Adut and Minister for Home Affairs (Migration)
[2018] AATA 4089
•31 October 2018
Adut and Minister for Home Affairs (Migration) [2018] AATA 4089 (31 October 2018)
Division:GENERAL DIVISION
File Number(s): 2018/4512
Re:Akok Garang Adut
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:31 October 2018
Place:Melbourne
The Tribunal affirms the decision under review.
[sgd]........................................................................
Senior Member A. Nikolic AM CSC
MIGRATION – Mandatory visa cancellation – Class XB Subclass 202 Global Special Humanitarian visa – revocation of visa cancellation – failure to pass good character test – Ministerial Direction No. 65 applied – primary considerations considered – protection of the Australian community – best interests of minor children – expectations of the Australian community – other considerations – whether Applicant owed non-refoulement obligations – strength, nature and duration of ties – impact on victims – extent of impediments if removed – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth)Migration Regulations 1994 (Cth)
CASES
Minister for Immigration and Border Protection v BCR 16 [2017] HCA Trans 240
BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104
Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96
DOB18 v Minister for Home Affairs [2018] FCA 1523
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Greene v Assistant Minister for Home Affairs [2018] FCA 919
Turay v Assistant Minister for Home Affairs [2018] FCA 1487
FKP18 v Minister for Immigration and Border Protection [2017] FCA 1555
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1
Schuster-McFadyen v Minister for Immigration and Citizenship [2011] FCA 1303
Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
HGBY and Minister for Immigration and Border Protection [2017] AATA 2824
PXYJ and Minister for Immigration and Border Protection [2017] AATA 1961SECONDARY 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)
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, UNTS 137 (entered into force 22 April 1954)
Protocol Relating to the Status of Refugees, done at New York on 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)
The Nationality Act 2011 (South Sudan), 7 July 2011, Article 8(1)(b)Department of Foreign Affairs and Trade, South Sudan (10 November 2017) Smart Traveller < of Foreign Affairs and Trade, Sudan (16 January 2018) Smart Traveller < FOR DECISION
Senior Member A. Nikolic AM CSC
31 October 2018
INTRODUCTION
The Applicant, Mr Akok Garang Adut (Mr Adut) has asked the Tribunal to review the decision of a delegate of the Respondent not to revoke the cancellation of his Class XB Subclass 202 (Global Special Humanitarian) visa (the visa).[1] Mr Adut’s visa was cancelled on 28 November 2016 under section 501(3A) of the Migration Act 1958 (Cth) (the Act).[2] The delegate was satisfied that Mr Adut did not pass the character test because he had a substantial criminal record and was then serving a full-time sentence of imprisonment.
[1] A subclass 200 visa is a refugee visa, the criteria for which is provided for at Clause 200.21 in Schedule 2 to the Migration Regulations 1994 (Cth).
[2] Exhibit R1, 99-104.
Pursuant to section 501(CA)(3)(b) of the Act, Mr Adut was invited to apply to have the cancellation decision revoked. On 8 August 2018, after considering Mr Adut’s representations, the Minister decided not to exercise the power under section 501CA(4) of the Act to revoke the visa cancellation.
The application was heard in Melbourne on 23 October 2018. Mr Adut was represented during the pre-hearing stage by Victoria Legal Aid, but was represented at the hearing by Mr Joel McComber, a lawyer with Samuta McComber Lawyers. The Minister for Home Affairs (Minister) was represented by Mr William Staples, a lawyer with Clayton Utz.
For the reasons that follow, the Tribunal affirms the decision under review.
BACKGROUND
Mr Adut was born in what is now South Sudan. After living in a number of internally-displaced persons camps and then Kakuma Refugee Camp in Kenya, he migrated to Australia on 15 December 2004. He was aged 12 on arrival, as a dependent of his eldest sister, who had five children of her own at that time. Mr Adut is currently 26 years of age.
Mr Adut settled in Queensland with his eldest sister and her children. He attended primary school and high school in Queensland, but ceased secondary education while undertaking year 9.
Mr Adut’s mother and his other sister migrated from Sudan to Australia about five years after he did. They moved to Victoria and Mr Adut joined them, but he returned intermittently to Queensland and has resided briefly in other states. Prior to his most recent imprisonment in late 2016, Mr Adut was living with his younger sister and her four children in Melbourne.
Mr Adut has two biological children of his own who were born in 2011 and 2015.[3] In his Personal Circumstances Form dated 7 December 2016, he states that his two children live with their biological mother, from whom he is separated. He further states in the form: ‘I think there may be an intervention order in place.’[4] Mr Adut lists numerous other family members, including aunts, uncles, cousins, nieces and nephews living in Australia. He also claims to have relatives living in the United States.[5]
[3] Ibid 117.
[4] Ibid 118.
[5] Ibid 119.
Mr Adut’s Criminal Record
Mr Adut’s National Police Certificate discloses an extensive criminal record encompassing 21 court appearances in four states since 2009.[6] Initial charges were mainly public nuisance and property offences, which the courts dealt with by way of reprimand, fines and without convictions being recorded. His convictions between 2010 and 2016, however, are for increasingly serious offences. Many have a violent dimension and have been perpetrated against innocent citizens, police, emergency workers and a prison officer. Mr Adut has also been convicted of disorderly behaviour, acting in a disruptive manner in a police jail, and numerous property, public nuisance and drunkenness offences. He has breached bail conditions, probation orders, and failed to appear in accordance with undertakings made to the court. He has been imprisoned on several occasions.
[6] Ibid 40-48.
Mr Adut’s most recent sentence of imprisonment was on 22 December 2016 for an effective term of one year and three months. This followed his conviction for intentionally cause injury, recklessly cause injury and unlawful assault.[7] After being released from prison on 6 April 2018, Mr Adut was taken into immigration detention where he remains.[8]
[7] Ibid 40.
[8] Statement of Arok Garang Adut dated 16 September 2018, 54.
STATUTORY FRAMEWORK
Section 501(3A)(a)(i) of the Act compels the Minister to cancel a visa in certain circumstances:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test is defined at sections 501(6) - 501(12) of the Act and refers to a range of character matters that the Minister or their delegate may have regard to in deciding whether to refuse or cancel a visa (or revoke a mandatory cancellation of a visa). Section 501(6)(a) of the Act provides that:
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
Section 501(7) of the Act sets out six sets of circumstances in which a person is taken to have a substantial criminal record for the purposes of the character test, including if the person has been sentenced to a term of imprisonment of 12 months or more (section 501(7)(c)).
