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XLFM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 3045 (22 September 2023)

Last Updated: 27 September 2023

XLFM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 3045 (22 September 2023)

Division: GENERAL DIVISION

File Number(s): 2021/1382

Re: XLFM

APPLICANT

And Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal: Senior Member O'Donovan

Date of Decision: 22 September 2023

Date Reasons Published: 25 September 2023

Place: Sydney

The Tribunal sets aside the decision dated 24 February 2021 not to revoke the cancellation decision made under s 501(3A) of the Migration Act 1958 and, in substitution, decides to revoke the cancellation decision and restore the applicant’s Class AH Subclass 101 Child visa.

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

Senior Member O'Donovan

Catchwords

MIGRATION – mandatory cancellation of applicant’s Class AH Subclass 101 Child visa – applicant is a citizen of Kenya – attempted sexual intercourse without consent – robbery armed with an offensive weapon – failure to pass the character test – whether there is another reason to revoke the visa cancellation – Direction no. 99 – protection of the Australian community – family violence – is sister of ex-partner a ‘family member’ – best interests of minor children – expectations of the Australian community – strength, nature and duration of ties – extent of impediments if removed – standard of medical care in Kenya – legal consequences of decision where non-refoulement duty owed and no protection finding – decision under review set aside

Legislation

Migration Act 1958 ss 189, 195A, 197C, 198, 197AB, 499, 501, 501CA

Cases

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

HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

Secretary to the Department of Justice and Regulation v LLG [2018] VSCA 155

Secondary Materials

Direction No 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (23 January 2023)

REASONS FOR DECISION


Senior Member O'Donovan


25 September 2023

  1. The applicant was born in Kenya in October 1994.
  2. He came to Australia on a Child Visa at the age of 15 to live with his biological father – a man he had never met prior to his arrival in Australia. He did not integrate well with his father’s family and soon found himself living with an uncle who showed little interest in his welfare.
  3. When a teacher at his school observed signs of neglect, arrangements were made for him to live with Pauline and Gary Gallagher and an informal foster care arrangement emerged.
  4. Initially the applicant thrived in this environment, but by the age of 22 he had pleaded guilty to 7 different offences, some of which were very serious. He was sentenced to an aggregate sentence of 6 years imprisonment in relation to the most serious offences – sexual intercourse without consent and robbery armed with an offensive weapon.
  5. On 28 May 2019 the applicant’s AH subclass 101 Child Visa was cancelled pursuant to section 501(3A) of the Migration Act 1958 (Migration Act). He immediately sought review of that decision. On 24 February 2021 a delegate of the Minister made a decision not to revoke the visa cancellation (reviewable decision). The applicant applied to the Tribunal for review of that decision and the reviewable decision was affirmed. That decision was quashed on appeal. The matter was remitted to the Tribunal for re-hearing.
  6. The question for the Tribunal is whether the reviewable decision not to revoke the decision to cancel the applicant’s visa should be affirmed. The Tribunal can decide to revoke the cancellation decision if the Tribunal is satisfied that:
    (a) The applicant passes the character test (as defined by section 501 of the Act); or

    (b) That there is another reason why the cancellation decision should be revoked.

  7. It is accepted that the applicant does not pass the character test, consequently the only question is whether there is another reason why the cancellation decision should be revoked.
  8. In considering whether there is another reason why the cancellation decision should be revoked, the Tribunal must have regard to the matters contained in a ministerial direction which was issued under section 499 of the Migration Act. The relevant direction is Direction No 99 which was executed on 23 January 2023 and commenced on 3 March 2023 (the Direction).
  9. The Direction is divided into ‘Primary’ and ‘Other’ considerations. Primary considerations should generally be given greater weight than the other considerations (but there is scope to weight ‘Other’ considerations more highly in appropriate circumstances[1]).
  10. The primary considerations are:
    (a) Protection of the Australian community from criminal or other serious conduct;

    (b) Whether the conduct engaged in constitutes family violence;

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

    (d) The best interests of minor children in Australia;

    (e) Expectations of the Australian community.

  11. The other considerations are:
    (a) The legal consequences of the decision;

    (b) The extent of impediments if removed;

    (c) Impact on victims;

    (d) Impact on Australian business interests.

  12. It is agreed between the parties that the impact on victims and impact on Australian business interests are neutral factors which do not need to be specifically addressed.
  13. Having considered each of the considerations identified in the Direction and weighed them appropriately, I am satisfied that there is another reason why the cancellation decision should be revoked and the visa cancellation decision should be set aside.
  14. In considering that question, I approach the matter consistently with the observations made in Gaspar v Minister for Immigration and Border Protection[2]:
    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...
  15. My reasons for that decision are set out below.

