Aciek and Minister for Home Affairs (Migration)

[2018] AATA 2755

Aciek and Minister for Home Affairs (Migration) [2018] AATA 2755 (19 July 2018)

Division:GENERAL DIVISION

File Number(s):      2018/2428

Re:Aciek Akec Aciek

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Mr P W Taylor SC, Senior Member

Date:19 July 2018

Place:Sydney

The decision under review is affirmed

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

Mr P W Taylor SC, Senior Member

CATCHWORDS

MIGRATION - Class XB Subclass 202 Global Special Humanitarian visa - mandatory cancellation - non-revocation - failure to pass the character test - Ministerial Direction No 65 - serious criminal convictions - protection of the Australian community - community expectations - risk of reoffending - expectations of the Australian community - best interests of minor children - strength nature and duration of ties - hardship in the event of removal - South Sudan - non-refoulment obligations - decision affirmed

LEGISLATION

Mental Health Act 2009 (SA)

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

CASES

Ali v Minister for Immigration and Border Protection [2018] FCA 650

Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562; 208 ALR 124
ALN17 v Minister for Immigration and Border Protection [2017] FCA 726
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456
DMH16 v Minister for Immigration and Border Protection [2017] FCA 448
Drake v Minister For Immigration and Ethnic Affairs (1979) 24 ALR 577
FTYC v Minister for Immigration and Border Protection [2018] AATA 20
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Goundar v Minister for Immigration and Border Protection [2016] FCA 1203
Ibrahim v Minister for Immigration and Border Protection [2017] FCA 1218
KQHR and Minister for Immigration and Border Protection (Migration) [2018] AATA 684
Lafu v Minister for Immigration & Citizenship [2009] FCAFC 140; (2009) 112 ALD 1
Maioha v Minister For Immigration and Border Protection [2018] FCA 1016
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68
Minister for Immigration and Border Protection v Lesianawai [2014] FCAFC 141
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48;(2010) 243 CLR 164
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1
Ogbonna v Minister for Immigration and Border Protection [2018] FCA 620
Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; (2012) 251 CLR 1
Plaintiff M61/2010E v Commonwealth [2010] HCA 41; 243 CLR 319
Steyn v Minister for Immigration and Border Protection [2017] FCA 1131
SZRTN v Minister for Immigration and Border Protection [2014] FCA 303
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133; [2001] FCA 568

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

SECONDARY MATERIALS

Direction No. 65, Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA

Direction No. 75, Refusal of Protection visa relying on section 36(1C) and section 36(2C)(b)

REASONS FOR DECISION

Mr P W Taylor SC, Senior Member

19 July 2018

1. Mr Aciek was granted a Class XB Subclass 202 Global Special Humanitarian visa in February 2004. With his mother, younger brother and sister, he came to Australia in August 2004, from a Kenyan camp for refugees who had fled from the civil strife in Sudan. On 4 February 2018 Mr Aciek’s visa was cancelled, under s501(3A) of the Migration Act 1958 (“MigAct58”). Just over three months later, a ministerial delegate decided not to revoke the cancellation. Mr Aciek’s application is to review that 26 April 2018 decision.

   MR ACIEK’S CRIMIINAL RECORD

2. Since his August 2004 arrival in Australia Mr Aciek has incurred convictions for approximately 21 offences. Their basic details, including the penalties they attracted, are outlined in the Schedule to these reasons. The Schedule includes the actual date of each offence and is arranged in that chronological order. The other significant information in the Schedule indicates Mr Aciek’s age at the time of each offence, the date of each conviction, and the actual periods when he was in custody, including the date when he went into immigration detention. (I have also included in the Schedule what I regard as an appropriate categorisation of Mr Aciek’s various offences.) The Schedule details reveal the following information:

   (a)Eight of Mr Aciek’s offences involved either some form of assault, the possession of an object that had been used in assault, or disorderly conduct likely to have resulted in an assault.

   (b)Those assault related offences occurred over a 14 month period – from October 2011 to December 2012.

   (c)Four of Mr Aciek’s other offences during that period involved intentionally caused property damage.

   (d)Mr Aciek’s only convictions since December 2012 have been for offences of failing to comply with bond or bail conditions.

   (e)Mr Aciek has been in custody (either on remand, under sentence or in immigration detention) since early January 2014.

   (f)In May 2014, Mr Aciek was called up to serve the 5 month suspended sentence imposed on him following his conviction for his October 2011 offences.

   (g)On the same occasion in May 2014 Mr Aciek was sentenced to a 59 month term of imprisonment, with a non-parole period that expired on 2 March 2016.

   (h)Mr Aciek remained in prison until March 2017, about 12 months after the expiry of his non-parole period.

   (i)Mr Aciek was taken into Immigration detention immediately upon his March 2017 release from prison.

   MIGRATION ACT PROVISIONS AND THE REVOCATION DISCRETION

3. The significant consequence of Mr Aciek’s May 2014 convictions and sentences is that he thereby acquired a “substantial criminal record”, and could no longer satisfy the statutory “character test” in MigAct58 s 501(6). In those circumstances, at any time Mr Aciek was subject to full time incarceration under sentence the terms of MigAct58 ss 501(3A)&(5) imposed on the Minister a mandatory obligation to cancel his visa, without any corresponding natural justice obligation.

4. Where a visa has been cancelled, its former holder becomes an “unlawful non-citizen”. As such they are liable to be held in immigration detention cancellation – until (amongst other things) their visa is restored, they obtain another visa or they are removed from Australia:- see MigAct58 ss 189, 196. They are required to be removed from Australia “as soon as practicable” – unless they have made undetermined representations for revocation of their visa cancellation, or an undetermined application for a protection visa:- see MigAct58 s 198(2B)&(5A). The practicability limitation implicitly includes detention for the purpose of considering exercise of the Minister’s public interest discretion in MigAct58 s 195A:- Plaintiff M61/2010E v Commonwealth [2010] HCA 41; 243 CLR 319 at [27]&[35]. It also alludes to the practical necessity of fixing on an appropriate removal destination. And depending on the particular circumstances, it may permit immigration detention to continue even if the timing of future removal is not readily foreseeable:- Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 ; 208 ALR 124.

5. MigAct58 s 501CA(4) confers on the Minister a conditional discretion to revoke a mandatory visa cancellation, in response to timely revocation representations from the former visa holder. Where that person undoubtedly has a “substantial criminal record”, exercise of the discretion is subject to satisfaction that there is “another reason why” the cancellation decision should be revoked.

6. Where it falls to be exercised by a Ministerial delegate, or by this Tribunal, the “another reason” revocation discretion conferred by MigAct58 s 501CA(4)(b)(ii), is subject to compliance with any Ministerial direction authorised by MigAct58 s 499(1) & (2A). The relevant direction is “Direction no. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (“Direction no. 65”).

7. Direction no. 65 does not derogate from the Tribunal’s duty to reach the preferable decision in the particular case before it. The guidance it provides is intended to assist in reaching such a decision:-  Uelese v Minister for Immigration and Border Protection [2016] FCA 348 at [50] per Robertson J. As the Minister submitted in that case

   [35]… the Direction does not determine the law or alter the content of the law. Rather, it provides guidance and direction to decision-makers. Decision-makers are required to comply with the Direction but the Direction does not itself create, vary or remove rights, privileges or obligations. In particular, the Direction does not impose any limit on the matters that may be taken into account; properly construed, it does not stipulate the weight to be given to those matters in each and every case; and does not make relevant (in a mandatory sense) any consideration that is not already relevant by reason of the text and context of s 501 of the Migration Act.

8. The “another reason” criterion for the exercise of the revocation discretion requires an evaluative assessment of all the relevant matters. The purpose of the required evaluation is to achieve a result that is “fair and rational in all of the circumstances”:- Minister for Immigration and Border Protection v Lesianawai [2014] FCAFC 141 at [80]-[83]; 227 FCR 562. The decision must be legally “reasonable” – in the sense of having a rational foundation and a result that is not plainly unjust:- Ogbonna v Minister for Immigration and Border Protection [2018] FCA 620 at [13]-[20]. Where the discretion falls to be exercised in the Tribunal’s review jurisdiction, that jurisdiction is to be exercised for the purpose of achieving the “correct or preferable” result, having regard to the terms and purpose of the relevant statutory provisions, and the available relevant information:- Drake v Minister For Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589. It necessarily follows that the required consideration must address the matters that favour revocation and those that do not:- Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66 at [30]-[32]; Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at [38]. The process of addressing those matters must involve “an active intellectual engagement” and genuine, proper realistic consideration of the relevant information:- Lafu v Minister for Immigration & Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 at [48]–[49]; Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [26]; Maioha v Minister For Immigration and Border Protection [2018] FCA 1016 at [24]-[26].

9. Visa cancellation precludes a non-citizen from applying for, or obtaining, certain other classes of visa:- MigAct58 s 501E(1). That preclusion does not apply to applications for either a protection visa or a bridging visa pending the person’s removal:- MigAct58 s 501F(3) & Migration Regulations 2.12AA. Either refusal or cancellation of a protection visa application precludes a further protection visa application - subject to the favourable exercise of a Ministerial public interest discretion:- MigAct58 ss 48 & 48B(1)&(1B). However, a Class XB visa is not a Protection visa, and the February 2018 cancellation of Mr Aciek’s visa does not preclude him making a valid application for a Protection visa.

   MINISTERIAL DIRECTION NO. 65

10. Against that background, and notwithstanding that it is a publicly available document, it is a useful emphasis to outline the content of purpose of Direction no. 65, and the substance of the guidance it provides. The Preamble (in Section 1 of Direction no. 65) details the objectives of the relevant MigAct58 provisions. It then requires the discretion (whether relating to visa grant, cancellation or revocation cancellation) to be exercised after consideration of “the specific circumstances of the case”:- cl 6.1(2) &(3). The immediately following part of the Preamble provides a statement of “general guidance” for decision-makers. It commences with a declaration of governmental commitment to “protecting the Australian community from harm as a result of criminal activity”. (Its other, somewhat obscure, reference to “other serious conduct” may allude to proven misconduct where a person’s mental incapacity precluded formal conviction:- see MigAct58 s 501(7)(e)&(f).)

11. The Preamble then sets out seven “principles”. They are described as providing “a framework” within which decision-makers should operate. The “principles” are said to “reflect community values and standards” relevant in assessing whether “the risk of future harm from a non-citizen is unacceptable”. They are stated to be of “critical importance” in furthering the objective of the Government’s protective commitment: - cl 6.2(1)&(3).

12. The seven “principles” set out in Direction no. 65 can be re-stated in the following propositions:

    (a)the character of a non-citizens’ lawful presence in Australia is a conditionally available statutory right (described as a “privilege”) to which attach corresponding expectations of law abiding respectful conduct, and harmlessness to both individuals and the Australian community: - cl 6.3(1).

    (b)the commission of “serious crimes” (non-exhaustively exemplified as violent, sexual offences or those where victims were disabled, elderly or children) attracts a general community expectation of visa refusal or cancellation:- cl 6.3(2)&(3).