Section 501CA of the Act applies if the Minister makes a decision (the original decision) under section 501(3A) to cancel a visa. Sections 501CA(3)-(4) require that:
(3) As soon as practicable after making the original decision, the Minister must:
(a) give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Under section 501E(1) of the Act, visa cancellation precludes Mr Adut, as a person within the migration zone from applying for, or obtaining, certain other classes of visa. Under section 501E(2), however, the preclusion does not apply to applications for a protection visa or a bridging visa pending a person’s removal. Refusal of a protection visa application, or cancellation of a protection visa, precludes a further protection visa application, subject to the favourable exercise of a Ministerial public interest discretion under sections 48 and 48B(1) and (1B) of the Act. However, a Class XB visa is an offshore humanitarian visa and is not a protection visa.[9] The cancellation of Mr Adut’s visa therefore does not preclude him from making a valid application for a protection visa.
[9] A protection visa is categorised as a Class XA visa.
In conducting my review, I am bound by section 499 of the Act to apply Direction No. 65 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (the Direction).[10] The Direction is a document promulgated in the exercise of power conferred on the Minister by section 499(1) of the Act.
[10] BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104, 104 at [9] per Collier, Flick and Perry JJ. See also: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591, per Katz J.
Paragraph 6.1 of the Direction sets out the following objectives:
6.1 Objectives
(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
(2) Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A non-citizen may have their visa cancelled under subsection 501(2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.
(3) Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
(4) The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
By way of general guidance, paragraph 6.2 of the Direction provides:
6.2 General Guidance
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2) ….
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered…in making a revocation decision are identified in Part C of the Direction.
The principles referred to under General Guidance are reproduced below and constitute a framework within which decision-makers must apply the considerations in Parts A, B, or C of the Direction:
6.3 Principles
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1)(b) of the Direction is relevant for Mr Adut’s application, requiring that a decision-maker ‘must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.’ If Mr Adut does not pass the character test, three primary considerations at paragraph 13(2) of the Direction must be applied to the specific circumstances of his case:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Paragraph 14(1) of the Direction requires that other considerations must also be taken into account where relevant in deciding whether to revoke the mandatory cancellation of a visa. These include but are not limited to:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
Paragraph 8(3) of the Direction states: ‘Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of a visa, or whether or not to revoke a mandatory cancellation of a visa.’ Paragraph 8(4) states: ‘Primary considerations should generally be given greater weight than the other considerations.’ Paragraph 8(5) states: ‘One or more primary considerations may outweigh other primary considerations.’ As held in Schuster-McFadyen v Minister for Immigration and Citizenship, however, the Tribunal can give equal or greater weight to any consideration.[11]
[11] [2011] FCA 1303; 124 ALD 68. As held by Tracey J at [32], it is also open to the Tribunal to conclude ‘that the “other considerations”… carry more weight than…adverse primary considerations.’
ISSUES
The issues for determination are:
(a)whether Mr Adut passes the character test; and
(b)if not, whether the conditional discretion under section 501CA(4) of the Act to revoke the mandatory cancellation of his visa should be exercised, after applying the considerations at Part C of the Direction to the specific circumstances of his case.
DOES MR ADUT PASS THE CHARACTER TEST?
Having regard to the combined effects of sections 501(6)(a) and 501(7)(c) of the Act, I find that Mr Adut does not pass the character test. Given that he has a substantial criminal record and was serving a full-time sentence of imprisonment at the time of the original decision, his visa was liable for mandatory cancellation under section 501(3A) of the Act.
ISSUE TO BE RESOLVED
Pursuant to section 501CA(4)(b)(ii) of the Act, it remains to be determined if there is ‘another reason’ to revoke the mandatory cancellation of Mr Adut’s visa. This requires an evaluative process consistent with the reasoning of North ACJ in Gaspar v Minister for Immigration and Border Protection,[12] which I adopt:
“The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked…”
EVIDENCE BEFORE THE TRIBUNAL
[12] [2016] FCA 1166 at [38].
Sentencing Remarks
In addition to Mr Adut’s National Police Certificate, sentencing remarks from three courts are in evidence from: the Ipswich Magistrates’ Court dated 6 December 2011;[13] the Heidelberg Magistrates’ Court dated 5 October 2016;[14] and the Sunshine Magistrates’ Court dated 22 December 2016,[15]. Extracts from these sentencing remarks state:
[13] Exhibit R1, 62-75.
[14] Ibid 76-87.
[15] Ibid 88-97.
(a)Ipswich Magistrates’ Court: 6 December 2011:
‘BENCH:
All right, Mr Adut, I’m going to proceed to sentence you now.
You’ve pleaded guilty to a significant number of charges, a total of 32 if I include the breach of probation. They comprise a common assault which occurred on the 27th of March and the breach of probation charge. A public nuisance also relates to the 27th of March. A separate public nuisance on the 12th April, an obstruct police on the 12th of April, an assault with intent to steal and an assault occasioning bodily harm on the 6th of May. A failure to leave licensed premises and creating a disturbance in licensed premises on the 30th of July. A failing to appear on bail on the 22nd of August and then a total of 23 charges of breaching bail condition which all are as a result of you failing to report in accordance with your bail conditions…
The most serious of the offences are, of course, the common assault charge from the 27th of March and the assault with intent to steal and assault occasioning bodily harm charge from the 6th of May.
You have in your favour the fact that you’re a young man, you’re 19 years old. You have a child who is now in your care. You’ve told Mr Khan that you’ve stopped drinking. I hope that’s the truth because there is clearly a pattern of intoxication being involved in most of these offences. You were cooperative with police. You made admissions. And although the assault occasioning bodily harm offence resulted in only minor injuries, it is still a serious matter, and I’ll get to that shortly.
All of the offences, with the exception of the offence of common assault, occurred whilst you were on probation, and for many of the offences you committed the offences whilst you were already on bail for earlier offences…
…
The circumstances of the common assault were that on the 27th of March you were in a Hungry Jack’s…the complainant was a security officer who was performing his duties. You approached him and you were smoking. The security officer complained and asked you to stop smoking in the Hungry Jack’s. You then refused to leave the store or stop smoking. You were then with a group of people. According to the facts then, you began to behave in an aggressive and threatening manner towards the complainant. Six associates and yourself then circled around the complainant and stood over him. He was attempting to defuse the situation because he didn’t want to get involved in a fight. You and your group then forced him into a corner of the store. You then came around behind the group and punched him with a closed fist to the right side of the face.
