Agwaig and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 4674

Agwaig and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4674 (23 November 2020)
Division:GENERAL DIVISION
File Number(s): 2020/5319
Re:Magid Santinu Agwaig
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:23 November 2020
Place:Sydney

The decision under review is set aside and in substitution the mandatory cancellation of the Applicant’s visa is revoked.
................................[sgd]................................
Chris Puplick AM, Senior Member
CATCHWORDS
MIGRATION – mandatory cancellation of visa – failure to pass character test – substantial criminal record – whether there is another reason for the mandatory cancellation to be revoked – ministerial Direction no. 79 – primary considerations – protection of the Australian community – the best interests of minor children – expectations of the Australian community – other considerations – international non-refoulement obligations – claims of harm and persecution – strength, nature and duration of ties – extent of impediments if removed – weighing of primary and other considerations – reviewable decision is set aside and substituted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 40A
Migration Act 1958 (Cth) ss 499, 500, 501, 501CA
Minister for Immigration, Citizenship and Multicultural Affairs, Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (20 December 2018) cl 6, pt C
CASES
Ali v Minister for Home Affairs [2020] FCAFC 109
Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123
Applicant S270/2019 and Minister for Immigration and Border Protection [2020] HCA 32
BFXK and Minister for Immigration and Border Protection (Migration) [2018] AATA 886
CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858
CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1546
Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47
Dang and Minister for Home Affairs (Migration) [2018] AATA 2095
Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 488
Do and Minister for Immigration and Border Protection (Migration) [2016] AATA 390
FCFY v Minister for Home Affairs [2019] FCA 1222
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
Jahnke v Minister for Immigration and Multicultural Affairs [2001] FCA 897
Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
Meyrick v Minister for Home Affairs [2020] FCA 677
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Minister for Home Affairs v Stowers [2020] FCA 407
PQSM v Minister for Home Affairs [2019] FCA 1540
Stewart and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1257
Stewart and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
The Trustee for the Fuzzy Events Unit Trust and Minister for Home Affairs (Migration) [2018] AATA 3273
VXKK and Minister for Home Affairs (Migration) [2018] AATA 3268
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Abur, William, and Charles Mphande, ‘Mental health and wellbeing of South Sudanese-Australians’ (2019) 55 Journal of Asian and African Studies 412
Amnesty International, ‘“Our hearts have gone dark”: The mental health impact of South Sudan’s conflict’ (2016)
Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: South Sudan’ (5 October 2016)
Department of Foreign Affairs and Trade, South Sudan < of Home Affairs – Country of Origin Information Services Section, ‘Sudan, South Sudan 20200522142421 – Citizenship' (26 May 2020)
Milner, Karla, and Nigar G Khawaja, ‘Sudanese refugees in Australia: The impact of acculturation stress’ (2010) 4 Journal of Pacific Rim Psychology 19
Smartraveller, South Sudan (12 May 2020) < ‘UNHCR Position on returns to South Sudan – Update II’ (April 2019)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
23 November 2020
THE (RE-)LOCATION OF THE APPLICANT

On 9 September 2020 the Tribunal held a case management telephone directions hearing in this matter at which stage Mr Magid Santinu Agwaig (Applicant) was in immigration detention in Sydney. Arrangements related to the date, time and procedures for the hearing of this application by the Tribunal were set accordingly. The Department subsequently and without notice transferred the Applicant to immigration detention in Western Australia. This required the Tribunal to change hearing arrangements to accommodate the difference in time zones at a subsequent telephone directions hearing held on 29 October 2020. Thereafter, the Department then further transferred the Applicant to immigration detention on Christmas Island, notifying the Tribunal only two working days before the hearing and again requiring a change in hearing arrangements to accommodate yet a further time difference.
The result of the Department’s actions necessitated the Tribunal to sit past 5:00pm and required a third, unscheduled day to complete the taking of evidence and the hearing of closing submissions. As the hearing on the third day was unscheduled and due to limited videoconferencing capacity on Christmas Island, the Department was unable to provide videoconferencing access to the Applicant who had to be heard by telephone on the final hearing day.
This action on the part of the Department is entirely disrespectful of the Tribunal and the necessity to change arrangements to accommodate time zone differences reduced and restricted the time available to hear the matter. The action of the Department is unconscionable and unacceptable.
Were it not for the COVID-19 restrictions on both interstate travel and hearing procedures, the Tribunal would have issued an order under section 40A(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) for the production of the Applicant before the Tribunal for an in person hearing.
The review of the application below, however, does not turn on the Tribunal’s criticism of the procedure adopted by the Department.