Evidence before the Tribunal

  1. The following material was taken into evidence in the course of the hearing:
(a) G-Documents filed with the Tribunal on 22 March 2021 (G-Docs);

(b) Applicant’s statement dated 9 August 2023 (Exhibit A1);

(c) Applicant’s supplementary statement dated 6 September 2023 (Exhibit A2);

(d) Report of Tim Watson-Munro dated 23 August 2023 (including CV and letter of instruction dated 15 June 2023) (Exhibit A3)

(e) Forensic Psychological Report of Caroline Hare dated 5 November 2018 (Exhibit A4);

(f) Statement of Pauline Gallagher dated 9 August 2023 (Exhibit A5);

(g) Letter of Support from Neimia Tuilawa dated 27 July 2023 (Exhibit A6);

(h) Extract from Compendium of Offender Behaviour Change Programs dated February 2021 (Exhibit A7);

(i) Undated Positive Lifestyle Program Information Sheet (Exhibit A8);

(j) Letter of Support from Sherrie Gallagher dated 4 September 2023 (Exhibit A9);

(k) Letter of Support from X dated 4 September 2023 (Exhibit A10);

(l) Letter of Support from Sylvia Ashiadey dated 4 September 2023 (Exhibit A11);

(m) Article titled 'Voices from the Youth in Kenya Addressing Mental Health Gaps and Recommendations' in International Journal of Environmental Research and Public Health published 28 April 2022 (Exhibit A12);

(n) Article titled ‘Assessing Mental Health Literacy of Primary Health Care Workers in Kenya: a cross-sectional survey' in International Journal of Mental Health Systems published 1 June 2021 (Exhibit A13);

(o) Guidelines on Minister's detention power (s 195A of the Migration Act 1958) dated 18 August 2017 (Exhibit A14); and

(p) Guidelines of Minister's Residence Determination Power (s 197AB of the Migration Act 1958) dated 10 October 2017 (Exhibit A15).

  1. The following witnesses gave oral evidence and were cross-examined:
(a) The applicant;

(b) Pauline Gallagher;

(c) Tim Watson-Munro;

Facts

Fact finding principles

  1. In reaching my findings on the primary facts I must apply the principle, clarified by the Full Court of the Federal Court in HZCP v Minister for Immigration and Border Protection,[3] that '...relying on evidence contrary to the essential conviction or sentencing facts would in itself be an error'. The Court made clear that a person who makes representations to revoke the cancellation of a visa cannot advance a factual position that undermines the relevant convictions and sentences as 'another reason' why the original decision to cancel should be revoked.
  2. I do note however that the applicant is entitled, subject to some qualifications, to seek different findings from the Tribunal in relation to any criminal convictions which did not form the basis of the decision to cancel his visa. The principles to be applied by the Tribunal when considering evidence of this nature were comprehensively summarised by Justice Bromberg in HZCP v Minister for Immigration and Border Protection. These principles are pithily summarised in the following passage from Secretary to the Department of Justice and Regulation v LLG [2018] VSCA 155 at [42], cited with approval by Justice Bromberg:
    The authorities distinguish between cases where a previous conviction is the basis for a decision-maker or reviewing tribunal's jurisdiction and those where it is not. In the former case, the essential factual basis of the conviction (or sentence, as the case may be) is not able to be reviewed, but the circumstances of the conviction can be reviewed for a purpose other than impugning the conviction itself. In the latter case, the essential facts underlying the convictions are not immune from challenge and the conviction is conclusive only of the fact of the conviction itself, but there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.
  3. Accordingly, in relation to the offences committed in 2016 and 2017 it is not open to me to depart from the Judge's sentencing remarks and the facts on which they were based. In relation to the applicant's other convictions I can depart from the relevant findings, but the applicant has a heavy onus to discharge before I would do that.
  4. In applying these principles there is a restraint on the findings I can make in relation to the applicant’s most serious offences.

Facts

  1. My findings of fact are set out below. Where a finding is controversial, I have referenced the evidence on which the finding is based.
  2. The applicant was born in Mombasa, Kenya in October 1994.
  3. He grew up in a family which he believed consisted of his mum and dad, himself and two brothers. His upbringing was strict and orderly. He attended a Catholic school. He was well looked after and the applicant describes this part of his childhood as happy. However, when the applicant was ten, a series of tragedies turned his life upside down.
  4. After a short illness his mother died suddenly. While the applicant was coping with his grief from that event, the man who he believed was his father (and who had always treated him like a son) revealed that he was not in fact his biological father. The applicant was then sent to live with members of his biological father’s family who he had never met before. Initially he was placed with his grandparents and later other members of the family. This was a very unhappy period for the applicant. Under the new arrangements, he was living with people who lived and behaved very differently from the family in which he grew up. He ran away repeatedly, attempting to resume living with the man who had raised him, but on each occasion he was returned to his biological father’s family.
  5. To this point the applicant had still not met his biological father.
  6. In 2010 the applicant met an uncle who was visiting Kenya from Australia. He was offered the opportunity to come to Australia and live with his biological father. He decided to take up the offer.
  7. The applicant arrived in Australia on a Child Visa on 28 May 2010 at the age of 15. He met his biological father who at that time was married and had 5 other children who were younger than the applicant. That living arrangement did not work out. On the applicant’s account, his father and his wife were not accepting of the applicant and he did not integrate into the family. The applicant’s uncle offered to house him. The applicant took up the offer. While he had a roof over his head his uncle was unwilling to provide financial and emotional support. The applicant’s welfare suffered.
  8. At this stage the applicant was attending Canterbury Boys High. The school became aware of the applicant’s living conditions and decided to intervene. An arrangement was reached whereby the applicant would move in with Pauline and Garry Gallagher. The Gallagher’s daughter Sherrie was teaching at Canterbury Boys High at the time and brought the applicant’s plight to her parent’s attention. The applicant moved in with the Gallaghers when he was about 16.
  9. The applicant appears to have thrived at school after this change. He participated in a wide range of sports and was ultimately appointed sports captain. He also pursued vocational qualifications.
  10. In 2011 the applicant began a relationship with a girl (SA) who he had met through working at KFC.
  11. In 2014 when the applicant was 19 an issue arose with SA. She had not contacted the applicant for several days and when he visited her house he was angry to discover that an ex-boyfriend of hers was there. In the argument which ensued he pushed SA and then took her phone (which was a gift he had given her) and smashed it. As a result of this incident the applicant pleaded guilty to:
    (a) Damage/destruction of property; and