Police arrived at about 4 o’clock and it then appears that shortly after 4 o’clock was when the public nuisance charge…occurred, and that was as a result of you behaving in a…disorderly and aggressive manner…and CCTV footage depicted you punching the complainant to the head.
It seems to me to bear quite a similarity then to the offences that occurred on the 6th of May, the assault occasioning bodily harm and the assault with intent to steal. In this case it was a security guard at the Goodna Railway Station. A group of five males, including yourself, Mr Adut, circled around this security guard. One of your co-offenders asked him if he was a terrorist, then asked him for money. Someone asked him if they could have his jacket. You grabbed at his jacket and asked if you could have his phone. You then slapped him in the face and another in the group slapped and kicked him. When the complainant was able to call triple O on his phone, you then came up to him and punched him in the face leaving a cut, and that’s the bodily harm charge.
The other offences are much less serious. They involve public nuisance and obstruct police offences…
All of the remaining offences then are the failing to appear on bail and the 23 charges of failing to report on your bail.
The offences of violence, Mr Adut, are ones that concern me the most. Clearly, as I said, there’s a pattern in you being involved with a group of other people and harassing security guards to the extent that assaults were committed on two of them on two occasions…
…
… In all of the circumstances in relation to the offences of violence that you’ve pleaded guilty to, those are the most significant offences and those are the ones that, as I’ve said, concern me the most.
…
… I know that these breaches of bail and your breach of probation, because you never reported whilst on probation, doesn’t bode well for your ability to comply with parole, but it is your choice, Mr Adut.
…
I know that you have had difficulties in complying with your bail reporting and you never reported on probation, but you need to understand,, Mr Adut, that this is not like a breach of probation, it is not like a breach of bail where you come back to the court…You do not come back before the Court if you fail to report on your parole…You do not get another chance to tell the Court that you will do the right thing… If you do not, there will be a warrant issued for your arrest. You will be taken back into custody on a parole suspension…
…
So don’t fail me; all right. Don’t fail this order…
(b)Heidelberg Magistrates’ Court: 5 October 2016:
‘HER HONOUR:
This is the situation. Mr Adut has pleaded guilty in relation to serious offending which occurred during the currency of the community corrections order and an intervention order. The conduct he engaged in was terrifying for his former partner and two children who were present. The community corrections order which was in place was partly imposed in relation to contravention of the family violence intervention order against the same complainant. There is a history from 2013 in relation to another contravention of an intervention order.
There are significant risks with respect to Mr Adut’s release in the context of a bail application… Mr Adut has pending matters which apparently are listed in the Sunshine Court.
… So I now have a history of non-compliance with the community corrections order, non-compliance with a family violence intervention order for the third time and commission of this offending while on bail.
My assessment is that it would be inappropriate in those circumstances to consider a period of deferral because it would be inappropriate to bail Mr Adut. I’m not satisfied that he would comply with conditions I might impose on bail.
…
He served four months so it looks like he had served 81 days at the time of sentence and...it appears he entered into an inpatient program, the Bridge Program in Bendigo for a period of time in December and that he did well there, he completed that program and then returned to Sunshine and things very quickly deteriorated and further offending is alleged…from February 2016…And it appears also then that he began to drop away from attendances to undertake community work and for supervision and left the state of Victoria in order to provide some support to his mother in Queensland.
…
… I’ve just read the summaries in relation to the offences that were dealt with by the report on 21 September with the imposition of sentence of four months’ imprisonment and a community corrections order. Specifically I recall asking in relation to those matters whether it was the same complainant that was involved and whether those matters arose out of the family violence incident against her. I was told that the charges related to an attendance at the complainant’s home… That sentence was imposed in relation to an assault upon the same complainant in her home and then an incident of attempting to break into the home of the same complainant while threatening her in a violent manner, in a manner that is absolutely consistent with the matter that is now before me.
…
So the first one was in relation to the affected family member but also - so the second incident, both his girlfriend, the protected person… and her cousin were present.
…
All right, Mr Adut. It has become clear to me as a result of the charge in relation to the breach of the community corrections order that your offending in August 2016… is a repeat of offending that you repeated last year against the same person, your former partner and mother of your child. It is also clear that your child was present during those past incidents and indeed was used by you in the course of apprehension by police on one occasion.
On this occasion, what is described to me, is that your family, your former partner and two children, were terrified in their home while you tried to gain entry into the home. Their experience had been that when you were in that home previously you had been violent to your former partner.
I absolutely accept that they were terrified and with good reason. You were very drunk, you were very drunk on the past occasion. I also accept that it is likely that in your past you saw and were traumatised by the infliction of violence on your own family, on yourself and on members of the community. I have no doubt that that has left an enormous effect upon you and upon the way you react in stressful environments. I have no difficulty with accepting that proposition but you have committed violent offences again and again and again in this community.
The law has attempted to respond in the past by offering you opportunities to engage in treatment. On the most recent occasion, you did well for a short period of time… but in the end you decided you would not comply with the community corrections order imposed and you left the state of Victoria and you continued then to fail to comply with the expectations of the court in relation to a sentence imposed by the court.
…
Mr Adut, you will be released from custody in about three months’ time in relation to this sentence. You know that the door of YSAS is open to you, that they understand you and that they are prepared to give you another go. There are also organisations like Foundation House that understand your history, particularly your history of being exposed to violence and the impact that it has on you… I urge you to maintain contact with YSAS and… Foundation House in order that when you are released you don’t inevitably end up in jail again…’
(c)Sunshine Magistrates’ Court: 22 December 2016:
‘HIS HONOUR:
…
You have pleaded guilty to three separate sentencing matters, three separate sets of victims on three separate sets of dates.
…
So what the court’s dealing with today is three separate sets of offences against the person with three distinct and different and separate victims of three separate and distinct separate dates… there is a charge of intentionally cause injury, a charge of recklessly cause injury, and a charge of unlawful assault. I’ve determined today that there be a straight sentence of imprisonment and there are various concurrency and accumulation orders that I propose to make so you’re quite clear.
I am imposing a sentence of imprisonment for the following reasons. Firstly, to reflect the objective gravity and seriousness of each of the separate offences against the person…
…Suffice to say this, however, each is serious, each involved a person that you did not know, or if you knew you knew on a limited basis by way of their professional occupation, the bus driver providing a service to you at the time you were on the bus...Prison Officer [redacted] in a… private prison… That victim was a victim who sustained those injuries in a public professional role… They are serious matters. They are serious because of… how you committed the offence, the method by which the injury was sustained, or the assault was committed. There is an assault in relation to the bus driver, an injury in relation to both the other two remaining victims.
