.  The Tribunal is referred to Leha and Minister for Immigration and Multicultural Affairs[22] where DP McMahon emphasised that “there would be a general expectation in the community that the Act would be administered fairly and humanely”. 

    [22] [2000] AATA 1054.

18. Having regard also for the principle at paragraph 6.3(7) I note that the Applicant has made a contribution to the Australian community through his employment but his contribution has been over a relatively short period given his arrival was in 2013 and his periods in custody. 

19. Given the seriousness of the Applicant’s offending,  the interests of the children and the Applicant’s circumstances which include his problems with alcohol and difficult childhood in Liberia, I consider that this consideration weighs against revocation but is to be afforded less weight as it might otherwise be. 

    Other considerations set out in the Direction 

20. Paragraph 14 of the Direction requires that I take into account other considerations which are relevant to the Applicant’s application. 

    International non-refoulement obligations

21. 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.  The Direction at 14.1(4) requires that where a non-citizen makes claims which may give rise to international non-refoulment obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.  However, I note that this paragraph of the Direction is tempered by recent Federal Court jurisprudence.

22. The Applicant contends that he is a refugee who fears for his safety should he be removed from Australia.  The Applicant contends that his fears are well founded.  He states that his father and grandfather owned 300 acres of land prior to the rebel war in Liberia.  His family worked the land and planted crops on the land.  Following a court judgement in a legal dispute between his family and another family which ruled in the Applicant’s favour, he became the legal holder of the land.  When rebels entered Liberia the other party in the legal dispute joined the rebels.  A prominent member of the other family became a commander with the rebels and subsequently the rebels attacked the Applicant’s family.  In 1990 rebel fighters broke into their home and insulted the Applicant, his father and his mother.  The Applicant’s father was beaten and his mother was raped.  The rebels set the house on fire and jailed both the Applicant’s father and grandfather. The Applicant escaped with his mother and proceeded to head to the Ivory Coast.  He believes that if he were to return to Liberia he would be killed as any member of his family would be.[23]  Whilst the dispute occurred nearly 30 years previously, the Applicant contends that should he be returned to Liberia his life would be in danger as he is the proper owner of the disputed land. 

    [23] Exhibit R3, Respondent’s supplementary bundle, p 14.

23. The Respondent contends that the evidence as it currently stands is insufficient to find that non-refoulement obligations are owed to the Applicant.  The evidence is second hand and the risk is too remote to find that non-refoulement obligations exist.  Further, it is open to the Applicant to make a separate application for protection where his claims could be carefully assessed in this process.  

24. On balance I consider that this factor weighs in the Applicant’s favour to an extent.  The evidence in support of Australia having a non-refoulement obligation to the Applicant is, as described by the Respondent, vague.  The specifics of the Applicant’s account are unverified nor corroborated by any independent evidence.  Though the Applicant was living in a refugee camp and his status as a refugee was recognised by the Republic of Guinea in February 2007, any assessment would need to consider the current risk.[24]

    [24] Exhibit R3, Respondent’s supplementary bundle, p 59.

25. In light of the strength of the evidence before the Tribunal and options which may be available to the Applicant should the mandatory cancellation not be revoked, this factor weighs neutrally. 

    Strength, nature and duration of ties to Australia

1. By far the most significant factor in determining the Applicant’s ties to Australia is his relationship with his father, his two children, his stepson and his fiancé Ms C.  As all will continue living in Australia should the Applicant be deported, the Applicant has strong ties to Australia. 

2. Until his imprisonment, the Applicant worked at the same employer as his father.  They see each other between two or three times each week outside of work. 

3. I take into account that the Applicant has contributed to the community through his employment at an abattoir, as a labourer, cleaner and at a timber mill.  He has donated to charity, plays soccer and has participated in community and cultural activities.  

4. In accordance with the Direction, the weight to be given to the consideration of the Applicant’s ties to Australia is lessened by the short time between his arrival in Australia and his first offence.  Whilst the Applicant has worked for most of the period he has lived in Australia, his ability to contribute positively to the community has been curtailed by the two terms of imprisonment he has served and his time in immigration detention. This consideration weighs in favour of revocation.  

   Impact on Australian business interests

5. This part of the Direction stipulates that this consideration should only generally be given weight where non-revocation would significantly compromise the delivery of a major project or the delivery of a major service in Australia. There is no evidence from either party that this was the case in the Applicant’s circumstances and I do not consider this to be a relevant consideration.

   Impact on victims

6. The Direction provides that decision-makers should take into account the impact on victims where information is available. There is no evidence before me of any victims of the Applicant’s crimes and consequently this consideration weighs neutrally.

   Extent of impediments if removed

7. This part of the Direction requires the Tribunal to consider the extent of impediments the Applicant may face if he is repatriated to Liberia and maintaining basic living standards, in the context of what is generally available to other citizens of that country.  Factors that should be taken into account are the individual’s age or health, any substantial language or cultural barriers and any social or medical support available to them in that country.

8. If the Applicant is deported he will be returned to Liberia where he has never lived.  The Respondent concedes that the Applicant will face significant difficulties in Liberia including substantial language and cultural barriers, a lack of social, medical and economic support and the negative impact that relocating will have on his partner and children.  Whilst the Applicant will have access to health services, treatment and welfare similar to that of other Liberians, these services would not be of the standard available to the Applicant in Australia. 

9. It is the case that the Applicant would have the advantage of being relatively young, in good health and with good employment and study experience which would support his ability to maintain living standards.

10. This consideration weighs in favour of revoking the cancellation of the Applicant’s visa. 

    CONCLUSION

11. In balancing the various considerations, the need to protect the Australian community weighs in favour of refusing to revoke the mandatory cancellation of the Applicant’s visa.  It is particularly concerning that he has repeatedly offended and has done so with increasing frequency prior to the mandatory cancellation of his visa.  However, I place less weight on this consideration in light of the Applicant’s inexperience with alcohol prior to 2015 and his enhanced prospects of rehabilitation.  

12. The interests of the Applicant’s two children and his stepson weigh heavily in his favour.  He is an integral part of their lives and his absence has been felt by the children, who have also been disadvantaged by his inability to provide financially whilst in gaol and detention. 

13. The Applicant is his father’s only living relative.  The Applicant’s father wishes to have his son care for him as he ages and the initial joy of father and son being reunited has been overshadowed by the consequences of the Applicant’s offending.  The Applicant’s father is a positive force in the Applicant’s life, having helped secure him work and is committed to investing effort in preventing his son from further reoffending.  This consideration weighs in favour of revoking the cancellation. 

14. For the Applicant to establish himself in Liberia will be difficult in the absence of connections or familiarity with the country having never been there.  This factor also weighs in favour of revoking the cancellation. 

15. The risk to the Australian community should the Applicant reoffend is serious, and the risk, though somewhat reduced, remains.  However, in balancing the considerations in accordance with the Direction, I find that factors in favour of revoking the mandatory cancellation outweigh those against and consequently the decision under review must be set aside. 

    DECISION

16. The reviewable decision made on 16 June 2020, being the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the cancellation of the Applicant’s Class XB subclass 204 Woman at risk visa is set aside.  It is substituted with a decision to revoke the mandatory cancellation of the Applicant’s Class XB subclass 204 Woman at risk visa.  

I certify that the preceding 116 (one hundred and sixteen) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

.............................[sgd]...........................................

Associate

Dated: 8 September 2020

Date(s) of hearing:	20, 21 and 25 August 2020
Solicitors for the Applicant:	Mr F Nikjoo, Nikjoo Lawyers
Solicitors for the Respondent:	Mr T Ellison, Australian Government Solicitor