    (c)the range of tolerance for “criminal or other serious conduct” by non-citizens, will be influenced by the nature of the conduct, the period of time the non-citizen has lived in Australia and the extent to which they have “been participating in, and contributing to, the Australian community”. The degree of tolerance is stated to be “low” where the visa holder’s Australian community presence has been “only for a short period of time”. It is described as “higher”, where the person has lived in Australia since an early age, or “for most of their life”:- cl 6.3(5).

    (d)the extent and nature of a non-citizen’s positive contribution to the Australian community are relevant considerations in the exercise of the statutory function:- cl 6.3(7).

    (e)any adverse impact of visa cancellation on Australian resident minor children (and on other immediate family member residents), is also a relevant consideration to which decision makers must have regard:- cl 6.3(7).

    (f)in “some circumstances” either the nature of the person’s conduct, or the risk of associated harm, may be so serious as to be unacceptable, despite “strong countervailing considerations”:- cl 6.3(4).

13. Section 2 of Direction no. 65 deals specifically with the exercise of the various discretions. It begins with a general requirement that decision-makers (i) exercise the discretion “informed by the principles” (ii) take into account “the primary and other considerations relevant to the individual case”, and (iii) recognise that primary considerations “should generally” be given greater weight:- cl 7 & 8. It then differentiates between cancellation, grant and revocation decisions, but in each case decision makers are directed to “primary” and “other” considerations.  Part C of Section 2 articulates the “primary” considerations and some of the “other” considerations, to which regard must be had. Those “primary” considerations (which are in fact common to all the discretions) are:-

    (a)the protection of the Australian community – ie., the governmental commitment declared in the Preamble of  Direction no. 65 ;

    (b)the expectations of the Australian community; and

    (c)the best interests of Australian resident minor children.

14. Clause 14(1) of Direction no. 65 obliges decision makers to take into account (any) “other considerations … where relevant”. It then expressly states that those “other” considerations include “but are not limited to” five stated topics:- SZRTN v Minister for Immigration and Border Protection [2014] FCA 303 at [86].

15. The five specifically identified “other” considerations discussed in Part C clause 14 are:-

    (a)the strength, nature and duration of the person’s Australian ties

    (b)the nature and extent of any difficulties the person is likely to encounter if removed from Australia as a result of the visa cancellation decision

    (c)applicable international non-refoulement obligations (in practical terms, the criteria in MigAct58 s 36(2)(a)&(aa))

    (d)the impact of visa cancellation on Australian business interests, and

    (e)the impact of any revocation decision on victims of the person’s conduct.

16. Only the first three of those five “other” specifically identified considerations require specific consideration in the context of Mr Aciek’s circumstances. There is no evidentiary foundation for Mr Aciek’s removal from Australia to have any significant impact on Australian business interests. Nor is there any evidentiary foundation that requires consideration of the interests of particular victims – other than in the context of (i) recognition of the serious nature of at least his November 2012 offences and (ii) proper assessment of his risk of re-offending.

    PROTECTION AND COMMUNITY EXPECTATION

17. Only a brief outline of the nature and circumstances of Mr Aciek’s more significant offences is necessary to point to the likelihood that the protection consideration required by Direction no. 65 has to be regarded as a weighty consideration in the exercise of the revocation discretion. That outline is set out in the following paragraphs.

18. The 30 October 2011 offences:- This involved an unprovoked incident on an evening where Mr Aciek held a stanley knife to the throat of a person who was playing poker in a country hotel near Adelaide. Unsurprisingly, the incident significantly traumatised the person involved. More than six months afterwards the person reported ongoing distress and the need for psychological counselling.

19. The 19 May 2012 offence:- This involved Mr Aciek’s alcohol affected behaviour near and outside two hotels in Adelaide’s Rundle Street area. At one point Mr Aciek was observed attempting to punch people who were outside one of the hotels. He went into another hotel and was escorted off the premises after appearing to punch and kick at patrons. Once outside that hotel, he was observed attempting to hit pedestrians who were walking near the hotel. Two of them restrained him, and summoned the police. When the police arrived Mr Aciek was verbally abusive and lashed out with his feet, again trying to kick people. He was handcuffed and taken into custody.

20. The 26 October 2012 offences:- The three offences involved a series of incidents in suburban Adelaide. In the first incident Mr Aciek hit a stranger who was walking in the street. Mr Aciek hit him in the face with a bottle of brandy he was carrying. He then picked up a brick and attempted to hit the person again. The intended victim grabbed the brick, but Mr Aciek then hit him on the back of the head with the bottle. That blow knocked the victim to the ground. Whilst he was on the ground, Mr Aciek kicked him in the stomach. A little later Mr Aciek was seen to intentionally damage the side mirror of a parked car apparently after chasing another person around the car park area. A little later on, Mr Aciek threw a bottle at, and shattered, the glass side panel of a bus stop shelter. Still later he threw a brick through the open window of a parked truck and caused a small graze on the arm of the person sitting in the passenger seat of the truck. When the truck driver got out and confronted Mr Aciek a struggle ensued. In the course of that struggle the driver sustained a small cut on the inside of his mouth. When police arrived shortly afterwards Mr Aciek was detained under section 57 of the Mental Health Act 2009 (SA).

1. The 8 November 2012 offences:- These offences followed an evening when Mr Aciek had been drinking at home with a friend and got involved in an argument. The argument must have been heated, because it resulted in the police being called. Mr Aciek was taken to the city watchhouse but released, without charge, early the next morning. He then went to the main passenger bus depot in Adelaide’s CBD. There, in what the sentencing judge called an “alcoholic haze”, Mr Aciek first hit several of the taxis parked near the terminal with a metre long tree branch. A little while later, he set upon one of the taxi-drivers who had been standing talking outside the taxis. He hit the man on the head and upper body with the tree branch, and knocked him to the ground. He hit him several more times with the tree branch when he was on the ground. The man’s right shoulder was fractured and dislocated in the attack. He also suffered multiple abrasions to his face and elbow. The man’s injuries required several surgical operations. Because of the psychological impact of the incident, the man gave up his casual (one day a week) job as a taxi driver.

2. The 14 December 2012 offence: - Mr Aciek had been granted bail on 5 November 2012 (in relation to the 26 October 2012 offences). While still on bail, and in an intoxicated state, he caused a disturbance at a suburban hotel. When the police arrived he struggled with them. During the course of the subsequent trip to the Port Adelaide police station he was continually abusive and began spitting all over the back of the front passenger seat. He also attempted to kick his legs out of the floor well and through the centre of the two front seats. When he was further restrained he spat onto the chest and abdomen of the police officers.

3. The aspects of Mr Aciek’s offences that tend to emphasise the weight that should be accorded to the protective consideration include the following:-

   (a)Mr Aciek’s principal offence (in November 2011) involved an unprovoked, sustained attack on people otherwise unknown to him, that resulted in serious injury.

   (b)At least two of Mr Aciek’s other offences (in October 2011 and October 2012) involved similar unprovoked assaults, or threats of assault, and the circumstances of each could easily have resulted in serious injury.

4. It is relevant to note that Mr Aciek’s excessive alcohol consumption, and his perceptions of racial prejudice and unfair treatment, have contributed to his offending. Perceptions of both kinds are evident in his substantially contemporaneous explanations for his conduct in relation to the November 2012 assault. In his interactions with the attending police officers he complained that because he had been apprehended and brought to the city earlier in the morning, it was the police who were in some way responsible for what occurred. In addition, he complained that one of the taxi drivers had made an inflammatory racial remark, and that had prompted his reaction.

5. Mr Aciek’s assertion of racial abuse provocation in relation to the November 2012 offences was vaguely expressed in his police interview, and specifically rejected by the sentencing judge. There is nothing to support it any of the relevant witness statements. Indeed, Mr Aciek’s initial offence that morning involved bashing a car with a tree branch in what the available evidence suggests was entirely without provocation of any kind.

6. In the kaleidoscope of physical appearances, races, cultural backgrounds, and behavioural preferences that are commonplace in substantial parts of the contemporary Australian community, it is inevitable that the friction of daily intercourse will produce occasions where conduct is insensitive. Sometimes it may perhaps even reasonably be regarded as inflammatory by the person to whom it is directed. A person who is regularly exposed to conduct of that kind may understandably develop a reactive sensitivity. And there may be occasions where their response to it, however inappropriate it is when viewed objectively, should be regarded as an understandable, but aberrant, over-reaction that is uninformative in assessing the likelihood of their future misconduct. But whatever Mr Aciek’s subjective perceptions may have been, his past offending conduct cannot reasonably be characterised as either understandable or uninformatively aberrant.

   Assessments of Mr Aciek’s risk of re-offending

7. The circumstances of Mr Aciek’s 2012 offences tend to suggest the reality of a real risk of similar future offences. That suggestion obtains added force from the objective reality that Mr Aciek has consistently been assessed as having such a risk. Indeed, the assessments that have been made since his May 2014 incarceration have uniformly characterised his re-offending risk as high. All of those assessments appear to be amply justified by the available evidence. The justification for that view will be readily apparent from the immediately following paragraphs of these reasons.

8. 16 January 2014 - forensic psychological assessment:- This was an assessment carried out for the dual purposes of (i) aiding a determination of Mr Aciek’s competence to plead to / stand trial for the offences of which he was convicted in May 2014, and (ii) providing information relevant to sentencing, in the event of his fitness and conviction. This report contained a detailed account of Mr Aciek’s personal history, and his situation prior to the various 2012 offences. That history detailed Mr Aciek’s history of flight from South Sudan, upbringing in a Kenyan refugee camp and experiences in Australia. It outlined aspects of his cultural heritage, the significant impact of the death of a number of his family members in 2012, the fragmentation of his relationship with his family, and his isolation from active participation in the Sudanese community in South Australia (apparently after the latter part of 2011, as a result of his various offences). The report noted Mr Aciek’s good English literacy (but lesser proficiency with conversational English), and good work history up until he started university studies in about 2010.

9. The psychologist ultimately concluded that there was no evidence Mr Aciek suffered from any psychotic illness, intellectual disability or psychiatric disorder. He did however, go on to make a number of observations which convey the impression that he assessed Mr Aciek as having a significant risk of re-offending. Those observations included the following:-

   (a)Mr Aciek possessed some recognised static and dynamic criminogenic risk factors, and had a moderate to high risk of re-offending. (The context of the report indicates that those factors included (i) poor relationship with police, (ii) binge alcohol use, and (iii) anger management problems, mainly related to alcohol abuse.)

   (b)Mr Aciek’s history and presentation were consistent with chronic Post Traumatic Stress Disorder (“PTSD”), likely to have been exacerbated by binge alcohol use.

   (c)Mr Aciek’s PTSD resulted in “hyperarousal”. That characteristic, combined with his culturally influenced masculine assertiveness, and the disinhibiting effect of excessive alcohol consumption, and his perceptions of racist attitudes towards him, had exacerbated his anger management problems.