…
… because you have taken legal responsibility for your conduct… I have factored that into the overall sentencing structure.
…
… You are now shortly to complete a sentence of imprisonment. You have priors for offences against the (indistinct)… I am imposing a sentence of 15 months’ imprisonment to be immediately served…
…
Summons Material
Material obtained under summons from the Registrar of the Sunshine Magistrates’ Court was lodged with the Tribunal between 19 and 26 September 2018. The Respondent has also lodged an Exhibit of Summons Material dated 8 October 2018,[16] numbering 409 pages and including information obtained under summons from the:
(a)Registrar of the Heidelberg Magistrates’ Court;
(b)Registrar of the Melbourne Magistrates’ Court;
(c)Commissioner of the Queensland Police Service;
(d)Victoria Police; and
(e)Registrar of the Toowoomba Magistrates’ Court.
[16] Exhibit R2.
The Respondent relies in particular on documents referring to violent conduct by Mr Adut against his former partner and family members.[17] Examples include:
[17] Respondent’s Statement of Facts, Issues and Contentions (RSFIC) dated 8 October 2018, p11-12 [33].
(a)30 March 2011:[18]
[18] Exhibit R2, 231-232.
At approximately 3:10 am on 30 March 2011 Police from GOODNA Police Station received numerous Triple 0 calls from occupants within the Unit Complex of…
…
On arrival police took up with a male, Akok Garang ADUT, the Respondent in this matter…The Respondent did not want police at the address and was not forthcoming with much information. The Respondent admitted to consuming a large quantity of alcohol during the evening.
Police entered the Unit and located a distraught female sheltering in her bedroom with 3 young children. The female identified herself as…the Aggrieved in this matter. The Aggrieved has trouble speaking and understanding English and has only been in Australia for one year.
The Respondent and Aggrieved are Brother and Sister.
The Aggrieved daughter translated for her mother. The Aggrieved stated that she was asleep in her bedroom when she heard loud shouting from the front of the unit. The Aggrieved has then observed her brother at the front door of her unit. The Aggrieved did not open the door because she knew her brother had been drinking.
The Respondent has then used his elbow on his right arm to smash the front window, causing it to shatter on the lounge room floor. The Aggrieved has then opened the Front door and let the Respondent in the house. The Aggrieved and Respondent have then been involved in a loud argument spoken in their native language. During the argument the Respondent has grabbed the left wrist of the Aggrieved and twisted it, causing pain to the Aggrieved….
(b)1 May 2015:[19]
[19] Ibid 383.
The AFM[20] and Respondent are in a de facto relationship and have a four-year-old son together. The AFM is currently pregnant. On Friday the 1st of May 2015 at approximately 5:00 am the respondent returned home drunk with male associates who were also drunk. The respondent went outside and had a cigarette. He then came back into the unit and repeatedly assaulted the AFM, hitting her around the head area. He also stated that he was going to “kill the baby in her stomach”… The argument continued in the bedroom of the house where the RESP kicked the AFM in the back several times. The AFM left the bedroom and went into the living room, taking her son with her. The Respondent followed her and continued to hit and push her while she was holding her four-year-old son. The RESP managed to take hold of their son. The AFM went outside and contacted 000… Police attended and observed the Respondent in a drunk state holding his son. Police attempted to speak to the Respondent however he used his son to prevent police from arresting him. He then went inside and locked the door…He resisted arrest and was eventually conveyed to the Heidelberg police station for interview and FVSN. Police have concerns for the safety of the AFM, her son and her unborn child given the threats and acts of violence. The Respondent has displayed violence during his arrest.
[20] Aggrieved Family Member.
(c)9 August 2016:[21]
[21] Exhibit R2, 376-377.
The AFM and RESP were in a relationship for 5 years and recently separated 6 months ago. They have two children together…
There is a full and current Family Violence Intervention Order with full conditions between the parties which include not to be within 5 meters of the protected person(s) and not to go to or remain within 200 meters of the protected person’s address.
The Intervention Order was explained and served on the accused on 4th of August 2016.
At approx. 11:58pm on Monday, 8 August 2016 the RESP attended the AFM’s home address located at… The RESP attempted to break into the premises via the bathroom window. The AFM could hear the RESP trying to break in and quickly wound the window closed to stop him. The AFM then closed and locked all windows in the house before barricading herself into the bedroom with her two children and called police.
The RESP then began kicking and banging on the front security door for approximately five minutes attempting to gain entry. Whilst doing this the RESP has broken off the security door handle and injured his hand in the process and leaving a small amount of blood on the doorstep. Unable to gain access to the premises via the front door the RESP has then used a brick which he found outside the address and thrown it through the living room window.
Throughout the incident the RESP was screaming and swearing at the AFM telling her to let him inside.
The AFM then observed the RESP running from the scene just prior to police arriving.
When the AFM opened the door to police she was shaking and crying uncontrollably. She continuously said “I’m so scared, I’m so scared.” The AFM appeared highly distressed and very shaken.
Entering the premises police observed a large brown brick near a smashed window in the living room. Police observed glass fragments spread right across the entire living room.
The two children were located in the corner of the bedroom huddled together in the foetal position on the ground. Both children were crying and appeared extremely upset, frightened and distressed. The AFM was continuously crying while with police. The youngest child was fretting and crying and took several minutes to calm down. The eldest child stayed in the foetal position on the ground in the bedroom while police spoke to the AFM…
The RESP was located by the Preston divisional van approximately 30 min later... The RESP was drunk and was drinking from a clear plastic bottle containing what appeared to be turpentine or methylated spirits or similar. The RESP was arrested and was extremely violent towards police…
Previous Formal Warning
The present matter is not the first visa cancellation process initiated against Mr Adut. Following his conviction for a number of offences on 3 October 2012,[22] his visa status was reviewed and the discretion under the Act was exercised to allow him to remain in Australia. A letter from the Department dated 21 January 2013 notified Mr Adut of the decision not to cancel his visa,[23] but warned him of the consequences of further offending in the following terms:
‘…However the delegate decided that you are to be given the following formal warning.
Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered.
(Emphasis in original).
[22] Exhibit R1, 43.
[23] Ibid 248-9.
On 25 January 2013 Mr Adut acknowledged receipt of the above warning, signing his name below the following text:
‘I, Akok Garang Akok ADUT acknowledge that I have received the Notice of decision not to cancel a visa under section 501(2) of the Migration Act 1958, dated 21 January 2013. I understand that I can again be considered for refusal or cancellation of any visa granted to me if further information of relevance comes to the attention of the Department at any time in the future and that if this happens, my past conduct and previous relevant information can also be reconsidered.’