    (b) Common assault.

  12. He was given a good behaviour bond for 18 months and an apprehended violence order was issued against him.
  13. SA and the applicant at some point reconciled and they moved in together. The applicant found work as a nurses’ aid at St Vincent’s hospital. In September 2015 SA gave birth to their son Leo. At this point the applicant had ceased studying and was working to support his family. He took out a $15,000 loan to buy furniture for the unit they were living in.
  14. On 11 November 2015 the applicant attempted to travel on a train without a valid ticket. When he was approached by police he gave a false name. When attempts were made to arrest him, the applicant resisted – pulling his hand away repeatedly to avoid being handcuffed. In the ensuing struggle a police officer was flung to the ground. The applicant was sprayed with capsicum spray but was not subdued until additional police came to assist. On 27 January 2016 he was convicted in the Newtown Local Court of:
(a) Travel or attempt to travel without valid ticket;

(b) State incorrect name or address to an authorized officer; and

(c) Resist or hinder police officer in the execution of duty.

  1. The applicant was fined a total of $300 and given a 12 month good behaviour bond.
  2. Sadly, the applicant was not of good behaviour.
  3. During 2016 his relationship with SA broke down due to a desire on his part to pursue a relationship with another person. He did however continue to visit her and help out with their son. When it was convenient the applicant stayed over at SA’s unit.
  4. On 16 November 2016 the applicant went to SA’s unit having agreed with her that he would stay over that night. SA’s 17 year old sister EA was there and also intended to stay over. The applicant was not aware of this arrangement until he arrived. The applicant was initially in SA’s bedroom with SA and their son but there was a dispute and the applicant left to sleep in the living room. EA was on the couch and the applicant joined her there.
  5. EA went to the bathroom and while she was there the applicant pulled out the foldout bed which was part of the couch they had been sitting on and lay down. EA returned and went to sleep on the other side of the bed.
  6. The sentencing judge found the following:
    Having moved to sleeping on her stomach [EA] was woken by [the applicant] lying on top of her. She was scared and did not say anything or move. He did not say anything to her. He pulled up her dress, pulled down her underwear, he pushed his penis into the area of her anus and buttocks repeatedly until he ejaculated on her buttocks and right thigh. She did not move during the incident due to her fear and shock. He did not say anything to her or ask her if she consented. At no time did she consent.[4]
  7. EA reported the crime the following day and the applicant was questioned and charged. He was released on bail. While on bail the applicant’s behaviour deteriorated further.
  8. The applicant had begun binge drinking after leaving school and that pattern continued. On New Year’s Eve 2016 he drank heavily and threw himself into the harbour in an attempt to take his own life. He was rescued and taken to St Vincent’s Hospital where, upon regaining consciousness he attempted self-harm with a pen. He was sedated and subsequently psychiatrically assessed. The assessment indicated that the applicant was a low risk of suicide and was released on that basis.
  9. By this stage the applicant was in serious financial difficulty. He was unable to continue to work due to the charges laid against him. SA was seeking financial support from him and would not allow him to see his son if he did not provide financial support. On 20 January 2017, after consuming some alcohol, the applicant decided to rob a petrol station. The sentencing judge found the following:

At 10.19pm [the applicant] walked into the service station wearing black clothing, a dark hat, white gardening gloves and a white handkerchief around his face. He asked the victim if he could top up his Opal card and handed him two $5 notes. He then began to talk about the ATM but as the victim opened the cash drawer to put the money inside, [the applicant] moved behind the service counter and pulled a meat cleaver from a bag he had, holding it in his right hand.