   (d)Despite the fact that Mr Aciek had twice been assaulted, and placed in protective custody, during previous periods of incarceration (likely to have been whilst on remand in 2013), and notwithstanding the likelihood that it would exacerbate his mental health problems, the threat of incarceration was unlikely to operate as a significant deterrent to Mr Aciek against future offending - unless it was combined with a comprehensive rehabilitation plan that addressed his underlying problems. If that contingency was met, there was a “fair” prospect of his not re-offending.

10. 25 September 2014 – Offender Risk Needs Inventory assessment:- In September 2014 Mr Aciek was interviewed at the Yatala prison for the purpose of assessing his risk of re-offending, and identifying his rehabilitation needs. The contents of that report reflect some of the concerns and impressions apparent in the January 2014 psychological assessment. In the September 2014 assessment report the clinician expressed the view that Mr Aciek appeared to under report the extent of his past alcohol use, and did not appreciate the difficulties it had caused him, despite the apparent circumstances of his various offences, including the escalation in the seriousness of his offences.

11. After noting that Mr Aciek did not regard his current sentence as fair, was reluctant to engage in rehabilitation programs, and professed to want to leave Australia, the report went on to make observations to the following effect. Mr Aciek’s history of trauma, refugee status, alcohol abuse, and limited prosocial supports suggest that he experienced ongoing generalised issues. He appeared to have underlying anti-social attitudes and resentments. Those issues, attitudes and resentments contributed to demonstrably poor anger management skills, and a pattern of intimidating, threatening and violent behaviour that had included the use of weapons. Furthermore he presented with cognitive distortions in relation to both his offending and his alcohol use, and difficulties with emotional regulation. Later the report rather glumly concluded that Mr Aciek “had no identified protective factors” (given his apparent social isolation and absence of post-release plans) and that his “generally negative outlook and disdain” appeared to be limitations on the ability to attach any significance to any positive aspects of his current and likely future circumstances.

12. 19 February 2015 - senior psychologist’s assessment:- One of the principal recommendations made in the 25 September 2014 report was that Mr Aciek should be assessed to determine his eligibility to participate in a formal Violence Prevention Program (“VPP”) whilst in prison. That assessment was apparently carried out in late 2014 or early 2015, and is the subject of a formal report dated 19 February 2015. This assessment apparently included the use of an “actuarial assessment tool”, which had produced results consistent with Mr Aciek having a high risk of re-offending. (That result seems likely to have reflected the assessing clinician’s observations about a number of Mr Aciek’s circumstances and history, including his “hyper vigilance”, “hostile attributional style, poor emotional control … and substance abuse”.) On the basis of that risk assessment result, Mr Aciek was considered to be a suitable candidate to participate in the violence prevention program.

13. However, the assessing clinician expressed some reservations about Mr Aciek’s proficiency in oral (as distinct from written) English, and the potential barriers his apparently compromised oral comprehension could present to effective participation in any rehabilitation program. The clinician went on to identify another factor that could limit Mr Aciek’s rehabilitative progress. It was that his PTSD symptoms might be exacerbated “by any exploration of his developmental years”. That concern prompted the clinician to suggest that Mr Aciek’s rehabilitation prospects would likely be enhanced if he received appropriate treatment for his psychiatric symptoms before attempting to participate in the violence prevention program.

14. 5 January 2017 - parole report:- The non-parole period for Mr Aciek’s 7 May 2014 sentences expired in early March 2016. But he was not released then. In fact he was not released from prison until March 2017, and then apparently only for the purpose of facilitating his transfer to immigration custody.  The likelihood that he would not otherwise have been released, and that he was still regarded as having a high risk of re-offending, emerges from the contents of this parole report. This report was based on an interview with Mr Aciek and a review of earlier information, including the 2014 psychologist’s report, the 2014 sentencing remarks, the 2015 VPP program assessment report, and Mr Aciek’s prison health records.  The overall view expressed in the report was that Mr Aciek was not a suitable candidate for parole release. He had extreme anti-social attitudes, was not motivated to address any of the issues involved in his offending risk, was unlikely to comply with any parole conditions, presented a high risk of re-offending and presented a high risk of potential harm to others. This dispiritingly pessimistic assessment was based on (i) Mr Aciek’s lack of insight into his responsibility for his offending, and his perception of having been treated unfairly, (ii) his failure to complete any rehabilitation or behaviour management programs whilst in custody, (iii) the number of occasions when Mr Aciek was reported to have been involved in assaults and disruptive behaviour in prison, (iv) his past history of merely superficial engagement, and non-compliance, with previous periods of supervised release, (v) the appearance that he had been living “quite an isolated lifestyle with minimal supports, (vi) his lack of insight into the impact of excessive alcohol consumption on the risk of re-offending, and (vii) his past refusal to consider or undertake psychological counselling or psychiatric intervention,

    Psychiatric assessment

15. Mr Aciek went into immigration detention in early March 2017, immediately following his release from prison. In a GP consultation in the latter part of April 2017 he complained about the quality of the food that he had been given in jail and expressed distrust of “the system” in the Villawood Immigration Detention Centre (“VIDC”), including distrust of the medical staff. This prompted a psychiatric assessment which was carried out about a week later. In the course of that encounter he asserted that white people thought he had an intellectual impairment and that he was very frustrated by “Australian racists” who put him down and disrespected him. He said he did not really want to go back to South Sudan, but the way he perceived he was being treated made him consider that returning was a better option for him. Later he became annoyed and frustrated with the psychiatrist and started to speak in another language. When the psychiatrist could not reciprocate Mr Aciek terminated the consultation. The psychiatrist’s notes record hearsay information from one of the immigration centre officers to the effect that Mr Aciek had a short temper and on a few occasions had faced off with other detainees. The psychiatrist concluded that Mr Aciek was a paranoid person who had no friends, and with whom it was very difficult to engage. He was reported to have made “enemies” within VIDC because of his careless and disrespectful behaviour towards others. Recognising the limited (and to some extent hearsay) information on which he had relied the psychiatrist reported that he was “rather convinced” that Mr Aciek had a severe paranoid personality disorder and was possibly psychotic. The psychiatrist considered that Mr Aciek was at a high risk of harm to others and an equally high risk of being harmed by other detainees.

16. The second relevant psychiatric assessment was on 30 January 2018, and apparently followed Mr Aciek’s verbal threat to cut the throat of one of the immigration centre officers. The report of this consultation described reports of Mr Aciek’s behaviour as paranoid, irritable, sarcastic, erratic and at times bizarre. When he was encountered by the psychiatrist on this occasion he had isolated himself from other detainees who were, at least reputedly, “trying to avoid him because of his paranoid state of mind”. His interaction with the psychiatrist was manifested by initial anger which increased to a point where he threw food at the psychiatrist and the attending nurse and then paced around the yard angrily. Being unable to engage with Mr Aciek to any meaningful extent the psychiatrist reviewed the medical notes and discussed Mr Aciek’s circumstances with VIDC officers and detainees. The psychiatrist expressed a conviction that Mr Aciek suffered from a psychotic illness likely to be paranoid schizophrenia. He thought that the condition had been present for a long time, that Mr Aciek was not able to take care of himself, had lost his social skills, and had refused treatment because of his lack of insight. The psychiatrist considered that Mr Aciek needed scheduling and should be transferred to an emergency department for further assessment. He was scheduled and transferred to Bankstown Hospital. But he was returned to VIDC shortly afterwards. There he was recorded in early February 2018 as displaying no evidence of manic behaviour or psychotic symptoms - despite remaining frustrated with his prolonged period of detention and the circumstances relating to it.

17. In late February 2018 Mr Aciek was interviewed at VIDC for the purpose of a psychological assessment arranged by his brother and his legal representative in the current proceedings. The results of that assessment were set out in a 6 April 2018 report. The contents of that report disclose the difficulties the clinician encountered in making any fully detailed and thorough assessment. They included Mr Aciek’s initially “rude, belligerent and obnoxious behaviour”, and his pervasive perception of having been treated unfairly. They were highlighted by Mr Aciek’s increasing frustration during the interview and his ultimate refusal to participate in the process. That refusal appears to have been associated with increased agitation Mr Aciek demonstrated when the psychologist attempted to get Mr Aciek to discuss his traumatic past experiences and his continuing PTSD symptoms.  Notwithstanding what he described as the “problematic” nature of his own assessment, and relying heavily on the information contained in the previous 2014 assessment (see paragraph 28 above) the psychologist considered that Mr Aciek was likely to be continuing to suffer from PTSD and persistent, moderately severe, depression. The psychologist noted that Mr Aciek had not received any significant treatment for those disorders during his incarceration and detention. The psychologist went on to opine that

    Trauma events, unlike depressive disorders do not spontaneously resolve when removed from the stressful environment or situational trigger. Psychological trauma requires psychological treatment in order to alleviate the sequelae of its symptoms, including anxiety, hostility, hyper awareness, exaggerated negative beliefs, distorted cognitions about the traumatic event, angry outbursts, and reckless or self-destructive behaviour.  … these symptoms are in part in play during Mr Aciek’s assessment …

18. About a month later, in late March and early April 2014, there are disturbing notes of Mr Aciek’s behaviour. In late March 2014 he became very aggressive to another detainee whom he was reported to have punched and kicked several times. This raised a question about whether further psychiatric assessment was required. Three weeks later Mr Aciek’s behaviour was described as bizarre. It involved threats to other inmates and foul-smelling, squalid conditions within his room at VIDC. In a medical review on 25 April 2018 Mr Aciek was observed to be “definitely psychotic with persecutory, grandiose and religious delusions”. The psychiatrist considered that the principal diagnosis was manic psychosis with a differential diagnosis of untreated schizophrenia. The psychiatrist reported that Mr Aciek definitely required treatment in a declared mental health facility.

19. Following that assessment that Mr Aciek was in fact admitted to hospital where he was diagnosed with schizophrenia and prescribed various anti-psychotic medications. The final report of the admission describes aggression as the predominant risk posed by his mental state. It described him as having been secluded after threatening violence towards another patient in the hospital. Even when he was not aggressive Mr Aciek was said to be irritable, racially abusive and lacking insight into his behaviour and condition. The condition was described as an acute exacerbation of chronic schizophrenia.

1. Mr Aciek was released back into VIDC custody in mid-May. On a further psychiatric consultation on 24 May 2018 his condition appeared to have improved somewhat, but he still refused to engage in any meaningful way. The attending psychiatrist considered that he was still likely to be psychotic.

   Risk of reoffending - conclusion

2. The various reports and assessments I have outlined above, convey a consistently expressed view that Mr Aciek represents a very significant risk of re-offending, and a real risk that any such future offending might well involve serious injury to others. That view takes into account the nature and circumstances of his past offences, his behaviour whilst in custody and immigration detention, his psychiatric condition and psychological disorders, and the absence of any significant treatment for his psychological disorders. Those considerations amply justify, and indeed require, the conclusion that there is a high risk of Mr Aciek re-offending.