Mr Adut continued to commit numerous serious and violent offences following receipt of this warning. He was sentenced to terms of imprisonment in April 2013,[24] September 2015,[25] October 2016[26] and December 2016.[27]
[24] Ibid 42.
[25] Ibid.
[26] Ibid 41.
[27] Ibid 40.
Evidence of Mr Adut
In his statement requesting revocation of the cancellation decision, attached to which is a Personal Circumstances Form dated 7 December 2016, Mr Adut sets out why he believes the cancellation of his visa should be revoked:
‘I came here as a refugee from South Sudan as a war torn country on sister humanitarian visa.
South Sudan is still in war and a huge violation of human rights abuse, eg. torturing, raping, child soldiers and killing of innocence people.
I have never gone back to S. Sudan since I came here as a child with my family and I don’t have any relatives there.
I have got immediate family here as a partner and two boys who needs my support at all time.[28]
[28] Ibid 110.
…
It would be returning me to a place that is extremely unsafe, which is why we fled - it will also send the wrong message to wider Australian community to just get rid of the problem rather than working on a solution.
I am not a citizen of my country of birth making me effectively stateless.
I would return and become a target to government / militia / army in order to join to fight. This also places my family here and extended family overseas in emotional turmoil about my life, safety and that of my family. [29]
[29] Ibid 121-123.
I have struggled since arriving in Australia firstly by fleeing my home country, spending 10 years in a refugee camp to then finally get accepted but without my parents. When I arrived I experienced racism and bullying whilst trying to forget the violence and rage I escaped.
I found that alcohol allowed my thoughts to stop but unfortunately it also allowed the built up anger to be released meaning I made some terrible decisions whilst intoxicated and at the time did not have the insight to reflect on my behaviour.
I have been working a lot on my drinking + mental health over the past year attending detoxes + rehabs. It has been up and down and I’m now looking into Naltrexone tablets to cease drinking all together.[30]
[30] Ibid 120.
With both of my children I have attempted to be part of their lives as much is possible. Since both of their births I have had access, visits, taken them on outings, etc however visits can be difficult to arrange as the mother and I are not able to communicate. I accept my role in events that have occurred resulting in less contact with my children but since having to think about possibly never seeing them again my heart breaks. I want to be the active, positive father they deserve.
I know what it is like to not have a father around and I’ve experienced first hand the problems associated with being disconnected from family. I do not want my boys to be taken down the same path because of my mistakes, I want to be there to guide + support them in making the right choices + having the best life in Australia.
I am the oldest male in my family and need to take care of them the way I have tried too.
My mum currently resides in Brisbane and prior to being in prison I was there helping take care of her. Upon my return I was remanded for warrants but want to return to Brisbane to take care of her.[31]
[31] Ibid 118-119.
I have made some terrible mistakes and as I have gotten older I have been able to see and accept my role in what I have done + have worked really hard in trying to change + made lots of progress prior to being in prison.
I have clear goals if released to the community, these being;
Ø start Naltrexone and remain abstinent from alcohol.
Ø attend local AA meetings.
Ø engage with Psychologist.
Ø gain access to my children + be a better, more active father.
Ø start my pre-apprenticeship course in Bricklaying to then get a job.
Ø support my family here and in Brisbane.
Ø get involved in helping / mentoring others within my community so they don’t go down the same path as me.
All of this is achievable if given a chance to stay in Australia.’[32]
[32] Ibid 122-123.
In further correspondence to the Department dated 17 January 2017, Mr Adut states:
‘…I have two (2) children [redacted], aged 5 and [redacted], aged 1½ with my de facto partner Ms [redacted], aged 24. At present [redacted] and I are separated but my children currently have much contact with my sister. [Former de facto partner] supports me unconditionally to remain in Australia and we plan on trying to reignite the relationship in the future.
Growing up in Australia has been wonderful, however it has been challenging for me at times.
My mother currently resides in Qld and is currently looking at relocation to Victoria. My cultural background has made it difficult to adapt to a normal life in Australia and the influence of my African friends in Melbourne, exasperated by alcohol use have contributed to my offending. I take full responsibility for my offending behaviour especially for the adverse effect it has had on the Australian community. I am truly sorry and it is now paramount importance to me become a law abiding person and hopefully remain in the Australian community.
During my time in custody I have maintained a positive and respectful attitude. I have utilized my time to address my vocational/educational and rehabilitative needs. I have completed the following educational courses, Food Handling, White Card (OH&S), Hospitality, Warehousing, Basic English & Mathematics. These courses will enhance my vocational needs upon release.
I have also spoke with the Clinicians and my Care Worker here at Marngoneet and have expressed my wishes to attend a violence related program. I am currently awaiting a clinical assessment and placement (if suitable) into such a program, these programs are generally completed towards the middle of your sentence.
Previously in the community I have studied as a pre apprentice (Bricklayer) at the Sunshine University. My studies have been interrupted by my current incarceration but my intention is to return to study in the future and complete the course, eventually I hope to work in this industry.
Previously in the community I have utilised the services of a Drug & Alcohol counsellor… I have been in regular contact with her via phone whilst in custody and she is prepared to offer me support and a structured maintenance plan upon my eventual release.
Furthermore, I understand I have been warned by your department previously, but it has now really hit home that my future could be in doubt, I ask you for one more chance.
My family especially my children need me and I need them. I hope to provide for them both emotionally and financially in the future. To be separated from my family and children would have a catastrophic effect on all. My children’s mother has indicated that if I turn my life around, there is a chance of reconciling our relationship. I intend living with my sister in [redacted] initially until I prove I am responsible again, [redacted] and I have previously been together about seven years, I owe it to her and the children to be a good father and partner. These dreams would be lost if I was expelled from Australia.
I will definitely continue to seek professional support of my Drug & Alcohol counsellor and adhere to her maintenance program. I will not associate with past friends who I believe are bad influences on me and my decision making.
If I was returned to Sudan, I fear persecution and it is a country that has no welfare system, poor health facilities and there are basically no support structures in place. Being a Third World developing country I believe I would become destitute in an instance if returned and a real possibility of being targeted by rebel soldiers.