THE APPLICATION
The Applicant has applied to this Tribunal for a review of a decision made by a delegate of the Minister (Respondent) on 31 August 2020 not to revoke (non-revocation decision) the mandatory cancellation of his visa which took place on 6 September 2019 (cancellation decision).
The cancellation decision was a mandatory one cancelling the Applicant’s visa[1] under section 501(3A) of the Migration Act 1958 (Cth) (Act). This provision provides that where a visa holder has been deemed to have failed the “character test” and the person is serving a full-time custodial sentence his/ her visa must be cancelled. A person fails the character test if he/ she has a “substantial criminal record” which includes having been sentenced to a term of imprisonment of twelve months or more.[2]
[1] Global Special Humanitarian visa (Subclass 202).
[2] Migration Act 1958 (Cth) s 501(6)(a) and (7)(c).
There is no dispute that the Applicant fails the character test on the basis of his criminal convictions as discussed below.
The Applicant made representations to the Minister about revoking this mandatory visa cancellation decision. These were considered by the Minister’s delegate who, on 31 August 2020, declined to revoke the cancellation decision pursuant to section 501CA(4) of the Act.
On 2 September 2020 the Applicant applied to the Tribunal for a review of that non-revocation decision and the matter was heard by this Tribunal on 9, 10 and 11 November 2020 using the Microsoft Teams platform.
The Applicant appeared from the detention centre on Christmas Island with the assistance of an Arabic (Egyptian) language interpreter based in Melbourne on the first two days and an Arabic language interpreter based in Brisbane on the third day. The Tribunal, the Applicant’s representative and the Respondent’s representative appeared in Sydney.
Under the provisions of section 500(6L)(c) of the Act the Tribunal is required to make its decision within a prescribed period which, in this instance, is by 23 November 2020. In the event of the Tribunal failing to meet this deadline the non-revocation decision would be taken to be affirmed.
In an application for review such as this, the Tribunal effectively “stands in the shoes” of the original decision-maker (the Minister).
Section 501CA(4) of the Act provides that:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
It is thus up to the Tribunal to determine whether, despite the Applicant by definition having failed the “character test”, there is “another reason” why the decision to cancel the Applicant’s visa should be revoked.
In coming to its decision, the Tribunal is bound to have regard to ministerial Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction). This Direction came into effect on 28 February 2019 and was made under section 499 of the Act. Section 499(2A) mandates that a decision-maker, including the Tribunal, “must comply with a direction” so given.
PERSONAL HISTORY
Details of the Applicant’s personal history both prior to and since his arrival in Australia are not entirely clear and there are questions as to the timing of where the Applicant has lived which he was not able to clarify due to a failure of his memory in relation to some details.
The place of the Applicant’s birth is shown to be different in different documentation. On the Applicant’s Personal particulars for character assessment form for his Humanitarian visa, it is shown as “Gadaref, Eastern Sudan”,[3] as is on his baptismal certificate dated February 1983.[4] This place of birth was confirmed in the oral testimony of his sister Jovina Agwaig.[5] Gedaref (El-Gadarif), is a provincial town in what was then Sudan. The town lies on the eastern boundary of that country not far from the border with Ethiopia. In 2011, after a protracted and bloody civil war, the country of Sudan was divided and a new, independent nation, South Sudan came into being. The town of Gedaref remains within the boundaries of Sudan.
[3] Respondent’s tender bundle (Tender Bundle) at 341.
[4] Ibid 350.
[5] Transcript dated 9 November 2020 (9 November transcript) at 23 [38].
The Applicant in his statement of 5 October 2020 states his place of birth to be “Kassala in the eastern region of Sudan”.[6] It is also stated to be Kassala in the Applicant’s Personal circumstances form in response to his mandatory visa cancellation dated 17 September 2019.[7] This claim is repeated in the Applicant’s formal submission to the Tribunal where he is described as “a person who is from Kassala”.[8] It should be noted that the town of Kassala lies not far from Gedaref and also remains part of Sudan after 2011.
[6] Applicant’s statement dated 5 October 2020 at [10].
[7] Section 501G documents (G documents) at 57.
[8] Applicant’s statement of facts, issues and contentions dated 6 October 2020 at 7.
The Applicant and his family arrived in Australia in June 2004.[9] The Applicant was part of his family group’s Humanitarian visa application, the primary visa applicant being his father (Santino Shanfwaig).[10] The Applicant was granted a Global Special Humanitarian visa (Subclass 202). The family group consisted of his father, mother and five siblings.[11]
[9] G Documents at [93].
[10] Tender Bundle at 349.
[11] At least two of his siblings appear to have acquire Australian citizenship: Jovina Agwaig in 2007 and Yolinda Agwaig also in 2007.