3. It was strongly put on Mr Aciek’s behalf that a contrary view of his re-offending risk was justified – principally by three considerations. The first was the unlikely to be repeated impact of the combination of family deaths that occurred in 2012, and were said to have deeply affected Mr Aciek. The second was the available support offered by his family. The third was the clear rehabilitation strategy outlined in the 2014 psychological assessment report.

4. The first of those matters alluded to the following events:-

   (a)May 2012 – Mr Aciek’s brother and uncle died in South Sudan

   (b)June 2012 – another of Mr Aciek’s brothers died in South Australia in unexplained circumstances

   (c)November 2012 - another one of Mr Aciek’s uncles died (or at least he learned of his death)

   (d)December 2012 - Mr Aciek’s father died in South Sudan.

5. The personal impact of these events on Mr Aciek was recounted in the January 2014 psychological report, and apparently accepted by the sentencing judge in May 2014. After alluding to the observation in the report that Mr Aciek had become visibly distressed when he was asked questions about his childhood experiences in the Kakuma refugee camp in Kenya, the judge made the following observation in the course of his sentencing remarks

   For those of us who are being brought up in the safety and comfort of Australia your early life is difficult to imagine. You have suffered additional tragedy with the deaths of your uncle and brothers who passed away in South Sudan, the death of your father, with whom you did not have a great deal of contact in more recent years, and the unexplained death of your brother in Paralowie in 2012. I accept that you have internalised grief, have not sought the necessary help for your psychiatric and psychological issues and these offences flowed from that.

6. One of the features of the present case is that Mr Aciek neither made any personal representations in response to the visa cancellation decision, nor provided any statement or evidence at the review hearing. The Minister’s submissions were critical of that lack of personal information from Mr Aciek. But there is no reason to doubt that both Mr Aciek’s traumatic past, and the family deaths in 2012, had some causative influence in his offending. The difficulty is that they do not provide any significant basis for satisfaction that Mr Aciek’s future risk of re-offending is insubstantial.

7. The second aspect of the submissions advanced on Mr Aciek’s behalf sought to contrast Mr Aciek’s likely future circumstances with those that prevailed at the time of his offences. More specifically, one of the matters remarked on in both the 2014 psychological assessment and the 2017 parole report was Mr Aciek’s apparent absence of supportive social networks. In the 2014 assessment report he expressed disappointment at the fragmentation of his immediate family in Adelaide, and his apparent isolation from the South Sudanese community there (because of his offences and imprisonment).  In the 2017 parole report he was described as having lived “quite an isolated lifestyle with minimal supports”. The reality and extent of that isolation was rather corroborated by the evidence Mr Aciek’s mother, sister, (step)brother and (step)sister and step-mother gave in the present proceedings. Each of these people gave clear and insightful evidence that firmly established their affection for Mr Aciek and their willingness to support him. But their evidence also tended to demonstrate that, in recent years, up until Mr Aciek’s current immigration detention, they had had little effective contact with him. Indeed, during Mr Aciek’s prison incarceration (from early 2014 to March 2017) they gave evidence that they had not visited Mr Aciek (because he had refused to accept their attempts to visit) and had almost no telephone contact with him. Mr Aciek’s sister speculated that the reason for his substantial withdrawal was embarrassment about the extent to which he had failed to measure up to the role required of him as the eldest of his father’s sons, and the head of his father’s extended family.

8. I accept the sincerity of the evidence proffered by Mr Aciek’s close relatives in these proceedings (particularly that of the siblings to whom I referred above). But the reality is that their proffered support for Mr Aciek is more aspirational than specific, and its likely effect is problematic. Their evidence, sincere and impressive of the extent their commitment to Mr Aciek’s well-being as it was, cannot deflect attention from the weight of the evidence that requires the conclusion Mr Aciek presents a very significant risk of re-offending – at least whilst his psychological and psychiatric conditions cannot be shown to have been effectively treated and stabilised. And the reality is that no such treatment has been consistently sought by, or provided to, Mr Aciek.

   EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

9. Where a person has committed “serious crimes” one of the Direction no. 65 principles states a community expectation that their visa status should be refused or cancelled:- see cl 6.3(2). Although this expectation is stated as an imperative, the context of the other principle statements indicates it is not an inflexible direction.  It neither requires decision makers to give it priority nor supplants consideration of the totality of primary and other considerations:- Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133; [2001] FCA 568 at [31]-[34]. But the importance of community expectation, as an primary consideration, is patent in the content of cl 13.3. It is in the following terms:

   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.

10. In YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, Mortimer J said that this description of “community expectation” in Direction no. 65 operated as a prescriptive statement. Her Honour said that

    [76] In substance this consideration is adverse to any applicant. … 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.

11. The thrust of Mortimer J’s observation was to emphasise the prescriptive nature of the concept of community expectation that cl 13.3 sets out. Her Honour did so by linking the expectation to the circumstance of a person who had committed “serious crimes of a certain nature”. That actual expression does not appear in cl 13.3 itself. (Clause 13.3 merely uses the more condign expression “offences”.) Its adoption by Mortimer J appears likely to have been the result of a view that the community expectation in the penultimate sentence of clause 13.3, and the reference to the Government’s views, pointed back to the statements of principle in clauses 6.3(2) and 6.3(3), with their express reference to “serious crimes” and the exegesis illustrating the inclusion of violent and sexual crimes in that description.

12. A submission made on Mr Aciek’s behalf is that the community expectation concept would extend to recognition of, and sympathetic allowance for, the personal circumstances (traumatic past, recent bereavement, and psychological / psychiatric conditions) that have contributed to his past offences. Each of those matters are certainly relevant to the exercise of the revocation discretion – because they bear upon (at least) the risk of re-offending and the hardship likely to be occasioned by removal. But, as Mortimer J observed, the concept of community expectation expressed in clause 13.3 does not involve an empirical enquiry or speculative assessment. It proceeds as a declaration of expectation that is principally dependent on the nature of a person’s offences and their characterisation as involving “serious crimes”.

13. It is not necessary in the present case to explore the possible limits of the concept of “serious crimes”. Mr Aciek’s unprovoked random assaults in 2012, particularly the 8 November 2012 assaults, certainly merit that characterisation. And although the statement of community expectation in cl 13.3 needs to be reconciled with the permissive tolerance contemplated by the statement of principle in cl 6.3(5), the nature of Mr Aciek’s assaults fall outside any reasonable concept of permissible tolerance if, as I consider is the case, there is a real and significant risk of similar future re-offending. Consequently, the Direction no. 65 concept of community expectation points strongly in favour of maintaining the visa cancellation decision.

    BEST INTERESTS OF CHILDREN

14. Mr Aciek has no children of his own. But he is the eldest son in a family of considerable potential size. Consistent with the cultural heritage of which he was part, Mr Aciek’s father had seven wives. At least three of those ladies (including Mr Aciek’s biological mother) came to Australia in about 2004. There is a limited amount of evidence, but it tends to establish that they have something in the order of 20 Australian resident minor grandchildren. Mr Aciek’s sister has three children (aged 2, 4 and 6). His stepbrother, who lives and works in Sydney, has three children (aged 5, 3 and 2). His stepsister, who also lives in Sydney, has a two year old son. Another stepbrother, who lives in Melbourne, has at least three children (aged 9, 7 and 5).  In addition, one of Mr Aciek’s cousins, who lives in Adelaide has several children. So also does another stepbrother who lives in Melbourne.

15. The best interests of each of these children are primary considerations in the exercise of the discretion. But they are not necessarily determinative considerations: Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568; 107 FCR 133 at [32]. The paucity of the evidence in relation to their individual circumstances, and the uncertain extent and quality of Mr Aciek’s future interaction with them, confounds comfortable satisfaction about their best interests (beyond the generality the Minister conceded):- see Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203; (2015) 151 ALD 107; (2015) 319 ALR 181 at [67]. Those matters also confound satisfaction that is appropriate, given the other relevant considerations, to treat those best interests as determinative of the preferable outcome of the exercise of the revocation discretion:- Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568; 107 FCR 133 at [33].

16. It will be readily apparent from the fact that Mr Aciek lived in Adelaide, and has been incarcerated, or in immigration detention, continuously since early January 2014, that he has not had any direct physical contact with any of the children in that period – apart from occasional visits since he was moved to the VIDC in March 2017. There is nothing to suggest that Mr Aciek ever formed part of the residential environment of any of the children, or contributed to any extent in their support or upbringing. So far as is known each of the children lives with, and is well supported by and provided for by, their natural parents. Some of the younger children (specifically his stepbrother’s five and three year olds) have visited Mr Aciek at VIDC and express affection for him. But the reality is that their interaction with him has been limited, and there is no real and substantial basis for reaching a positive conclusion that his removal would have any significant impact on them.

17. Furthermore, in considering the best interests of children Direction no. 65 requires regard to the extent that the visa-holder would be likely to play a positive parental role in the child’s upbringing. The proposition that Mr Aciek would be likely to play any such positive role is very problematic – given his past conduct, his long standing psychological conditions, and his (at least currently assessed) high risk of re-offending.

18. In the present case the Minister’s representative conceded the generality that the best interests of the various nieces and nephews who formed part of Mr Aciek’s extended large family group would likely favour his continued Australian residence. But the concession was accompanied by emphasis on its generality, and on the absence of any specific evidence that Mr Aciek either had played, or was likely to play, any significant role in the development and care of any individual child. Indeed, and despite the evidence that Mr Aciek had contributed some financial assistance to his father prior to his death in December 2012, the submission was that any such contribution to the children was improbable given (i) the evidence suggesting his social isolation, and fragmentation of family relationships (since apparently at least about 2010 / 2011), (ii) the fact that he had been in prison or immigration detention since January 2014, and (iii) the appearance that the children were well cared for and supported by their biological parents.

19. The emphasis of the Minister’s submissions was that the paucity of the evidence precluded any significant weight being given to the proposition that the best interests of Mr Aciek’s various nieces and nephews favoured the retention of his visa status. That emphasis was justified. Beyond the broad, and comparatively uninformative generality the Minister was prepared to concede, there is no evidentiary basis for a conclusion that best interests of any of the children is a weighty consideration favouring Mr Aciek’s continued status as a holder of his Class XB visa.

    AUSTRALIAN AND FAMILY TIES

20. Mr Aciek was born in South Sudan, probably in the Bor area just north of Juba, in February 1985. When he was four years old his mother fled with him and his two siblings, first to Ethiopia and then to Kenya. He was raised in the extremely difficult circumstances of a Kenyan refugee camp, where he obtained the equivalent of a year 12 education. He lived in the refugee camp until his August 2004 arrival in Australia at the age of nineteen. He is now 33 years of age.