I therefore ask you respectfully do favourably consider my revocation application given that I have made positive progress towards my rehabilitation, have genuine family support in Australia and my children need me. I believe I pose no risk to the Australian community in the future and the Australian community I hope, would expect me to remain here and support my family and children…’
I have noted Mr Adut’s latest statement dated 16 September 2018, which discusses his origins, relocation to Australia, schooling in Queensland, the commencement of his abuse of alcohol and cannabis and its impact on his life, his ceasing education in Year 9, his extensive history of offending, his efforts at rehabilitation, and a renewed aspiration to lead a law-abiding life. Mr Adut states that if allowed to remain in Australia, he will ‘continue to seek help for my mental health and trauma issues, as well as my alcoholism… I have also spoken to Dale about taking drug to help with my alcoholism (sic). I am hoping that the trauma counselling combined with the drug will make it easier for me to not drink alcohol. In his oral evidence, Mr Adut explained that the drug he refers to is Naltrexone, and that Ms Dale Doran intends to refer him to a Naltrexone-prescribing physician.
During the hearing Mr Adut spoke of his family circumstances prior to arriving in Australia in December 2004, encompassing exposure to ‘violence - fighting – gunshots and all that stuff.’ He said he ‘felt safe’ after arriving in Australia and recalled receiving trauma counselling from a ‘psych’ while attending primary school in Queensland. I note the letter from Foundation House dated 11 April 2017, which states that Mr Adut and his family were first screened under an early intervention program in 2003, and that Mr Adut received counselling from December 2005 until July 2007.[33] No reason is given as to why the counselling ended.
[33] Ibid 227.
Mr Adut submits that he first noticed being anxious in primary school. The anxiety worsened at high school, particularly when he was required to answer questions by teachers in a group setting. He found high school hard and had few friends. He kept mostly to himself and played basketball. He also claims to have found it hard living at his eldest sister’s home, due to ‘anxiety and flashbacks,’ which he says caused friction at times with the nephews he shared a room with. He subsequently met a friend and moved in with him at around the age of 14. He says they would ‘drink and smoke weed,’ which he claims alleviated his anxiety.
Mr Adut considers his older sister to be ‘like a mother’ to him, but didn’t tell her about his problems with substance abuse or trouble with the police after moving out, because ‘she had problems of her own to deal with.’ He claims to have only told her about the full extent of his criminal offending after his visa was cancelled. Mr Adut says he subsequently lived in Melbourne with his mother and sister for approximately nine months after they arrived in Australia in 2010, but ‘ended up meeting the wrong people’ and increasingly got into trouble. Mr Adut’s uncle (biological father’s brother) had undertaken to be a father figure, but he says this did not prevent his spiral into alcohol abuse and offending. He claims to have drunk alcohol to excess every day, commencing soon after he woke up. He committed robberies and assaults, but said he was ‘too drunk’ to recall many details.
During his evidence-in-chief Mr Adut agreed there had been an escalation in the seriousness of his offending over time. He recalled throwing a punch at a security guard at McDonald’s and then striking a train station attendant after he, in the company of three others, had asked for a lighter. Mr Adut recalled one of his friends telling the attendant he ‘looked like a terrorist’ because of the ethnic headdress he was wearing. Mr Adut said he ‘threw the first punch’ and agreed under cross-examination that this occurred without any provocation. He said it happened ‘so quick,’ because ‘when you throw a punch everyone started throwing punches.’ He pleaded guilty to the charge after being shown CCTV footage of the incident. Mr Adut recalled another incident relating to the assault of a police officer on 6 May 2011, which he said occurred after ‘we’d been drinking and ran out of alcohol. We went to get more and got into a fight,’ which caused them to come to the attention of and in conflict with the police.
He also recalls stealing a litre bottle of alcohol while heavily intoxicated, and was then shown store footage of the theft by police. Other convictions related to fights at a Hungry Jacks store, at a house party, with his former partner’s female cousin, and after Mr Adut punched a bus driver because the driver didn’t give ‘the right answer.’ He also accepted that he had punched a ‘smaller and shorter’ passing youth who had refused Mr Adut’s and his associate’s request for a cigarette. When a security guard nearby intervened, Mr Adut and his associate turned on the security guard. He also recalled a robbery where he ‘went for a walk and found a victim.’
Mr Adut moved briefly to Perth in order to ‘start a new life,’ but soon found himself in trouble with the police and returned to the east coast because he ‘couldn’t see my life changing there.’ He provided context to being found guilty of assaulting a female prison officer, which he said resulted from corrections authorities placing him on ‘handcuff regime.’ Mr Adut submits this followed his complaint regarding lockdown procedures and request to be transferred to Port Phillip Prison, where he ‘wouldn’t be locked down 23 hours each day.’ Mr Adut says the lockdown procedures were a response to riots prior to his arrival and he therefore felt as if he was being punished for the transgressions of others. He contextualised the assault as occurring while he was walking too quickly after an outdoor session. The accompanying female prison officer directed him to walk slower. He didn’t comply and she tried to restrain him and bring him to the ground. Unable to do so she was assisted by other prison officers and Mr Adut says it was when he went to ground that the female prison officer was injured. Mr Adut maintained that he hadn’t intended to assault her or cause any injury. In any event, this conviction cuts across his contention that he has ‘maintained a…respectful attitude’ in custody
Mr Adut agreed that on another occasion he had smashed a window at his sister’s house and grabbed and twisted her arm. He also recalled breaching intervention orders put in place to protect his former partner and children, but cavilled at the reference in the police report that he forcibly tried to access his former partner’s home, or that his children were present during the assault. He nevertheless agreed that his former partner and children were terrified by such conduct.
Mr Adut also cavilled at the details of other charges, including a police report that he had taken his shirt off during a fight in Brisbane’s Queen Street Mall. Mr Adut agreed he and his cousin had got into a fight with a security guard, but insists his shirt remained on. Mr Adut was also asked about a report that records him stating to police:
Fuck you cunts, you want to go hey, Westside crips will fuck you up man, your [sic] fucked cunt…come on cunts lets go…come on cunts you want to go im [sic] not scared.[34]
[34] Exhibit R2, 250.
Mr Adut submitted he had never said those words and the police ‘must have heard me wrong because I don’t speak like that.’ In response to further questions, Mr Adut explained that the Bloods and Crips were American gangs who often fight each other and traditionally wear blue and red clothing. He claims, however, that he has never belonged to any gang.
Mr Adut contends that he pleaded guilty to many of the charges against him despite often not having a clear recollection of what had occurred due to heavy intoxication. He said his guilty pleas were also partly to ‘recognise the victims.’ In relation to the offence against the prison officer, Mr Adut said he pleaded guilty to save himself the inconvenience of having to return to court on another occasion.