When [the service station employee] saw the meat cleaver he backed away from the counter with his arms raised and said for [the applicant] to take whatever he wanted. [The applicant] took $400 from the cash drawer of the till. He was recorded by CCTV as he ran from the service station and ran to the rear of the building. Police arrived quite soon after.[5]

  1. The applicant was apprehended and taken into custody a few days later. He remained in custody until he was sentenced to an aggregate sentence of 6 years imprisonment for the sexual offence and the robbery. His non-parole period was set at 4 years. He was sentenced to 7 days prison in relation to the earlier resisting arrest offence.
  2. Prior to being sentenced the applicant was examined by forensic psychologist Caroline Hare. She identified mental health problems from which the applicant suffered and considered his likelihood of re-offending. She assessed him as having a likelihood of re-offending in the ‘above average range.’[6] She identified steps the applicant should take in light of his risk of re-offending.
  3. Following his sentence the applicant served his prison sentence at a variety of locations.
  4. While he was in prison SA moved with his son to the UK and married someone else.
  5. While in prison he undertook the following steps to address his mental health issues and the risk of him re-offending:
    (a) A general therapeutic program for offenders assessed as higher risk known as ‘EQUIPS Foundation’

    (b) A program addressing addiction behaviour and providing a pathway to support services for addictive behaviours known as ‘EQUIPS Addiction’

    (c) A program dealing with issues of self-esteem, anger management and self-awareness known as the ‘Positive Lifestyle Program’

    (d) Completion of the Medium Intensity Sexual Offenders Program (MISOP)

  6. He also gained the following work experience and qualifications:
    (a) Experience as an engineering general hand, cleaner, powder coating machine operator, facilities maintenance lead hand, accommodation sweeper and engineering welder[7]

    (b) Completion of courses in Food Safety and Forklift Ticket[8]

    (c) Completion of TAFE NSW accredited units TLID1001 (Shift materials safely using manual handling procedures), TLIF1001 (Follow work health and safety procedures) and HLTWHS200A (Participate in WHS processes)[9]

  7. His disciplinary record in prison was extremely good. While in prison the applicant described the following event at Nowra Corrective Centre where he had been appointed ‘unit delegate’ for the unit in which he was living.
  8. An occupant of the unit decided to move to another unit. The former occupant took some belongings from the unit which another inmate believed he was not entitled to take. As the ‘unit delegate’ the applicant felt obliged to go to the former occupant’s new unit and recover some of these belongings. The applicant was accompanied by the other inmate. When he sought to recover the belongings the former occupant started screaming. This resulted in an altercation between the former occupant and the person accompanying the applicant.
  9. When this incident occurred, the applicant was charged with taking the property and with assault. The applicant stated that he was found not responsible for the assault but he did accept responsibility and take accountability for taking the property that the individual claimed belonged to him.
  10. There was another incident after the applicant moved to Villawood Detention Centre.
  11. The applicant described the details of this incident as follows. A new detainee who had recently been released from the prison system was brought into the compound and had been bullying other detainees. When dinner was being served, this new detainee made a comment to the applicant. The applicant did not want to engage in any physical altercation with this new detainee and decided to walk away from the kitchen area into his unit. The new detainee then stood in the middle of the building and shouted the applicant’s name. Within the culture of the detention centre this is a challenge which if not responded to requires the person challenged to change units. The applicant did not wish to change units so returned to the dining hall. The new detainee tried to attack him but the applicant’s friends pushed him back and asked that the new detainee be removed from the compound. A number of detainees who had been subjected to bullying by this new detainee supported the applicant’s friends in making this request.
  12. In my assessment both incidents suggest that the applicant has matured significantly while in prison. Both incidents had the potential for the applicant to respond violently and on both occasions he avoided that outcome. He demonstrated significant emotional restraint in circumstances where the emotional tension in the situation was high.
  13. At the start of 2023 the applicant was unexpectedly released from immigration detention. The Full Federal Court found in Pearson v Minister for Home Affairs [2022] FCAFC 203 (Pearson decision) that aggregate sentences of more than 12 months were not sufficient to trigger the automatic visa cancellation provisions in s 501(3A) of the Migration Act.
  14. The applicant was released from immigration detention in late January 2023.
  15. When he was released from detention the applicant rang the Gallaghers and they collected him from outside Villawood.
  16. In the period he was out of detention the applicant:
    (a) Lived with the Gallaghers;

    (b) Obtained employment as a landscape gardener;

    (c) Commenced attendance at Alcoholics Anonymous meetings with his sponsor;

    (d) Commenced a TAFE course in horticulture;

    (e) Spent time with the Gallaghers’ grand-children;

    (f) Pursued a romantic relationship with a new partner;

    (g) Obtained a mental health plan from his GP and was placed on a waiting list to access services.

  17. On 13 February 2023 the Federal Parliament passed amendments to the Migration Act to deal with the Pearson decision. As a result, the applicant was returned to immigration detention where he has remained. While in detention he has continued to see his psychologist regularly and take Mirtazapine.
  18. It is against this factual background that the considerations in the Direction must be applied. Where necessary I have made more refined findings of fact in the context of discussing the application of the Direction to the specific facts of the case.