21. After their arrival in Australia, Mr Aciek, his mother and sister initially settled in Adelaide. In the early years he found work as a labourer and as a process worker, and participated in a community soccer team. He also had various roles as a community educator (with Relationships Australia) and as a volunteer (with the Australian Refugee Association). At some stage (probably around 2009) he moved to Murray Bridge and worked in abattoirs there. Some time after that his mother took up work in Swan Hill in Victoria – at least for a time. He stopped full time work some time in about 2010 and enrolled in a degree course at Flinders University – and at least initially took up residence on campus.  (The course was variously described as one in law or business studies.) But by the time of the psychological assessment in January 2014 and the May 2014 sentencing he was described as having no stable accommodation, living a transient lifestyle and lamenting the fragmentation of his family and isolation from the South Sudanese community.

22. In paragraph 53 above I provided a brief outline of Mr Aciek’s Australian resident family members. Notwithstanding his 2014 reports of family fragmentation, and the observations of an apparent lack of a supportive network in the 2017 parole report, in February this year the various family members gathered to discuss Mr Aciek’s circumstances and support the representations to be made on his behalf for the revocation of his visa cancellation. Some ten members of the family, including his mother, sister, two stepbrothers (and their wives), stepsister, stepmother and two cousins, signed a commendation letter. The letter outlined details of Mr Aciek’s extended family. It said that all the known relatives on his mother’s side of the family lived in Melbourne. Various other uncles from his father’s side of the family (with whom, I infer, there has been less contact) lived in Sydney, Melbourne and Adelaide.

23. The letter went on to describe Mr Aciek as having been getting on well in Australia until the series of family deaths in 2012:- see paragraph 43 above. (That precise timing may overstate the position somewhat - having regard to Mr Aciek’s October 2011 offences.)  It then acknowledged his various offences and convictions and said that the adverse impact of Mr Aciek’s offences on the family would only be compounded by the consequences of visa cancellation. The letter claimed that the various family members would be devastated and shattered by Mr Aciek’s removal from Australia. Inferences readily to be drawn from the contents of the letter was that the impact of his removal would be the greater because (i) of the bond the family had because of the traumatic past they had shared, (ii) the positive changes that family members had seen in Mr Aciek since they began visiting and contacting him at VIDC, (iii) the optimism that, with the family’s support, he could avoid future offending, (iv) their respect for his status as the eldest son and leader of the family, since his father’s death, and (v) their concern that he would be severely disadvantaged – because of his psychological issues, lack of familiarity and lack of support – if he were to be returned to South Sudan.

24. Mr Aciek’s 14 year presence in Australia, especially after the traumatic circumstances of his upbringing, is a significant consideration. So also is the effect that his removal is likely to have on the remaining members of his family. That effect must be regarded as intangible, given his limited past work history, reported isolation in more recent years, his substantial period of incarceration, and the real risk of his future re-offending. But the sense of loss that the various family members are likely to feel in the event of Mr Aciek’s removal is likely to be significant – both because of his physical absence and the apprehensions they have expressed in their commendation letter about the difficulties he will face if required to return to South Sudan. That is a country where (i) he has not lived since he was four years old, (ii) he will not have the same close family support that is available to him in Australia, and (iii) he will likely suffer from an exacerbation of his psychological conditions.  

1. Direction no. 65 requires regard to the “strength, nature and duration” of the person’s Australian ties. Implicitly familial ties (with persons who are permanent residents) are significant considerations that favour the restoration of visa status. But other aspects of the person’s Australian presence, especially against the background of serious offences, and a significant risk of re-offending, are matters that call for an inherently difficult and impressionistic assessment. That assessment, when required to be carried out in conformity with the “principles” would require significantly greater ties than those that apply to Mr Aciek’s circumstances, before they could properly be accorded sufficient weight to make it appropriate to conclude that they significantly counterbalanced the weight properly to accorded to the primary considerations – given Mr Aciek’s significant risk of re-offending.

   HARDSHIP IN THE EVENT OF REMOVAL

2. Direction no. 65 requires regard to the difficulties that a removed former visa holder may have in “establishing themselves and maintaining basic living standards”. That consideration is specifically directed at three criteria – (i) the person’s age and health; (ii) any significant linguistic and cultural barriers they are likely to encounter; and (iii) the potentially available social, medical and economic support. In relation to the question of successfully achieving and maintaining “basic living standards” regard is required to be had to “what is generally available to other citizens of that country”:- see cl 14.5.

3. The representations and submissions made on Mr Aciek’s behalf emphasised that the difficulties he was likely to face went far beyond the maintenance of “basic living standards”. The thrust of the contentions advanced was that the prevailing state of affairs in South Sudan was extreme and deteriorating. If Mr Aciek were to be returned he would be without meaningful family support, unable to support himself, unable to obtain any reliable treatment for his psychological and psychiatric conditions, and exposed to the risk of “imminent harm and … death”. These submissions necessarily assumed that Mr Aciek’s likely removal destination was South Sudan. Although that assumption is not inevitably correct, it is encouraged by the existence of the travel document to which I later refer (see paragraph 70 below) and was the basis on which the parties put their respective arguments.

4. The delegate’s decision reasons noted the UNHCR’s April 2015 view that “the security, rule of law and human rights situation” in South Sudan stood in the way of any “safe and dignified” return to the country. The reasons also noted that the civil conflict in South Sudan had “caused a major public health crisis”. However, the delegate essentially dismissed the significance of the suggested hardships on the basis of the following propositions:

   (a)Complaints and apprehensions about the general security situation in South Sudan were properly to be considered in the context of an application for a Protection Visa, and Mr Aciek would be entitled to make such an application.

   (b)Direction no. 65 encouraged exercise of the revocation discretion without regard to the issues that would fall for consideration in the context of a valid Protection Visa application

   (c)Because of his ethnic Dinka origin and upbringing, and beyond an initial period of adjustment, Mr Aciek was not likely to face any significant linguistic or cultural barriers to his (re-)settlement in South Sudan, notwithstanding that he had not lived there since his infancy.

   (d)The apparent inadequacy in the level of mental health services in South Sudan would present a substantial difficulty to Mr Aciek’s (re-)settlement in South Sudan, but those difficulties were not so significant as to be determinative of the exercise of the revocation discretion.

   The situation in South Sudan

5. In the light of the extreme proposition advanced on Mr Aciek’s behalf, its apparent partial corroboration by the contents of the April 2015 UNHCR report, and its apparent acceptance in the delegate’s reasons, I requested additional information be provided to the Tribunal about the contemporary state of affairs in South Sudan. In response to my request the Minister’s representatives provided both DFAT’s current travel advice relating to South Sudan, and the results of an apparently comprehensive review of relevant “country information”. DFAT’s travel advice, as at 10 November 2017 was unequivocal - “do not travel to South Sudan”. The stated reason for the advice was “instability, ongoing conflict and a deterioration of law and order”.  The “country information” detailed the background to the current situation in South Sudan, and the realities of that situation. I set out the substance of that information in the following paragraphs of these reasons.

6. South Sudan seceded from North Sudan in 2011 following two protracted conflicts that are believed to have led to the deaths of more than 1.5 million people. In the aftermath of that conflict the new South Sudanese government adopted various laws, the effect of which was to entitle South Sudanese nationality to anyone who is either a member of an “indigenous ethnic community” of South Sudan or whose parent, grandparent or great grandparent was born in South Sudan. Those legislative provisions have the formal consequence that anyone who can substantiate their Dinka ethnicity is eligible for South Sudanese nationality. Notwithstanding that formal eligibility various UNHCR reports (in November 2015 and May 2018) evidence the reality of a distinction between theoretical entitlement to nationality and practical access to nationality documentation. That distinction involved (i) inconsistency in the interpretation of the relevant legislation, (ii) imposition of additional requirements not provided for in the legislation, (iii) practical difficulties in obtaining evidence to satisfy the legislative requirements and (iv) application fees that were unaffordable because of widespread poverty.

7. In the present case there was evidence that Mr Aciek had obtained an emergency travel document from the Ministry of Interior of the Republic of South Sudan. This document recorded Mr Aciek’s nationality as South Sudanese, but it noted that he had no passport, and it was stated to be a permit issued to facilitate the journey elsewhere described in the form. That journey appeared to relate to a stay for a period of 3 months. Given the difficulties alluded to in the UNHCR reports, this document is not a convincing basis for positive satisfaction that recognition of Mr Aciek’s nationality in South Sudan would be an uncomplicated exercise. But neither is there an adequate basis for a contrary satisfaction. The actual significance of the document was not the subject of consideration at the hearing. Its existence, Mr Aciek’s undisputed Dinka ethnicity, his undoubted origin in South Sudan, and the reference to “going home” in the travel document, all point to the likelihood that recognition of his nationality in South Sudan would be not be a controversial matter.

8. The post independence state of affairs in South Sudan was touched upon in a 14 April 2015 UNHCR report. This report outlined the extent of continuing conflict and intercommunal violence. That included reports of targeted violence, even within protection of civilian sites, the killing of humanitarian workers and widespread systematic human rights violations violence. It described the effect on the civilian population as catastrophic, with internal displacement of 1.5m people and 0.5m others who had fled to the neighbouring countries of Ethiopia, Kenya, Sudan and Uganda. It also noted that all those countries “recognise civilians who fled South Sudan as refugees on a prima facie basis”. The report concluded with the observations that:

   [8] … the situation in South Sudan has continued to deteriorate since the outbreak of the current civil conflict in December 2013, with the security, rule of law and human rights situation in South Sudan remaining deeply compromised. In such a context, persons fleeing South Sudan are likely to meet the criteria for refugee status under the 1951 Refugee Convention, or would otherwise meet the criteria contained in the refugee definition in Article 1(2) of the 1969 OAU Convention…

   [9] The security, rule of law and human rights situation pertaining today in South Sudan also stands in the way of safe and dignified return to any person originating from South Sudan, whether or not the individual is found to be in need of international protection. Accordingly, UNHCR hereby reaffirms the February 2014 position, recommending States to suspend forcible returns of nationals or habitual residents of South Sudan to the country. The bar on forcible returns serves as a minimum standard and needs to remain in place until such time as the security, rule of law and human rights situation South Sudan has improved sufficiently to permit a safe and dignified return of those determined not to be in need of international protection.

9. Although the departmental response commented there had been no further update to the 14 April 2015 UNHCR report, it also went on to say that the humanitarian and security situation in South Sudan had deteriorated since 2015. As at March 2015 just over 2 million South Sudanese had been displaced. But by the end of 2017, the number had reached 4 million. According to the UN Office for the Coordination of Humanitarian Affairs December 2017 report:-

   The outlook for 2018 is dire. The number of people in need of assistance inside South Sudan stands at 7 million, or well over half the population. This figure does not include the 2 million people who are now refugees in neighbouring countries. Of the 7 million people, approximately 5.7 million will need food and livelihoods support. By late 2017 the number of people on the verge of famine had nearly doubled compared to the previous year.