Under cross-examination, Mr Adut also agreed that he had made up stories and given false information to the police just to be let out on bail. When asked about his pre-sentence consultation with the forensic psychologist in 2011, Mr Adut said he had told Mr Ball what he wanted to hear. When asked by the Respondent’s legal representative whether that meant he had intentionally misled Mr Ball, Mr Adut agreed he had. When asked whether he said things that were untrue just to get him out of trouble, Mr Adut responded: ‘yes – from time to time, but not all the time.’ When the Tribunal informed Mr Adut that his admissions cast doubt on his credibility as a witness and gave rise to concerns about whether the Tribunal could trust anything he said, Mr Adut stated that he was being forthright in his evidence at the hearing because ‘this is the last stop for me.’ He said it was only when he trusted people that he would ‘let them into my life.’
Mr Adut agreed he had committed offences after receiving a formal warning about the consequences for his visa. He explained that he was ‘pretty young at that time’ and was ‘aware of the warning, but didn’t reflect on it then.’ Mr Adut agreed he was 21 at the time that warning was issued.
Mr Adut states that he met the mother of his children through a friend and they had their first child, a son, in April 2011. They never married or entered into a de facto relationship, but were ‘just together.’ A second son was born in November 2015. Mr Adut said their relationship had ups and downs and court orders were in place at times. One such order preventing him from seeing his former partner and children was in place until last year, but there were currently no orders in place. Although in previous submissions to the Tribunal Mr Adut stated that a resumption of his relationship with his former partner was in prospect,[35] at this hearing he stated ‘there is no future for us’ and ‘it is better for both of us to go our own way.’ He would now focus on building a better relationship with his two sons, for whom he agreed his former partner was the primary carer. No submissions were made that his former partner’s care was in any way deficient. Mr Adut said the younger child was frequently cared for by Mr Adut’s sister in Melbourne, because his former partner studied during the week.
[35] In his statement dated 17 January 2017, Mr Adut states: ‘My children’s mother has indicated that if I turn my life around, there is a chance of reconciling our relationship.’
Mr Adut said he spoke to his children by telephone almost every day, but that he and his former partner ‘don’t speak too much.’ He says he has a better relationship with his seven year old son than with his younger child, who doesn’t remember him because Mr Adut has been in prison or immigration detention since the child was born. When asked about his nieces and nephews, Mr Adut claimed to have eight nieces and nephews in Brisbane and two nieces and one nephew in Melbourne. Mr Adut was asked why in previous submissions it was claimed his sister in Melbourne had four children[36] but he insisted there were only two nieces and a nephew in Melbourne.[37] He claimed to communicate with his nieces and nephews all the time on the social networking platform Facebook. He claimed to regularly talk to the ‘younger ones’ to ‘see how they’re going in school.’
[36] Exhibit R1, 157.
[37] I note in this regard further inconsistency with the statement submitted by Mr Adut’s mother dated 1 April 2017, in which she claims her daughter in Melbourne has six children. See, e.g. Exhibit R1, 178.
Mr Adut stated that his mother was currently living in Queensland with his eldest sister and his relationship with her had strengthened during his imprisonment and immigration detention. He spoke to her frequently by telephone. Prior to his imprisonment he said that he helped take care of his mother by doing the shopping at times and ‘taking her to job network’ in relation to her social security benefits. He claimed that while previously living with his mother in Queensland, he was still able to care for her despite drinking to excess every day. Mr Adut said he had also contacted his biological father in South Sudan in about 2015, with approximately four telephone conversations between them. When asked about his father’s whereabouts at that time or subsequently, Mr Adut said he didn’t ask his father where he was living or other details. He stopped calling his father, who he says did not respond adequately to the questions Mr Adut had asked him.
There is evidence before me that large numbers of South Sudanese have been displaced due to the extended civil war in that country. Although a peace agreement was recently signed between South Sudan’s President Salva Kiir and main rebel leader Riek Machar, it remains to be seen whether it endures.[111] Previous peace deals only held for a matter of months. What is clear is that South Sudan’s population has relatively poor access to healthcare, which may make it difficult for Mr Adut to access the six-monthly checks for his Hepatitis B, or to access the anti-depressant recently prescribed for him, should it be considered necessary to take that medication in the longer term. The risk to Mr Adut arises in the context of South Sudan’s under-developed status within the international system and potential for further conflict and societal disruption. This weighs somewhat in favour of revocation.
[111] See, eg. nature and duration of ties
Paragraph 14.2(1) of the Direction states:
… Reflecting the principles at 6.3, decision-makers must have regard to:
a)How long the non-citizen has resided in Australia, including whether the non‑citizen has arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non‑citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
I have taken into account that Mr Adut arrived in Australia in 2004 as a 12 year old child as a dependent of his elder sister, after spending his early years in displaced persons and refugee camps in Sudan and Kenya. He has lived in Australia for approximately 14 years and his closest family members; his mother, two sisters, two biological children, and numerous nieces, nephews and other relatives, live in Australia. I have noted Mr Adut’s submission that his former partner supports him ‘unconditionally to remain in Australia.’ There is no evidence, however, from Mr Adut’s former partner to corroborate that claim. Given his previous record of violence against her, and his evidence in the context of this hearing that they are ‘not able to communicate,’[112] I consider his claim to be implausible.
[112] Exhibit R1, 122-123.
Mr Adut’s previous legal representative submitted that members of the family have limited financial means and it would impose an overwhelming burden on them to support him if he was returned to South Sudan, which ‘would result in permanent and ongoing breakdown of his family unit.’[113] His current legal representative refers to hardship arising from the continued separation of Mr Adut from his family, which I accept.
[113] Ibid 171.
Non-revocation would be understandably difficult for Mr Adut and many members of his family. He has significant family and emotional ties to Australia and would find it difficult to maintain those ties if returned to South Sudan. I place less weight on this consideration, however, as a result of Mr Adut’s offending in Australia commencing while he was still a child and becoming more serious and persistent into adulthood. There is no evidence that he has made a meaningful or valued contribution to Australian society through work or community causes. He has never worked and his persistent, violent offending since 2010 has imposed considerable costs on the community. I nevertheless find that on balance this consideration weighs somewhat in favour of revoking the cancellation of his visa.
Impact on Australian business interests
Paragraph 14.3(1) of the Direction states:
Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There is no evidence before me that Australian business interests will be affected by a decision not to revoke Mr Adut’s visa cancellation. No weight is therefore placed on this consideration.