Primary Considerations

Protection of the Australian Community

  1. In considering the protection of the Australian community I am required to keep in mind that the Government is committed to protecting the Australian community from harm from criminal activity or other serious conduct by non-citizens. I am required to have particular regard to the principle that remaining in Australia (for a non-citizen) is a privilege which is conferred on the basis that they will be law abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community.
  2. I need also to give specific consideration to:
    (a) The nature and seriousness of the applicant’s conduct to date; and

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

Nature and seriousness of the conduct

  1. In considering the nature and seriousness of the conduct there are factors to which I must have regard specified in paragraphs 8.1.1(1)(a)-(h).
  2. When these factors are applied the result is I must approach the applicant’s case on the basis that his crimes are viewed very seriously by the Australian Government and the Australian Community. His crimes include violent and sexual crimes, crimes against women and children and crimes of family violence. His crimes also include a crime against government officials in the performance of their duties. I must also consider that in relation to his most serious crimes a substantial sentence was imposed by the courts. Further, the applicant’s most serious offending occurred in the space of 15 months and increased in seriousness each time.
  3. I have also given attention to the cumulative effect of the applicant’s repeated offending. In totality it adds up to a very worrying picture of criminality.
  4. I have to regard the applicant’s offending very seriously and this weighs heavily against him when I consider the goal of protecting the Australian community from criminal conduct.

The risk should the non-citizen commit further offences

  1. In considering the need to protect the Australian community I must 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. The applicant’s conduct falls just short of criminality of that kind. Robbery with a weapon and a sexual assault on an apparently unconscious minor are both extremely serious offences which I am sure have had enduring consequences for the victims. They are not however so serious that the other factors under consideration could not outweigh this factor if there was any risk of them being repeated.
  2. In assessing the risk to the community I have had regard to the factors identified in paragraph 8.1.2(2) of the Direction. My analysis is as follows.
  3. The harm to individuals should the applicant engage in further conduct of a criminal or serious nature includes becoming a victim of a sexual assault, becoming the victim of threats of violence in the context of property theft, becoming the victim of violence in the course of executing a public duty and a domestic partner being subject to displays of anger and incidents of family violence.
  4. I do however consider the risk of the applicant engaging in further criminal or serious conduct to be, for the most part, low. In relation to the resisting arrest offence, the applicant committed the offence in 2015. He has since been in prison and in immigration detention where he was required to interact with officials constantly. There is no record of any display of bad behaviour or defiance. The applicant is now 8 years older. I consider it extremely unlikely that he would behave in a similar way again if confronted by officials.
  5. In relation to the financially motivated crimes, the robbery of the petrol station and the fare evasion, I am satisfied that it is extremely unlikely that the applicant would engage in crimes of that nature in the future. The applicant is currently well supported financially in that the Gallaghers are providing him with food and accommodation for the foreseeable future. His former partner has taken their son to the UK and in doing so has relieved him from one of the sources of financial stress that led him to commit crime. His loans have been cleared and he has improved his financial literacy while in prison. He has shown himself well able to secure employment very quickly upon release and he has well formed and realistic financial plans for the future. For these reasons I am satisfied that the applicant is unlikely to commit crime driven by financial worries in the future.
  6. In relation to violent crimes I am also satisfied that the risk of the applicant committing a crime involving threats of violence is very low. The applicant’s history of criminal violence is short. His first assault charge in relation to SA arose when he was relatively young. In circumstances where he was a teenager in a jealous rage the violence was limited. This is not to condone what occurred, merely to note that if the applicant was prone to violence when experiencing heightened emotions, the incident in question would have been worse than it was. The incident with police was clearly serious and any incident which involves a person being subdued with pepper spray and requiring multiple police officers to effect an arrest is a violent incident. For the reasons explained above, my assessment is that the applicant has matured and would not react in the same way given what he has learned in prison and immigration detention. He has demonstrated an ability to control his behaviour even when provoked. When this is combined with the very significant incentives he has to be law abiding, I assess the risk of violence of the kind engaged in in the resisting arrest incident being repeated as extremely low. In relation to the incident involving menacing the petrol station attendant with a meat cleaver, I assess the risk of a repeat of similar behaviour as extremely low. The applicant was under extreme emotional stress at the time having been charged with a very serious crime, he was unable to work and was cut-off from his son unless he was able to provide SA with financial support. Even then the applicant was clearly still in two minds as he committed the crime. Seeking a recharge on his Opal Card and then dropping it in the service station shows how nervous he was about committing the offence and how hopeless his planning of it was. The applicant has stated, and I accept, that consuming alcohol enabled him to go through with the plan. Since the robbery he has been punished severely for his conduct and has successfully abstained from alcohol. In these circumstances I am satisfied that the applicant is not naturally prone to violence and there are enough protective factors now in place that it is extremely unlikely that he will commit an offence of a similar kind to the service station robbery again.
  7. In relation to the conviction for attempting to have sexual intercourse without consent, I am less confident that there is a very low chance of something like that happening again. It was an opportunistic crime that required no planning. There is always a chance he will repeat the behaviour if a similar opportunity presented itself again. However, the applicant has been punished severely for it and has taken opportunities to inform himself better about questions of consent. I am satisfied that he is a lower risk of offending again than when he was assessed by Ms Hare.
  8. However, his own psychologist Mr Watson-Munro still assesses that the risk of him reoffending is trending from moderate to low. I would not seek to gainsay that assessment.
  9. Taking into account the risks if the applicant re-offends and the likelihood of him doing so, as well as the seriousness of the conduct, this factor weighs very heavily against restoring his visa to him.