10. An October 2016 DFAT Report had been prepared for the specific purpose of protection status determinations. It contains matters that decision-makers must take into account an assessment of protection status - in accordance with Ministerial Direction Number 56 of 21 June 2013. The report describes the 2011 creation of the new nation of South Sudan after two civil wars 1955 - 1972 and 1983 – 2005. The report goes on to describe the outbreak of civil conflict in December 2013 between rival Dinka and Nuer ethnic groups, and the resumption of ethnic hostilities in 2016. (That occurred despite an August 2015 “Agreement on the Resolution of the Conflict in the Republic of South Sudan”.) The report states the following in relation to the humanitarian situation South Sudan:-

    2.6 The humanitarian situation South Sudan is dire and has been aggravated by the recent escalation in conflict. As of August 2016, 1.6 million people were internally displaced, including 190,000 people in Protection of Civilian Camps run by the UN Mission in South Sudan, and a further 818,950 South Sudanese people seeking refuge in surrounding countries. The Government accepted the deployment of a 4000 Regional Protection Force in early September 2016, in addition to the roughly 12,000 UN Mission in South Sudan personnel already serving in South Sudan.

11. Other relevant parts of the report include the following:-

    2.12 South Sudan’s formal economy is extremely weak and underdeveloped. Juba is the only enclave in South Sudan that operates with something resembling a formal economy.  

    2.14 Eighty-five percent of the population undertake unpaid work, mainly in agriculture which has been adversely affected by ongoing conflict and drought (an estimated 2.8 million people are now considered severely food insecure). Poverty has noticeably and statistically increased, from 44.7% of the population in 2011 to 57.2% in 2015, contributing to increasing levels of crime.

    2.17 South Sudan’s population has extremely poor access to healthcare. Accurate data prepared by the Government on health indicators is often non-existent or outdated. …

    2.19 Data collected prior to the outbreak of conflict in December 2013 found that 76% of households in South Sudan survive on subsistence activities and informal trade. While the African Development Bank estimated in 2012 that South Sudan had a very high unemployment rate with only 12% of the population being actively employed, this does not reflect the significant reliance on the informal economy. It is therefore difficult to accurately quantify the employment situation in South Sudan. However as at 2016, DFAT assesses that as the security and economic situation deteriorated, employment opportunities (both in the formal and informal sectors have also worsened.

    2.31 While the Government now has almost unfettered control over Juba, the relative stability within Juba is extremely fragile. Criminality is rampant and exacerbated by the severe levels of poverty in Juba (and South Sudan more broadly). Particular ethnic groups continue to face a higher risk in Juba.

    3.7 Overall, DFAT assesses that Dinkas living in conflict affected areas face a high risk of societal discrimination and violence, given the significant ethnic-dimensions of the current conflict as well as their geographic proximity to the conflict. In Juba, Dinka’s face a low risk of being targeted on the basis of their ethnicity because of the Dinka dominated government currently has almost unencumbered control over Juba.

    5.20 Conditions for returnees differ depending on the individual’s ethnic or sub-ethnic linkages and whether the individual has or has been perceived to question the authority of the Government. Given the supremacy of the Dinka ethnic group in Juba, Dinkas would likely be able to return to Juba without facing discrimination or violence. …

12. Another matter on which I asked for information concerned employment prospects in South Sudan. The unequivocal response was that they were bleak. The information included the 18 May 2008 comments of the UN Under-Secretary-General for Humanitarian Affairs, that South Sudan’s economy had collapsed. Those comments followed on from an earlier report from the UN Office for the Coordination of Humanitarian Affairs (in November 2017) which had stated the following:-

    The economic crisis is further worsening access to food across the whole country and especially for the market-dependent urban populations. Food insecurity is also deteriorating in other areas previously unaffected by conflict … through a combination of hyperinflation and intensified communal conflict. The depressed economy will also compound needs and reliance on assistance due to lack of opportunities for employment. Older people, children under age 5 as well as those from single (mainly women) headed households are most vulnerable to food insecurity…

    Livelihoods have been decimated [sic – but it is likely this actually means devastated] by the crisis with limited access to land, reduced harvests, fear of violence preventing cultivation of new fields, loss of livestock, loss of assets, and limited investments in market-based employment opportunities, ever deepening poverty, vulnerability and food insecurity making it increasingly difficult for affected populations to recover.

13. The US State Department April 2018 report on human rights in South Sudan commented on the composition of South Sudan’s Workforce prior to the 2011 independence.

    “According to the 2008 census, the latest such data available, 84 percent of those employed were in nonwage work. Most small businesses operated in the informal economy and widely ignored labour laws and regulations. According to the ILO, less than 12% of workers were in the formal sector…

    The majority of workers in the country were agricultural workers, of whom 70 percent were agropastoralists and 30 percent peasant farmers. Fifty-three percent of agricultural workers engaged in unpaid subsistence family farming.

14. Another question I asked the Department to address was the physical and mental health treatment facilities, and social welfare support systems, that were available in South Sudan.  The answer was simply stated as “extremely limited or unavailable”. This answer was expanded upon with quotations from sources as follows

    23 March 2018 a report from a German private foundation

    South Sudan does not have a formalised welfare system of any meaningfulness… With more than 80% of its population living in rural areas, a lot of people in South Sudan depend on land for their livelihoods and most social safety nets reflect this dependency on land. The situation in urban centres is, however, challenging. The lack of or presence of limited safety nets makes many civilians vulnerable to shocks such as illness, droughts, floods and insecurity.

    The social structure, which is based on various traditional practices in South Sudan is a fundamental tool for the provision of safety nets but has its downsides. In most urban centres, the working class often shoulder the burden to assist their kin through the provision of medical assistance.

    November 2017 UN Office for the Coordination of Humanitarian Affairs

    Disease outbreaks have lasted longer than ever and reached previously unaffected areas, weakening already vulnerable people’s ability to cope with multiple shocks. In 2017, South Sudan has seen the longest running cholera outbreak in its history, which began in June 2016 and is expected to continue into 2018. Destruction of healthcare facilities, attacks on health workers, and shortages of drugs and skilled professionals mean access to health care is increasingly sparse. Preventable diseases like measles spread unchecked, and cases of kala-azar [a chronic and potentially fatal parasitic disease] and meningitis are on the rise. With only 22% of health facilities fully operational, the absence of services means that cases of emergency obstetric care, tuberculosis, HIV/AIDS and mental health issues go largely untreated, causing increased mortality and morbidity…

    Destruction and looting of healthcare facilities, attacks against health workers, and shortages of skilled health professionals mean access to health care is increasingly sparse in a country where already some 80% of healthcare services are managed by NGOs, with continuity of services reliant upon funding. Between May and October 2017, three attacks against health facilities in Central Equatoria, Lakes and Upper Nile were reported, and another three incidents required health worker evacuations across several locations. At least one in 10 health facilities have been affected, up to 73% of those in the Equatorias are reported to be non-functional…

    In urban areas, people struggle to access safe water due to ever rising prices… Some 90% of the population do not have access to improved sanitation. Half of the population does not have access to improved water sources.

    30 April 2018 UNHCR report on mental health among displaced South Sudanese

    Mental health and psychosocial support services are extremely limited in South Sudan… In the Malakal (Protection of Civilians Site) with a population of approximately 24,400 internally displaced people a significant increase in suicide and attempted suicide occurred in the last half of 2017… Psychological distress as result of exposure to traumatic experiences was compounded by a sense of hopelessness, limited livelihood opportunities, domestic violence, and congested and poor living conditions contributing to suicidal behaviour.

15. The US State Department’s 2018 report contained these comments relevant to mental health and access to humanitarian assistance

    There were no mental health hospitals or institutions, and persons with mental disabilities were often held in prisons. Limited mental health services were available at Juba Teaching Hospital.

16. A further question I asked the Minister’s representative to address was whether or not it was practical for a person of Dinka ethnicity to relocate to Juba, South Sudan from Australia. The answer to that question was depressingly bleak and to the following effect:-

    Amid civil war and famine, the humanitarian and security situation in South Sudan is miserable and worsened throughout 2017. Returnees have extremely few opportunities for employment and face difficulty accessing even basic services, most of which are provided by NGOs. UN experts do not foresee improvement of the situation in the near future.

1. More specifically the response continued that a South Sudanese national relocating to anywhere in South Sudan, including Juba, would have poor employment prospects and minimal access to physical and mental health services. That answer cited a number of supporting sources including the DFAT report of October 2016. The citation was in the following terms:-

   Overall, DFAT recognises that Dinkas living in conflict affected areas face a high risk of societal discrimination and violence, given the significant ethnic dimensions of the current conflict as well as their geographic proximity to the conflict. In Juba, Dinkas face a low risk of being targeted on the basis of their ethnicity because the Dinka dominated government currently has almost unencumbered control over Juba

2. In relation to the prospect of peace in South Sudan, the UN Under-Secretary General Humanitarian Affairs said in May 2018

   “The peace process so far has produced nothing. The cessation of hostilities is a fiction.”

3. That assessment of the unproductivity of the peace process as at May 2018 was revisited in the Departmental response to my enquiry. That response took into account the announcement, in late June 2018, of a new peace agreement between the principal South Sudanese belligerents. The departmental response referred to a 27 June 2018 article in Al Jazeera which detailed aspects of the agreement. They included the opening of corridors for humanitarian aid, the release of prisoners of war and political detainees, as well as the formation of a transitional unity government to be formed within four months. The proposal contemplates that the unity government would operate for the three years.

4. The departmental response noted however that previous peace agreements had quickly been violated. In that context the response cited the fate of a similar agreement announced in December 2017. The departmental response went on to address a New York Times article that contained the views of two expert commentators about the prospects of success of the recently announced peace agreement. The cited extract was in the following terms

   Humanitarian workers in South Sudan are sceptical that the agreement will be meaningful. Elysia Buchanan, who advises the aid group Oxfam on issues relating to South Sudan, said Oxfam had recently heard accounts from victims of abuse at the hands of the warring parties…

   Brian Abdeba, deputy director of policy for the Enough Project a Washington-based watchdog group, said that while a peace deal could be a positive first step, there was much work to be done

   “One of the things that we have to really gird against is the danger of an agreement that becomes some elite pact that fails to address the structural problems that are at the root of this conflict” Mr Abdeba said, adding that civic society organisations should be involved in the discussion.

   The war has fragmented the nation into several groups. Framing it as only a dispute between Mr Kiir (the President) and Mr Machar (the former Vice President) would “perpetuate the same issues that led to the war in the first place” Mr Abdeba said.

5. Those comments lead to the conclusion that the recently announced peace agreement offers some prospect of situational improvement in South Sudan, but on a time scale, and to an extent, that is presently unpredictable.