Departmental records show the family to be members of the minority Christian community in Sudan. The Applicant’s father is listed as being a member of the Dinka tribe and having Dinka as his primary language. His mother is listed as being of Nuba ethnicity with Arabic as her primary language. The Applicant and each of his siblings are listed as being of Dinka ethnicity and being able to speak both Arabic and Dinka.[12]
[12] Tender Bundle at 349.
In her oral testimony the Applicant’s sister, Ms Jovina Agwaig, identified as being of Nuba ethnicity via her mother:
SENIOR MEMBER: Yes, and you and your family are a member of which community within Sudan?
WITNESS: My mum is from north.
SENIOR MEMBER: Yes.
WITNESS: And my dad is from south, but my dad is living in Katuma, he’s in - like, in Sudan. In North Sudan.
SENIOR MEMBER: Yes.
WITNESS: (Indistinct).
SENIOR MEMBER: And ethnically are you members of Dinka, Nuer or which particular ethnic community within Sudan?
WITNESS: My dad is from Dinka.
SENIOR MEMBER: So your dad is Dinka, is he?
WITNESS: Yes. And my mum’s from a different tribe. My mum’s from Nuba.
SENIOR MEMBER: From Nuba?
WITNESS: Yes.
SENIOR MEMBER: Yes. And do you or your brother - do you identify as Dinka, Nuer, Nuba or anything particular?
WITNESS: We’re more Nuba. Because we grow up where my mum is.[13]
[13] 9 November transcript at 24 [6]-[37].
The Applicant himself also identified as being of the Nuba ethnicity:
MR EHIMUDIAMEN [Applicant’s legal representative]: What tribe do you say you are?
INTERPRETER: Nuba.
MR EHIMUDIAMEN: Would you describe any other tribe or only Nuba?
INTERPRETER: Because we - because we spent the majority of our time living with our mum (indistinct) father, we did not live with him as much, so that’s how we identify.[14]
[14] Ibid 30 [44] – 31 [5].
The Applicant and his family fled Sudan in about 1998[15] as a result of the turmoil of the civil war which had flared up in around 1983 and took refuge in Egypt. It appears that the Applicant’s mother took the children there in the first instance and his father joined them some years later.[16]
[15] G documents at 83.
[16] Applicant’s statement dated 18 March 2020: G Documents at 73-74.
It was from there that they were granted their Humanitarian visas and travelled to Australia.
On arrival in Australia, the Applicant settled in Newcastle (NSW) where he undertook some 500 hours of the Adult Migrant English Program at Hunter TAFE. In about 2006 the Applicant met a woman with whom he formed a relationship and he moved to live with her in Brisbane. A daughter (Child C) was born to this couple. Although there are differing dates given for her birth, the Tribunal accepts that she was born in 2010.[17] This relationship ended and the Applicant entered into another relationship which resulted in the birth of a son (Child A) in the same year (2010). Both Child C and Child A live in Brisbane.
[17] This is the date given by the Applicant in his oral testimony: 9 November transcript at 40 [39]-[46]. An earlier date of 2008 is given by Sister Diana Santleben in her statement dated 17 March 2020 (G documents at 83) and a corresponding age is stated in the Applicant’s Personal circumstances form dated 17 September 2019 (G documents at 61).
This second relationship did not endure and in May 2017 he met his current partner (Alhan Adawe) with whom he had a third child, a daughter (Child S), who was born in 2018. Ms Adawe had a son from a previous relationship (Child I) who was born in 2015.[18]
[18] Statement of Alhan Adawe dated 14 September 2020 (statement of Alhan Adawe).
Ms Adawe is a New Zealand citizen of Somalian descent resident in Australia.[19] Prior to the birth of Child S the Applicant and Ms Adawe moved back from Brisbane to Newcastle where they lived, initially with the Applicant’s family.
[19] Ibid.
It was some months after this that the Applicant was arrested and incarcerated in December 2018.
In addition to the three natural children and one stepchild, the Applicant has a relationship with 5 nieces and nephews. Niece N, Nephew J and Nephew L (aged around 13, 8 and 4 years, respectively) are the children of the Applicant’s sister Suwaila Agwaig, Niece D (aged approximately 10 years) is the daughter of his sister Yolinda Agwaig, and Niece S (aged approximately 5 years) is the daughter of his brother Samaan Agwaig.[20]
[20] G documents at 64.