Family violence committed by the non-citizen

  1. The Government has serious concerns about conferring on non-citizens who engaged in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.
  2. There is no dispute that the applicant committed family violence against SA when he pushed her and broke her phone in 2014. The conduct was violent and threatening and caused SA to be fearful. At that point SA was the applicant’s intimate partner. Accordingly the conduct meets the definition of family violence in the Direction.
  3. There is however a question whether EA was a member of the applicant’s family at the time of the sexual assault. At that point in time, EA was the younger sister of the applicant’s former intimate partner. She was and is an aunt to the applicant’s child. In the absence of the connection between the applicant and SA it is unlikely that he would ever have encountered EA and certainly he would not have found himself sleeping in the same room as EA. That said, the sister of an ex-partner would not normally be described as a ‘member of [one’s] family’.
  4. When read in the context of the direction as a whole, I do not consider that the concept of a ‘member of the [visa holder’s] family’ includes a person as distantly related to the applicant as his former intimate partner’s sister.
  5. In Direction 99 a definition of ‘member of a person’s family’ was included to ensure that former intimate partners were included in the definition of family members. However, other than that clarifying provision there is no articulation of which associations mean a person is a ‘member of the [visa holder’s] family’. One of the examples of ‘behaviour that may constitute family violence’ which is included in the definition of family violence provides as follows:

Examples of behaviour that may constitute family violence include:

...

j) unlawfully depriving the family member, or any member of the family member’s family, or [sic] his or her liberty.

  1. This suggests that there is a distinction between a family member of the visa holder, and a family member of the victim - ie not every member of the victim’s family is a member of the visa holder’s family - otherwise it would not be necessary to note the extended application of the example.
  2. Given that this distinction is apparent from the Direction itself, and in circumstances where the victim concerned is a relative of a former intimate partner, I am satisfied that EA is a member of SA’s family but not a member of the applicant’s family. On that basis his most serious offending should not be classified as family violence.
  3. Turning then to an assessment of the seriousness of the applicant’s family violence I consider;
    (a) the applicant’s family violence was an isolated incident which has not increased in seriousness;

    (b) there is no cumulative effect from repeated acts of family violence;

    (c) the applicant has clearly learned from and taken responsibility for his earlier acts of family violence and understands the impact that his behaviour had on his victim;

    (d) he has also taken steps to address the factors which contributed to the conduct including anger management courses;

    (e) he has not re-offended.

  4. In these circumstances this consideration weighs against the revoking the cancellation, but not significantly.

Strength, nature and duration of ties to Australia

  1. The Direction places significant focus on the impact of any cancellation decision on the non-citizen’s immediate family members. The applicant has very limited contact with people who fall into that category. He is estranged from his biological father and uncle and appears to only have regular communication with a half-sister. His son Leonard is living overseas at present, as is his former partner. If the assessment of the applicant’s ties to Australia was based exclusively on close blood relationships the assessment would have to be that the ties are not strong.
  2. However, I am also required to consider the strength, duration and nature of any social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia. Thanks primarily to his relationship with the Gallaghers, those links can be assessed as very strong. It is useful to contrast the applicant’s ties with Australia with his ties to Kenya.
  3. The applicant has very weak ties in Kenya. Since his mother’s death he has had little contact with the brother he grew up[10] with and the man he knew as his father. He has weak ties with his biological father’s family which formed part of the reason he was willing to come to Australia with his uncle.
  4. Members of the Gallagher family have known the applicant since 2011. Sherrie Gallagher (Pauline and Gary’s daughter) was a teacher at Canterbury Boys High School when the applicant arrived there as a 16 year old. Sherrie suggested that Pauline and Gary take on responsibility for the care of the applicant.
  5. The applicant lived with Pauline and Gary for several years before he moved out with SA. In that time it is clear that a deep, family-like relationship was formed. When the applicant has been in trouble the Gallaghers have offered financial and emotional support. Pauline attended court when the applicant received his sentence for his most serious crimes. Pauline visited him when he was in prison and when he was being held in Villawood detention centre. When the applicant was released as a result of the Pearson decision earlier this year, the applicant went to live with the Gallaghers. In this period he also renewed his relationship with Sherrie’s children and grasped the opportunities he was presented with with both hands. Sherrie’s son X who is a year nine student, described the relationship in the following terms:
    [The applicant] has been part of my family since before I started school. My mum tells me it was 2012 before I was four and before my brother L was even one.

    [The applicant] is such a good role model for me. This year he came to watch me play rugby league every Saturday he was free from the Detention Centre, and I know he also was keen to watch me play basketball on Fridays, however, he had to work.