   Conclusion on hardship

6. The reference in Direction no. 65 to assessing a removed person’s potential difficulties directs attention to the totality of the circumstances they will face. That attention must have regard to “what is generally available” in the person’s home country (assuming that is the contemplated removal destination). But that obligation implicitly assumes the concept of “basic living standards” has a meaningful context in the returnee’s “home country”. It provides no warrant for failing to enquire whether the assumption is valid in the particular case, and it does not require disregard of the practical reality of the situation in the “home country”. Where that situation is such that any returnee will face real difficulty in obtaining secure shelter, reliable food and access to health care, no reasonable interpretation of clause 14.5(1) of Direction no. 65 requires disregard of that reality. The likelihood that substantially the same difficulties are already faced by a substantial part of the resident population provides no basis for interpreting clause 14.5(1) as confining attention to the merely incremental difficulties that a returnee would be likely to face because of their own personal circumstances. Moreover, even if clause 14.5(1) were to be so interpreted, it could not operate (having regard to the mandatory obligation in clause 14.1(1) to take into account all relevant considerations) to preclude consideration of the underlying practical realities of the “home country” situation. That view is consistent with the breadth of the “another reason” discretion in MigAct58 s 501(CA):- see Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 at [53]-[56]; BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456 at [49], [66], [70]-[73].

7. The detailed information about the current state of affairs in South Sudan, indicates the dire situation in that country. That is the only description that can meaningfully be used where 4m people have been displaced, more than half the population is in need of humanitarian assistance, where the UNHCR advises against forced return of nationals and where DFAT warns against travelling there. That overall description of the dire situation in the country generally is partly ameliorated in relation to the city of Juba. The country information suggests that, within the city there is a comparatively greater measure of government control, a correspondingly low risk of targeted violence against ethnic Dinkas, and “something resembling a formal economy”. But it is also a place where “criminality is rampant”. Furthermore, the ultimate significance of the comparison between the situation in Juba and in other parts of South Sudan is confounded by the facts that (i) Mr Aciek has never lived in Juba, and (ii) there is no evidence that he will have any meaningful practical assistance in establishing himself there.

8. Against this background, the delegate’s dismissal of the hardship considerations as involving no more than an “a period of adjustment” did not pay proper regard to the realities of the situation likely to confront Mr Aciek in the event of his return to South Sudan. As I pointed out earlier (see paragraph 8 above) paying proper regard to relevant considerations requires real and genuine intellectual engagement with the relevant information. That information tends to demonstrate that, irrespective of his psychological conditions, Mr Aciek would face real difficulty in obtaining the basic necessities of day to day living – wherever he sought to establish himself in South Sudan. His difficulties would only be compounded by his psychological conditions, and the difficulties of obtaining treatment for them. In reality the hardship Mr Aciek would face in the event of his return to South Sudan is very great and, whilst that remains the contemplated place of his removal, it is a consideration that points in favour of restoring his visa status.

   OBLIGATIONS IN RELATION TO NON-REFOULEMENT

9. Prompted by the background of the nature of Mr Aciek’s Global Special Humanitarian visa, and the observation contained in the UNHCR’s 14 April 2015 report (see paragraph 71 above) the submissions advanced on Mr Aciek’s behalf urged the Tribunal to address his potential entitlement to rely on Australia’s non-refoulement obligations. This was urged, despite the discouragement contained in Direction no. 65. That discouragement is evident in clause 14.1, and is reflected in the following statements:-

   14.1 International non-refoulement obligations

   (1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.

   …

   (4) Where a non-citizen makes claims which may give rise to international non-refoulement 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.

10. Direction no. 65 goes on to recognise that the discouragement it contains would not be appropriate where the former visa holder was precluded from making a valid Protection visa application (eg., because they had previously been refused such a visa:- see paragraph 9 above). Where that is the case, clause 14.1(6) applies. It contains the following instruction and information.

    (6). In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.

11. The “given” statement in the last sentence of clause 14.1(6) reflects a Government practice that has been consistently asserted:- see NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 at [89]-[95] & [136]; Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [31]. As a bald declaration it appears incongruous in the light of the terms of MigAct58 s 197C. That provision, (which commenced six days earlier than Direction no. 65) declares the irrelevance of non-refoulement obligations to the removal obligation set out in MigAct58 s 198. The significance of the apparent conflict between the declaration and the statutory provision has been remarked upon in several matters:- see DMH16 v Minister for Immigration and Border Protection [2017] FCA 448 (DMH16) at [12] and [27]; KQHR and Minister for Immigration and Border Protection (Migration) [2018] AATA 684 at [85]; FTYC v Minister for Immigration and Border Protection [2018] AATA 20 at [28]-[43].

12. Whatever the precise legal and practical effect of MigAct58 s 197C (and its relevance to Mr Aciek’s position having regard to MigAct58 s 198(5A)), the “unnecessary to determine” view expressed in clause 14.1(4) of Direction no. 65 has been the approach consistently taken in both Ministerial and delegate decisions about visa cancellation. In BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456 the Full Court of the Federal Court of Australia dealt with a Ministerial decision that had taken the “unnecessary to determine” approach. The Full Court held that although non-refoulement claims were not mandatorily relevant considerations in the exercise of the revocation discretion, such a decision was invalid (i) where it assumed that non-refoulement claims would necessarily be assessed in determining a Protection visa application and, (ii) where it failed to engage with the substance of revocation representations, irrespective of whether or not they involved Convention related harm. A number of considerations informed the Full Court’s decision. They were (i) that the MigAct 58 s 501CA(4) discretionary assessment was not restricted by the eligibility criteria for a Protection visa (at [49]-[50]), (ii) a Protection visa could be refused on bases that did not involve consideration of the person’s apprehensions of persecution or harm (at [50]-[53]), and (iii) the likelihood that an adverse character decision in the exercise of the MigAct58 s 501(CA) discretion would preclude the favourable outcome of any Protection visa application (at [52] & [68]). In a number of later Federal Court decisions the same approach was taken, and the BRC16 decision itself affirmed, despite evidence of Departmental procedural advice instructions that required assessment of Convention claims prior to any regard to character considerations:- see ALN17 v Minister for Immigration and Border Protection [2017] FCA 726; (a decision under s 501CA(4)); Steyn v Minister for Immigration and Border Protection [2017] FCA 1131 (a cancellation under s 501(2) of the Act); Ibrahim v Minister for Immigration and Border Protection [2017] FCA 1218 (a decision relating to MigAct58 s 501BA); Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68 (MigAct58 s 501CA(4) visa cancellation).

13. After those decisions, on 5 September 2017 the Minister issued another direction under MigAct58 s 499 – Direction no. 75 – Refusal of Protection visa relying on section 36(1C) and section 36(2C)(b) (“Direction no.75”). That Direction effectively adopts the previous Departmental procedural instructions and authoritatively requires delegates determining Protection visa applications to assess the protection claims with reference to the Convention related eligibility criteria in MigAct58 ss 36(2)(a) & 36(2)(aa), before addressing the potential application of any disqualifying ineligibility criteria (ie.,MigAct58 s 36(1C) and 36(2C)(b)) or residual character concerns. The effect of the instruction and practice contained in Direction no. 75 was considered in Ali v Minister for Immigration and Border Protection [2018] FCA 650. In that case Flick J noted that the Minister’s statement of reasons, which referred specifically to Direction no. 75, was unquestionably an attempt to address the concerns expressed in BRC16. Flick J held that the Minister’s express acknowledgement of the contents of Direction no. 75 precluded a factual finding that the decision contained any misunderstanding of the Protection visa decision making provisions and practice. Flick J acknowledged both (i) the potential futility of a Protection visa application process where character concerns were ultimately likely to be determinative, and (ii) in that event, the difficult reconciliation of the MigAct58 s 197C with the asserted Government practice:- at [31]-[33]. But His Honour did not regard either of those matters as requiring consideration of non-refoulement claims in the exercise of the revocation decision. His Honour emphasised that the revocation decision criterion was whether there was “another reason” to revoke the cancellation. That criterion did not specifically require assessment of the Protection visa claim, and the Minister’s “unnecessary to address” reasoning sufficiently and lawfully indicated the basis for dissatisfaction that the “another reason” criterion had been met:- at [28]-[29].

14. Notwithstanding the clearly stated preference for decisions of the present kind to refrain from consideration of non-refoulement claims, it was common ground that they were permissibly relevant considerations. Mr Aciek’s submissions urged them to be taken into account. Underlying that urging was reliance on the nature of the Global Humanitarian visa Mr Aciek obtained in February 2004.

15. As is typical of most visa categories, the Global Humanitarian visa had specific eligibility criteria that applied at two different points of time – the date of application and the date of the visa grant decision. The principal eligibility criteria at the visa application date can be sufficiently summarised as being:-  (i) the applicant's presence outside both Australia and their home country, (ii) having been subject to substantial discrimination, constituting gross violation of their human rights, in their home country or, (iii) having an Australian resident proposer who had been granted a similar visa. The principal eligibility criteria at the time of the visa decision were (i) Ministerial satisfaction that there were "compelling reasons" for giving special consideration to the grant of a permanent visa having regard to, amongst other things, the degree of discrimination to which the applicant was (or would be) subject to in their home country and (ii) the applicant’s ability to satisfy various "public interest criteria" in Schedule 4 of the Migration Regulations. Relevantly the applicable criteria of most apparent present relevance were 4001 (relating to the alternative of either passing, or not being required to pass, the "character test"), 4009 (relating to an intention to reside permanently in Australia) and 4010 (relating to an applicant’s apparent ability to establish themselves in Australia). The presently significant aspects of these various eligibility criteria are that the visa grant was (i) only consistent with acceptance of “compelling” evidence of the likelihood of suffering “substantial discrimination” in Sudan and, (ii) not necessarily dependent on affirmative satisfaction that the applicant met the usual “character test” requirement contemplated by paragraphs (a) & (b) of public interest criterion 4001.

    The nature of the non-refoulement obligations

16. As the last sentence of clause 14.1(1) asserts, the essence of Australia’s “international non-refoulement obligations” is reflected in the principal statutory criteria for the grant of protection visas. Those statutory criteria are the authoritative content of the non-refoulement obligations for the purpose of Australia’s domestic law:- MigAct58 s4(2) ; NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 at [82]-[87].