Impact on victims
Paragraph 14.4(1), of the Direction states:
Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
There is no direct evidence from the victims of Mr Adut’s offending relating to the impact of a decision to either revoke or not revoke his visa cancellation. This includes an absence of evidence from his former partner. There is evidence before me, however, in the sentencing remarks and summonsed material about the impact of Mr Adut’s offending on members of his immediate family and other members of the community – including innocent citizens, emergency workers and police. A return to his previous pattern of offending would likely have a negative effect – including on his former partner, children and sister. But in the absence of any specific evidence from victims, I find this consideration weighs neither for nor against revocation.
Extent of impediments if removed
Paragraph 14.5(1) of the Direction states that:
The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)The non-citizen’s age and health;
b)Whether there are substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.
On the available country information, South Sudan’s developing economy has been adversely affected by the prolonged civil war, resulting in the slow development of institutional structures, limited services and employment prospects for its citizens. It is highly probable that Mr Adut would face hardship if returned to South Sudan, potentially including homelessness, unemployment, lack of family or social support, and an inability to access depression medication if required, and the six-monthly checks required for his Hepatitis B. Although he speaks Dinka, the fact that he has lived in Australia since the age of 12 means he may also experience cultural barriers. His quality of life is likely to be substantially diminished. That said, Mr Adut is a relatively young man under 30 years of age and would have access to the services and opportunities generally available to other South Sudanese citizens. These would undoubtedly be of lesser quality than what he can access in Australia. He would also lose easy access to members of his family living in Australia, noting that Mr Adut’s previous conduct and sentences of imprisonment have acted to limit that family access.
While I note the evidence about Mr Adut’s telephone calls with his father in 2015, his father’s current location and circumstances are unknown.[114] Whether Mr Adut can reconnect with his father or any other relatives of friends in South Sudan also remains unknown, although his unchallenged submission is that he has no social or family ties to rely upon. I accept on the evidence that he has no meaningful relationship with his father or other relatives to rely upon if returned to South Sudan. The prospect of deterioration in Mr Adut’s mental and physical health under such circumstances cannot be discounted.
[114] Ibid 172.
I find that Mr Adut would have a diminished quality of life and likely face significant difficulties in making a new life for himself in South Sudan, which weighs strongly in favour of revoking the original decision to cancel his visa.
Other Considerations
No additional considerations were advanced by the parties and I have not identified any additional ‘other considerations’ relevant to this case as provided for at paragraph 14 of the Direction.
CONCLUSION
Having regard to the combined effect of sections 501(6)(a) and 501(7)(c) of the Act, I find that Mr Adut does not pass the character test. Given that he was serving a full-time sentence of imprisonment at the time the original decision was made, his visa was liable for mandatory cancellation under section 501(3A)(a)(i) of the Act. In determining whether the conditional discretion under section 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of his visa should be exercised, I have applied the considerations at Part C of the Direction to the specific circumstances of his case.
Significant weight is placed on the serious, violent and prolonged nature of Mr Adut’s offending. It has been directed against his own wife in the presence of his children, and against other innocent citizens, emergency workers, police and a prison officer. He has continued to commit violent offences impulsively and recklessly, at times in company with others in a predatory fashion, and often while affected by alcohol. He has been unable to remain abstinent from alcohol for other than short periods despite considerable supports, before relapsing and engaging in further criminal conduct. He has been shown considerable leniency by the courts and formally warned about the consequences of any further offending for his ability to remain in Australia. In response, Mr Adut has demonstrated a persistent disregard for judicial orders and Australia’s laws, committing further offences, including while on bail or probation. There has been no discernible change in Mr Adut’s conduct since a pre-sentence psychological report almost seven years ago described him as an immature, reckless and impulsive young man who lacked insight, had generally poor judgement, and was easily led by more assertive peers. The intervening period does little to inspire confidence in Mr Adut’s renewed assurances about ceasing his abuse of alcohol and living a law-abiding life.
The nature of harm that arises from any further offending by Mr Adut is potentially very serious and his risk of re-offending is considered unacceptable. The Australian community would expect the Minister to refuse to revoke the mandatory cancellation of his visa. The primary considerations of Protection of the Australian community and Expectations of the Australian community weigh strongly in favour of refusing to revoke the cancellation of Mr Adut’s visa.
There are considerations weighing in favour of revocation, including the interests of Mr Adut’s two children and his nieces and nephews in Australia under 18. Given the specific circumstances of this case, however, less weight is placed on these considerations. That is because of Mr Adut’s absence from the lives of his young children for prolonged periods, the fact he has not played any sustained parental role, his past violent conduct against his former partner in the presence of their children, the court-imposed restrictions on Mr Adut’s access to his children, and the potential for further harm if he were to repeat family violence in the future. In a similar vein, Mr Adut’s engagement with his nieces and nephews is non-parental, and there have been long periods of absence, or limited meaningful contact between them due to Mr Adut’s multiple periods of imprisonment and subsequent immigration detention after being released from prison. There is no reliable basis to find that there would be a significant or enduring impact on Mr Adut’s nieces and nephews if he was unable to remain in Australia. Mr Adut’s renewed aspiration to re-connect with his children and to be a better uncle and citizen is admirable, but it is also entirely untested.
It is accepted that Australia’s international non-refoulement obligations and the strength, nature and duration of Mr Adut’s ties to Australia weigh somewhat in his favour. If he was required to return to South Sudan, Mr Adut would be confronted by significant impediments in establishing himself in a country that he last resided in as a very young child. That includes access to medical treatment, economic and social supports. He would also likely be socially isolated from his family in Australia. The impediments he would encounter weigh strongly in favour of revocation.
I have placed all of these factors in the balance and conclude there is not ‘another reason’ why the decision to cancel Mr Adut’s visa should be revoked. That is because the primary considerations of Protection of the Australian community and Expectations of the Australian community, outweigh the primary consideration of Best interests of minor children in Australia, and the other considerations which favour revocation.
DECISION
The decision of the Respondent dated 8 August 2018, not to revoke the mandatory visa cancellation decision, should therefore be affirmed.
150. I certify that the preceding 149 (one hundred and forty nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC [sgd]..................................................
Associate
Dated: 31 October 2018
Date of hearing: 23 October 2018 Solicitors for the Applicant: Mr Joel McComber, Samuta McComber Lawyers
Solicitors for the Respondent: Mr William Staples, Clayton Utz
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Statutory Construction
-
Natural Justice
-
Jurisdiction
2
5
0