AAT Case Summary – Cancellation under s501

Bah and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2718 (4 August 2023)

In the case at hand, the applicant was born in Sierra Leone, a country marked by challenges and hardship. He was born into a turbulent environment, and the tragic loss of his parents when he was just five years old left him orphaned. Subsequently, he and his brothers, along with their wives, were forced to flee their homeland, seeking refuge in Guinea. It was in Guinea that the applicant’s formative years were spent, and life as a refugee proved to be immensely challenging. This period of his life was marked by adversity and suffering, with the scars of war and displacement leaving a lasting impact on him.

Despite the immense suffering he endured during his early years, the applicant demonstrated remarkable resilience and determination. What is particularly noteworthy is that he did not seek to use his difficult upbringing as an excuse for his subsequent criminal offenses. Throughout the application process, the applicant had no legal representation or support; he stood alone as the sole witness during the hearing, where he provided testimony that was deemed truthful by the tribunal.

The applicant’s involvement with the criminal justice system began in 2013 with a failure to appear in accordance with a bail undertaking. This marked the start of a series of incidents, including drug-related offenses and breaches of bail conditions. Notably, he was caught with marijuana and drug-related paraphernalia on multiple occasions in 2014. Additionally, he faced charges related to methamphetamine, although he maintained that he had held the substance for someone else.

In 2015, the applicant was charged with failing to stop for the police, claiming he was unaware that they were attempting to pull him over. His history of breaching bail conditions continued, with explanations suggesting inadvertent non-compliance due to not receiving notices.

The applicant faced convictions for public nuisance on two separate occasions. He asserted that these convictions were a result of altercations initiated by others at a nightclub he frequented. The possibility of racial bias playing a role was raised, as he was often the only person of his ethnicity in attendance.

In 2017, the applicant faced another conviction for public nuisance, as well as possession of a small quantity of marijuana. In addition, he was convicted of “assault or obstruct police officer in public place while adversely affected by intoxicating substance licensed premises.” This incident resulted in a 60-hour community service order. He contended that he had been returning home from a party, falsely accused of involvement in a street fight due to his intoxication, and mistreated by the police. The allegation of biting a police officer lacked supporting evidence and was dismissed. He subsequently breached the community service order, citing unemployment and homelessness as contributing factors.

The most significant offenses in the applicant’s criminal history occurred in March 2017 when he was convicted of rape and attempted rape. He was remanded in custody for 15 months and later sentenced in September 2018. The time spent in custody awaiting trial was counted as time served under concurrent sentences, leading to his release from custody.

Between January 2020 and December 2021, the applicant faced several charges related to marijuana possession, breaches of bail undertakings, and possession of tainted property. While these offenses were not of significant severity, they reflected a pattern of reoffending.

The tribunal considered a range of factors in its decision-making process. These included the imperative to protect the Australian community from harm due to criminal activity by non-citizens. The nature and seriousness of the applicant’s offenses were weighed, with a particular focus on the sexual offenses, which were deemed abhorrent. It was acknowledged that the applicant had committed these offenses while under the influence of a cocktail of drugs and alcohol, impairing his judgment significantly.

The tribunal also factored in the potential risk of the applicant reoffending and causing harm to the community. While the harm stemming from sexual offenses was deemed exceptionally grave, it was noted that the applicant had shown remorse, sought counseling, and participated in rehabilitation programs while incarcerated. This demonstrated a willingness to address his past actions and avoid reoffending.

In considering the expectations of the Australian community, the tribunal underscored the seriousness with which crimes against women, particularly sexual offenses, were viewed. These expectations applied irrespective of the measurable risk posed by the non-citizen.

The assessment of the applicant’s ties to Australia was another critical aspect of the decision-making process. Having spent 13 years in the country, the applicant had established substantial community ties. He had contributed positively to society through employment and volunteered his time during the Brisbane floods cleanup efforts, reflecting his commitment to the Australian community.

Family played a central role in the applicant’s life in Australia. His relationships with his relatives, including children, were examined. The applicant had nieces and nephews, some of whom he helped by providing assistance with moving and childcare. His cousins and nieces and nephews benefited from his presence and support.

Notably, the applicant had two daughters, Child 1 and Child 2, in Australia. Child 1, who lived with her maternal grandmother due to her mother’s abusive behavior, had a strong emotional bond with the applicant. Despite his absence, he maintained contact through social media and video calls, demonstrating a commitment to maintaining a relationship with his daughter. Child 2, born in November 2021, was taken into the care of Child Safety due to her mother’s homelessness and mental health issues. The applicant’s aunt became Child 2’s carer, and the applicant expressed a desire to be actively involved in her life. He planned to live close to his aunt, undergo counseling with Drug Arm, and adhere to Child Safety’s requirements to demonstrate his commitment to providing a stable and drug-free environment for Child 2.

Additionally, the applicant had secured a painting apprenticeship and potential job opportunities, showing a determination to support his family financially. He intended to provide both financial and emotional support to his aunt, who was caring for Child 2.

Considering the best interests of the minor children in Australia, the tribunal evaluated the nature and duration of the relationship between the children and the applicant. While there had been limited physical contact due to the applicant’s circumstances, he had made consistent efforts to maintain contact and engage with his daughters, particularly through video calls and social media. Furthermore, the applicant’s willingness to cooperate with Child Safety and his aunt, who was Child 2’s carer, indicated a strong commitment to the children’s well-being.

In conclusion, the tribunal weighed the various mandatory considerations, taking into account the weight assigned to each. After careful examination, it determined that the correct and preferable decision was to revoke the cancellation of the applicant’s visa. This decision would allow him to remain lawfully in Australia, particularly to be present in the lives of his daughters.

Written by Ross Ahmadzai

8 Sep, 2023

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