17. Relevant to the circumstances of the present case (where Mr Aciek is in Australia and there is no evidence of any other family member having made a protection visa application), those criteria can be summarised as follows:-

    (a)the visa applicant must be either:

    (i)a “refugee”:- see MigAct58 s 36(2)(a) (ie., a person who has a “well-founded fear of persecution” for reasons of race, religion, nationality, political opinion, or membership of a social group:- see MigAct58 ss5H, 5J(1)(a); there is a “real chance” of persecution, it relates to all areas of the country to which the person would be returned:- see MigAct58 s 5J(1)(b(&(c); the apprehended persecution is likely to involve serious harm and is systematic:- see MigAct58 ss5H, 5J(4); AND no effective protection measures are likely to be available to the person:- see MigAct58 s 5J(2)), or

    (ii)likely to be at real risk of “significant harm” if removed from Australia,:- see MigAct58 36(2)(aa) (ie., where (i) the risk is personal, rather than one faced by the general population, (ii) it would not be reasonable for the person to relocate to an area without such a risk, and (iii) the person could not obtain adequate protection from an authority of the country:- see MigAct58 s 36(2B);

    (b)the concept of “serious harm” (for the purposes of MigAct58 s 36(2)(a) and 5J(4)(b)) includes significant physical ill-treatment or harassment, denial of access to services or livelihood, and economic hardship, where those matters threaten the person’s subsistence:- see MigAct58 s 5J(5);

    (c)the concept of “effective protection measures” (for the purposes of MigAct58 s 36(2)(a) and 5J(2)) applies to accessible, durable protection that is provided either by a State (that has an appropriate criminal law, a reasonably effective police force and an impartial judicial system) or by some other entity that controls a substantial part of the relevant State:-  see MigAct58 s 5LA;

    (d)the concept of “significant harm” (for the purposes of MigAct58 s 36(2)(aa)) includes death, torture, and cruel, inhuman or degrading treatment or punishment:- see MigAct58 s 36(2A).

1. There are two other, potentially relevant, eligibility criteria. First the visa applicant must not have failed to take all possible steps to avail themselves of entry and residence rights in other countries, where they would not be subject to a well-founded fear of (typically) racial, religious or political persecution:- MigAct58 s 36(3) to (5A). Second, the application itself must claim to satisfy one of the relevant criteria summarised in subparagraph (a) above, and make specific claims as to why that criterion is satisfied: see MigAct58 s 40; MigReg1994 reg 2.04 & Schedule 2 cl 866.211.

2. An applicant who is otherwise able to satisfy the criteria in MigAct58 ss 36(2)(a) & 36(2)(aa) will nevertheless be ineligible for a Protection visa if they have been convicted of a “particularly serious crime” and the Minister reasonably considers them to be a “danger to the Australian community”:- see MigAct58 ss 36(1C) & (2C)(b)(ii). That qualification reflects the substance of Article 33(2) of the 1951 Convention.

3. Even where a person otherwise establishes their ability to satisfy the various criteria in MigAct58 s 36, they must also satisfy the eligibility criteria provided for in the Migration Regulations. The application may be refused if the person fails to satisfy an applicable “public interest criterion”:- see eg., Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; (2012) 251 CLR 1. Finally, there is a residual statutory discretion to refuse a Protection visa application if the person has a “substantial criminal record”, and cannot pass the statutory “character” test:- MigAct58 ss 501(1)&(6).

4. The preceding outline of the principal statutory provisions readily reveal the potential complexity of the Protection visa application criteria. Corresponding with their complexity is the need for careful attention to the formulation of the protection claims, and the nature and quality of the evidence necessary to satisfy the substance of the protection claims. It is important to note that there is no ongoing eligibility criterion that applies after the visa grant. Consequently, even if it is correct to assume that the “substantial discrimination” criterion relevant to Mr Aciek’s 2004 visa grant relevantly corresponds with the 1951 Convention grounds, the fact of the February 2004 grant cannot be taken to be probative of his personal contemporary eligibility under the MigAct58 s 36(2) criteria:- Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68 at [128].

5. The February 2018 representations that had been made on Mr Aciek’s behalf in response to the cancellation decision tended to conflate the concepts of hardship and persecution (using the latter term to describe both of the MigAct58 s 36(2) criteria). They referred to the contents of the April 2015 UNHCR report (see paragraph 71 above) and to reports of civilians being targeted on the basis of ethnicity and nationality. But the overall emphasis of the representations was on the characterisation of South Sudan as a “highly dangerous and unstable country”, without specific attention to how that characterisation could be relied on to satisfy the relevant protection criteria. In an attempt to clarify the position, prior to the hearing I directed that the contentions to be advanced in support of Mr Aciek’s position should include a statement of any specific non-refoulement claims that were intended to be advanced. However the statement that was provided did not explicitly pay regard to the MigAct58 s36(2) criteria and principally involved a general characterisation of South Sudan as “one of the most dangerous places on earth”.

6. In drawing attention to that lack of specificity I do not intend to criticise the way this difficult matter was conducted on Mr Aciek’s behalf. Indeed, there is an arguable justification for it, given that the MigAct59 s 501CA(4) discretion is neither restricted to consideration of the principal protection visa criteria, nor necessarily fettered by apprehension that the visa holder may be a danger to the community:- see BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456 at [49]–[50] & [60], [66], [70]-[73] & [96]. However, the lack of specificity, particularly in the absence of any written or oral evidence from Mr Aciek himself, is significant.

7. In NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 Allsop CJ and Katzmann J said this about the importance of particularity and personal information in the assessment of non-refoulement claims

   [22] The nature of the assessment of status under Art 1A(2) is generally one that requires close attention to the personal circumstances and position of the claimant. The Refugees Convention is directed to the human condition of individuals, and their posited flight from persecution. Rarely (save for clear cases of systematic persecution against groups) can a judgment be made about whether an individual is entitled to the status of a refugee by reference to general considerations divorced from the individual’s personal circumstances.

8. Consequently, in the particular circumstances of this matter – where there is very little evidentiary basis to permit a fully informed assessment, it is undesirable to embark on any consideration of Mr Aciek’s potential protection entitlement under Australia’s non-refoulement obligations. In order to illustrate that point, I note several matters that emerged in the course of the evidence. First, Mr Aciek was born in Lualajokbil in Jonglei State. Second, as at April 2015 the UN Office for Co-ordination of Humanitarian Affairs reported that there were some 673,000 displaced persons in the state. Third, Lualajokbil is apparently near, or part of, Bor – the capital city of Jonglei. The April 2015 UNHCR report specifically described ethnically targetted attacks in Bor, both inside and outside of protection of civilian sites. Fourth, the October 2016 DFAT report refers to ongoing conflict in Jonglei state, and also the two states on its southern border – Central and Eastern Equatoria. Fifth, there was some evidence that some of Mr Aciek’s close relatives are still in a refugee camp near Bor. Sixth, MigAct58 ss 500(6H) & 500(6J) prevented Mr Aciek’s brother from expanding upon evidence he sought to give orally about recent events, and the current situation, in Bor. It is impossible to tell from this limited information whether or not those various matters bear relevantly upon Mr Aciek’s personal circumstances. But the possibility that they may ought not be discounted.

9. The undesirability of embarking on any assessment of Mr Aciek’s potential non-refoulement claims is not removed by apprehension that any application he might make for a Protection visa would be an exercise in futility, given his “substantial criminal record” – and the potential application of the ineligibility criteria in MigAct58 s 36(1C) & 36(2C). Neither the mere fact that Mr Aciek has a substantial criminal record, nor the circumstance that some of his offences fall within the category of “particularly serious crime”, necessarily predicts that, at the time any such assessment falls to be made, he will be regarded as a “danger to the community”.

   DECISION

10. Mr Aciek’s circumstances hardly permit any outcome to the present proceedings that is desirable. The primary considerations to which Direction no. 65 require regard point towards maintaining the visa cancellation. Given the view I have expressed about the lack of weight that can properly be given (in the light of the limited evidence) to the best interests of the various minor children, the primary considerations of protection and expectation are very substantially in favour of visa cancellation. That view is required by the assessment of Mr Aciek as having a high risk of re-offending. That weight of the primary considerations is not significantly counterbalanced by regard to Mr Aciek’s family and community ties or his long period of Australian residence. The most significant “other” consideration that weighs, and weighs substantially, in favour of visa retention, is the undoubted hardship he will face, if returned to South Sudan. Necessarily that hardship will involve very significant risk to his mental health, and perhaps to his ultimate survival. As I have said, neither outcome – retention or loss of his former visa status – is objectively “desirable”, but the choice between those two outcomes must be made. Having regard to the weight that the evidence requires to be given to the protection and expectation considerations, and the objectives of MigAct58, the preferable outcome of the present application is to affirm the decision under review.

I certify that the preceding 106 (one hundred and six) paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor SC, Senior Member

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

Associate

Dated: 19 July 2018

Date(s) of hearing:	5 and 6 July 2018
Solicitors for the Applicant:	Mr R Turner - Turner Coulson Immigration Lawyers
Solicitors for the Respondent:	Ms M Donald - Sparke Helmore Lawyers

Schedule - Aciek v MHA

Reasons paragraph 2

Age

Assault

Damage

Traffic / other

Offences

Penalty (custodial)

Penalty (actual - custody)

Bond or Parole conditions

Date

Type

max

actual

Custodial Period

Bond

Fine

Event

(Court)

(months)

(months)

Start

Non-Parole

End

(months)

$

23

1

17-Jun-08

13-Oct-08

Drive with excess blood alcohol

3

500

licence disqualification 3 mths 4 days

23

2

17-Jun-08

13-Oct-08

Contravene provisional licence cond'n - pca

na

25

3

2-Oct-10

08-Nov-10

Fail to comply - direction to leave vehicle

na

1500

licence disqualification 3 yrs

25

4

2-Oct-10

08-Nov-10

Drive under the influence

6

26

1

30-Oct-11

5-Jun-12

Carry offensive weapon in/near licensed premises

24

5

12

$1000 compensation - suspended sentence - revoked 7 May 2014

26

2

30-Oct-11

Assault - agravated (offensive weapon)

48

27

3

19-May-12

13-Jun-12

Disorderly behaviour

36

100

27

5

26-Oct-12

7-May-14

Assault - aggravated (offensive weapon) x 2

48

single sentence - with "Intentional harm - aggravated" offence

27

1

26-Oct-12

7-May-14

Damage property -  building or vehicle

120

27

2

26-Oct-12

7-May-14

Damage property -  building or vehicle

120

27

6

26-Oct-12

7-May-14

Assault

24

27

7

8-Nov-12

7-May-14

Intentional harm - aggravated

156

59

3-Jun-14

2-Mar-16

7-Mar-17

sentence expiry 2 May 2019 -7 March 2017 release  to immigration detention

4

8-Nov-12

7-May-14

Damage property  x 2

120

27

5

14-Dec-12

7-May-14

Disorderly behaviour

36

single sentence - with "Intentional harm - aggravated" offence

27

8

14-Dec-12

7-May-14

Assault  police - aggravated (no weapon)

36

27

6

19-Dec-12

7-May-14

Breach of bond (5 June 2012 conviction)

24

5

3-Jan-14

-

3-Jun-14

27

On remand

17-Dec-12

19-Apr-13

28

On remand

2-Jul-13

8-Jul-13

28

7

2-Jul-13

08-Jul-13

Fail to comply with bail

24

no penalty

8

15-Nov-13

7-May-14

Fail to comply with bail

24

single sentence - with "Intentional harm - aggravated" offence

On remand

3-Jan-14

27-Mar-14

28

9

3-Jan-14

7-May-14

Fail to comply with bail

24

single sentence - with "Intentional harm - aggravated" offence

Immigration detention

7-Mar-17

released on parole to facilitate transfer to immigration detention

Totals

8

4

9

Total

21