During the period from approximately 2006 to 2017 the Applicant was employed in a number of unskilled/ semi-skilled jobs in the meat, poultry and bakery industries variously working on the NSW/ Queensland border at Wallangarra or in Brisbane.[21]
[21] 9 November transcript at 32 [11] – 34 [9]; Transcript dated 10 November 2020 (10 November transcript) at 108 [4]-[35].
CRIMINAL RECORD
The Applicant has an extensive criminal record. The Tribunal reproduces it as set out in the Respondent’s statement of facts, issues and contentions dated 23 October 2019 (sic; scil. 2020) (Respondent’s SFIC), although it is also outlined clearly in the Australian Criminal Intelligence Commission’s National Criminal History Check report dated 21 October 2019 (National Criminal History Check).[22]
[22] G documents at 28-30.
(a) On 7 August 2006, the applicant was convicted in the Brisbane Magistrate’s Court of ‘Serious Assault’ and was sentenced to 4 months’ imprisonment, suspended for two years.
(b) On 15 August 2007, the applicant was convicted in the Newcastle Local Court of four offences involving: ‘Learner not accompanied by driver’; ‘Drive with middle range PCA’; ‘Use offensive language in/near public place/school’; and ‘Assault officer in execution of duty’. In relation to the assault of an officer, the applicant was placed on a good behaviour bond for 12 months. In relation to the driving offences, his licence was disqualified for 12 months and various fines were imposed on him. [He was also fined for his offensive language offence.]
(c) On 25 October 2007, the applicant was convicted in the Local Court at Newcastle for ‘behave in offensive manner in/near public place/school’, and fined $250.
(d) On 15 December 2009, the applicant was convicted in the Local Court at Newcastle of further driving offences: ‘Drive with mid-range PCA’, ‘Drive with high range PCA’, and ‘Drive on road while licence suspended’. He was fined, had his licence disqualified for 3 years and was given a further good behaviour bond with 200 hours community service.
(e) On 30 May 2012, the applicant was charged in the Brisbane Magistrates Court with ‘Assault or obstruct a police officer’. He was ordered to a good behaviour bond for a period of 6 months. No conviction was recorded. [He was also ordered to enter into a recognisance of $150.]
(f) On 9 January 2014, the applicant appeared on a charge of ‘commit public nuisance’ in the Brisbane Magistrates Court. He was fined $300 and was subject to a banning order for 6 months. No conviction was recorded.
(g) On 17 August 2015, the applicant appeared on a charge of ‘possessing dangerous drugs’ in the Brisbane Magistrates Court. He was ordered to enter into a recognisance of $350 and to a 4-month good behaviour bond as well as to undertake drug diversion program. No conviction was recorded.
(h) On 5 October 2016, the applicant appeared in the Brisbane Magistrates Court on a charge of ‘commit public nuisance’ and ‘failure to appear in accordance with an undertaking’. The applicant was ordered to pay a fine of $500. No convictions were recorded for the charges.
(i) On 6 April 2017, the applicant appeared in the Brisbane Magistrates Court on charges of ‘commit public nuisance’ and ‘possession of a knife in a public place or a school’. The Court recorded convictions for both charges and ordered the applicant to probation for 6 months.
(j) On 20 April 2018, the applicant was convicted in the Local Court of NSW for ‘continue intoxicated etc behaviour after move on direction’. He was fined $450.
(k) On 26 November 2018, the applicant was convicted by the Local Court at Newcastle of: ‘Stalk/intimidate intend fear physical etc harm (personal)’, two counts of ‘Destroy or damage property under $2,000’, ‘Enter enclosed land not prescribed premises without lawful excuse’, ‘Learner not accompanied by driver’ and ‘Drive with mid-range PCA [2^nd+ offence].’ The circumstances, as summarised in the delegate’s decision (at [22]-[23]), surrounding these convictions involved the applicant knocking on the door of his female victim’s home and insisting that she speak with him. The applicant removed the fly screen from the kitchen window and threw a brick through it, which landed in the house. The victim hid in the laundry and called the police. The applicant threw another brick through the other half of the kitchen window five minutes later. The applicant was ordered to pay a total of $1,750 in fines for the offences, participate in rehabilitation treatment as required by Community Corrections and was sentenced to a 12-month community correction order, commencing on 26 November 2019 (sic; scil. 2018).
(l) On 19 February 2019, while serving a community correction order for the 26 November 2018 convictions, the applicant was convicted by the Local Court at Newcastle of ‘Contravene prohibition/restriction in AVO (Domestic)’ for breaching an Apprehended Domestic Violence Order that was imposed 18 days prior in respect of his former partner, Ashol Arop. The applicant’s previous convictions of: ‘Destroy or damage property under $2,000’ and ‘Stalk/intimidate intend fear physical etc harm (personal)’ were called up for sentencing. The applicant was sentenced to 3 months’ imprisonment, commencing on 24 December 2018 and concluding on 23 March 2019. During his time in prison, on 20 (sic; scil. 26) March 2019, the applicant was disciplined by the Governor of Shortland Correctional Centre for ‘possess offensive weapon or instrument’ and ‘possess drug’, which were found in his cell during a routine search.