    [The applicant] knows a lot about diet and exercise and wrote me a healthy eating and exercise plan that also included studying and reading. He always encourages me to be the best version of myself and has been open about the mistakes he has made.

    So far in 2023 my favourite memories are of my mum and I versing [the applicant] and L in basketball, at the courts near my grandparent’s house and [the applicant] teaching me how to cook. I have a lot of letters and drawings that [the applicant] sent me whilst he was in jail, and these are some of my most sacred possessions. My dog Huey’s favourite person is [the applicant], and research says that “dogs make social and emotional evaluations of humans, giving them the capacity to judge people”.

    I have only known my family with [the applicant] in it and I am begging that that piece of the family puzzle stays where it should be, with us. I have many more positive stories about [the applicant] and am happy to be contacted.[11]

  6. When the applicant was returned to Villawood Detention Centre, the Gallaghers continued to visit the applicant. Five members of the Gallagher family were present at various times during the hearing.
  7. In addition to the Gallaghers, the applicant has received an offer of employment as a horticulturalist, has an Alcoholics Anonymous sponsor and commenced a new romantic relationship earlier this year. He has two friends from high school who he is still in contact with.
  8. The applicant arrived in Australia aged 15 and important formative years were spent here. Until things fell apart during the course of 2016 and the start of 2017 the applicant had been contributing positively to Australia. He had work as a nurses’ aid and hopes of becoming a nurse. The applicant was in Australia for four years before his offending began.
  9. The applicant’s ties to Australia are very strong. He has no comparable ties anywhere else in the world. This factor weighs very heavily in favour of the applicant.

Best interests of minor children in Australia

  1. The applicant’s son lives in the UK at present. Consequently, it is not appropriate (as the applicant’s representative conceded) to consider his best interests in the context of this consideration. There is some suggestion in the evidence that he and his mother may return to Australia once her divorce from her husband is finalised but the evidence for that proposition is weak and I am not prepared to proceed on the basis that such a return is likely.
  2. The children whose best interests the applicant does rely on are the Gallaghers’ grandchildren La, Le and X. The applicant does not play a parental role in these children’s lives and is not responsible for their care and welfare, but he can and does play a role in their lives that is positive and there is clearly love between the applicant and at least two of the boys. Revoking the cancellation is in the best interests of (at least X and Le). I do not have sufficient evidence to make that finding in relation to La. In making that determination I have considered each of the factors in paragraph 8.4(4) in relation to each of the boys.
  3. Consequently this consideration carries weight that supports the exercise of discretion in favour of the applicant.

Expectations of the Australian Community

  1. As the Direction makes clear, 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, the Australian community, as a norm, expects the Government not to allow such a non-citizen to remain in Australia. Visa cancellation may be appropriate simply because the nature of the offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. The Australian community expects that the Australian Government should cancel a person’s visa if serious character concerns are raised through:
    (a) acts of family violence;

    (b) commission of serious crimes of a violent or sexual nature against women; and

    (c) commission of crimes against government officials in the performance of their duties.

  2. This expectation applies regardless of whether the non-citizen poses a measurable risk of causing harm to the Australian community.
  3. This consideration weighs very heavily against revoking the cancellation of the applicant’s visa.

OTHER CONSIDERATIONS

Legal consequences of the decision

  1. The position in which the applicant finds himself is as follows. In the context of this application he has made claims about risks which he faces if he is returned to Kenya. The respondent has accepted some of these claims. In particular, the respondent notes in its Statement of Facts, Issues and Contentions that:
    The Applicant has raised Australia’s non-refoulement obligations and claims to be owed protection obligations on the basis of his membership of a group characterised to consist of people who have committed serious crimes. The Applicant claims that ‘mob justice’ or ‘vigilante justice’ is prevalent in Kenya and he fears being attacked as part of mob justice due to his offences. The Applicant has provided in-country information about mob justice from a variety of sources including media articles, an academic article, and reports. The Respondent accepts that the in-country information provided supports the Applicant’s contention that mob justice against those who have committed serious crimes is prevalent in Kenya. This is particularly so in areas that are rural or where the residents feel that the criminal justice system has been inadequate. The Respondent accepts that non-refoulement obligations are owed to the Applicant.
  2. Non-refoulement obligations are obligations that Australia owes under international law pursuant to various international treaties and covenants not to return persons in Australia to places where they will face particular risks. The Migration Act reflects Australia’s interpretation of its non-refoulement obligations and the scope of the obligations that Australia is committed to implementing. There is an imperfect overlap between Australia’s non-refoulement obligations under international law and the obligations which are implemented through the protection visa system.
  3. The applicant has never applied for a protection visa and has never had a formal finding under the Migration Act in relation to any protection claims which he has made. Nor has he been subject to a less formal finding under the International Treaties Obligations Assessment (ITOA) process, or indeed under any other process. The applicant did not indicate one way or the other whether he would apply for a protection visa.
  4. At present, if the applicant’s visa is not restored to him then, notwithstanding that the Australian Government accepts that it owes him a non-refoulement obligation, he must be removed as soon as reasonably practicable under section 198. Pending removal, he will be held in detention.
  5. No protection finding (as defined by section 197C of the Migration Act) has been made in relation to the applicant
  6. In these circumstances, the applicant is, if his visa is not restored to him, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in section 198 of the Migration Act, and in the meantime to detention under section 189.
  7. Paragraph 9.1.1 of the Direction does not apply to the applicant because no protection finding has been made. In relation to paragraph 9.1.2, the applicant has raised non-refoulement as an issue and the respondent has accepted that such obligations are owed. Consequently, the following passage of the Direction is relevant:

...in making a decision under section 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. However, that does not mean an adverse decision under section 501 or 501CA cannot be made for the non-citizen. A refusal, cancellation or non-revocation decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-visa refusal or cancellation decision or non-revocation decision, if the non-citizen makes a valid application for a protection visa, the non-citizen would not be liable to be removed while their application is being determined.

  1. While these theoretical possibilities exist there is no evidence before me that suggests that any application for a protection visa would be made or that any ministerial discretion would be exercised. What little evidence there is on this issue suggests that if the applicant is unsuccessful, in order to end the uncertainty of his position, the applicant may accept removal to Kenya.[12]
  2. In these circumstances, the legal consequences of my decision if I affirm the decision under review, will be that the officers of the Department will be obliged to take steps to return the applicant to Kenya. The applicant may choose not to take steps to resist this action notwithstanding that Australia accepts that it owes him non-refoulement obligations.
  3. This consideration weighs very heavily in favour of revoking the cancellation.

Extent of Impediments if removed

  1. As the respondent points out, given that the applicant lived in Kenya until he was 15 years old, there are no language or cultural barriers to the applicant establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country). The applicant is also relatively young and in good physical health. He has few social supports due to the alienation he experienced from his family growing up but there are reasons to be optimistic that the applicant would maintain the basic living standards enjoyed by other citizens of Kenya. However, the applicant’s mental health is not robust. He has a history of depression, attempts at self-harm and alcohol abuse. He is unlikely to receive the treatment that he needs in Kenya given the gaps in the health system suggested by the evidence.[13] If the applicant’s mental health were to return to the level he experienced in late 2016 where he was not working, engaged in anti-social behaviour and attempted self-harm, it is a real prospect that the applicant would struggle to maintain even basic living standards given the absence of any obvious family support available to him on return. In these circumstances this consideration weighs in favour of revoking the cancellation.
  2. Other considerations
  3. The parties agree that the considerations which relate to the impact on victims and the impact on Australian business interests are not relevant to an evaluation of the applicant’s circumstances.

Final analysis

  1. Informed by the principles in paragraph 5.2 of the Direction I have taken into account the considerations identified in sections 8 and 9 of the Direction which are relevant to this decision.
  2. The following considerations weigh very heavily against a decision to revoke the cancellation:
    (a) Protection of the Australian community from criminal or other serious conduct;

    (b) The expectations of the Australian community.

  3. The following considerations weigh against revocation:
    (a) Conduct of the applicant which constituted family violence.
  4. The following considerations weigh in favour of revocation of the cancellation, some of them very heavily:
    (a) The strength, nature and duration of the applicant’s ties to Australia;

    (b) The best interests of minor children;

    (c) The legal consequences of the decision, given that it could involve refoulement to Kenya contrary to Australia’s international law obligations;

    (d) The extent of impediments the applicant may face in establishing himself and maintaining basic living standards if returned to Kenya.

  5. Notwithstanding the very serious nature of the applicant’s offending and that he is still assessed as posing a risk to the Australian community, I am persuaded that there is another reason why the decision to cancel should be revoked. In particular the applicant’s close ties to Australia through the Gallagher family (particularly when contrasted against the absence of any strong ties in Kenya) is a strong consideration in letting him stay. The connection with the Gallaghers operates not just as a close and durable tie to Australia but also as a protective factor which has a significant prospect (when combined with the applicant’s own substantial efforts at self-improvement and rehabilitation) of sustaining the applicant on a path that will make him a productive and valued member of the Australian community.
  6. Accordingly, I set aside the decision under review and restore the applicant’s visa to him.
  1. I certify that the preceding 120 (one hundred and twenty) paragraphs are a true copy of the reasons for the decision herein of Senior Member O’Donovan.

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

Dated: 25 September 2023

Solicitor for Applicant:
Mr Gregory Rohan, Legal Aid NSW
Solicitor for Respondent:
Ms Lauren Hargrave, Clayton Utz

[1] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23].

[2] [2016] FCA 1166 at [38].

[3] [2019] FCAFC 202 at [68].

[4] G-Docs, p 34.

[5] G-Docs, p 35.

[6] Exhibit A4, p 16.

[7] G-Docs, p 88.

[8] G-Docs, p 93.

[9] G-Docs, p 96-8.

[10] His youngest brother having died in the early 2000s.

[11] Exhibit A10.

[12] Applicant’s tender bundle page 119 – last three lines.

[13] Exhibits A12 and A13.

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