(m) On 14 August 2019, the applicant was convicted in the Local Court for his most recent offence of ‘Assault occasioning actual bodily harm in company of other(s)’. The relevant circumstances of that offence are summarised above. The applicant was sentenced to 12-months imprisonment commencing on 22 March 2019, with a non-parole period of six months concluding on 21 September 2019.[23]
[23] Respondent’s statement of facts, issues and contentions dated 23 October 2019 (sic; scil. 2020) (Respondent’s SFIC) at [19].

In relation to these offences, the Tribunal has noted the evidence given by the Applicant referring to the correctional centre offences of possessing an offensive weapon or instrument, possessing drugs, and possessing a drug implement,[24] and is inclined to accept his testimony to the effect that these were rather the possessions of his cellmate.[25] While he pleaded guilty to such charges,[26] this is not unexpected as no prisoner “dogs” on other inmates for very good reasons.
[24] Tender Bundle at 155-156 and 165.
[25] 9 November transcript at 46 [24] – 48 [2].
[26] 10 November transcript at 104 [20] – 105 [32].
The documents do not indicate that there have been any adverse incidents reported while the Applicant has been in immigration detention.
The role and influence of alcohol
This matter became a topic of some extensive evidence presented before the Tribunal.
It is obvious that the misuse of alcohol was involved in the PCA offences.
There are numerous references in NSW police incident reports which link the Applicant with the abuse of alcohol so much so that in one report, dated 10 October 2007, the police record states that “[t]he victim [i.e. the Applicant] is becoming well known to police for alcohol related incidents”.[27] After that date there are police incident reports which link the Applicant with abuse of alcohol on 13 October 2009, 18 October 2009, 11 August 2010, 14 February 2018, 4 August 2018, 10 August 2018, 22 October 2018, and 28 October 2018.[28]
[27] Tender Bundle at 27.
[28] Ibid 25, 24, 19, 17, 16, 15 and 13, respectively.
The Applicant submitted a report dated 30 October 2020 by Mr Sava Tsolis, a well-qualified psychologist who determined a primary diagnosis of post-traumatic stress disorder (PTSD) and a secondary diagnosis of major depressive disorder for the Applicant. Mr Tsolis’ report is predicated, in part, on:
my hypothesis that Mr Agwaig may have been utilising alcohol in an effort to self-medicate the distressing flashbacks and nightmares he was experiencing, as a consequence of his experiences in Sudan. He did report that he previously drank alcohol on the weekends. He stated that he often drank to excess in order to “give his mind a rest and stop thinking”. He displayed sufficient insight into his drinking to identify that it is a primary factor in his violent offending.[29]
[29] Report of Sava Tsolis dated 30 October 2020 (Tsolis Report) at 3.
Further, Mr Tsolis states that:
Mr Agwaig described his alcohol use in a manner, which suggested he had a history of binge drinking which he described as occurring in social situations. He reported that he is easily influenced by his peers and will often succumb to “peer pressure” in regards to drinking.[30]
[30] Ibid 4.
Mr Tsolis, who agreed with the Respondent’s representative that he was not an experienced forensic psychologist,[31] went on to prescribe a Treatment Plan for the Applicant based on continuing counselling and therapy. Mr Tsolis also noted the Applicant’s “willing[ness] to undertake psychological intervention” and his expression of remorse and intention not to re-offend, and found that “I do not believe that Mr Agwaig exhibits an entrenched criminal proclivity or propensity to engage in offending behaviours. His alcohol use has been the attributing factor of his offending behaviour”.[32]
[31] 10 November transcript at 62 [37]-[45].
[32] Tsolis Report at 6-7.
Mr Tsolis agreed that his opportunity to interview the Applicant had been limited to two sessions, each of two hours, conducted over the telephone and that this was the first occasion on which he had given evidence regarding the assessment of a forensic patient.[33]
[33] 10 November transcript at 60 [12]-[29] and 62 [37]-[45].
Mr Tsolis states in his report that “[i]t is clear that on each occasion that Mr Agwaig has come into contact with the law he has been under the influence of alcohol”.[34]
[34] Tsolis Report at 5.
The Respondent challenged his conclusion on this point. Mr Tsolis was taken to details of the Applicant’s offending in his National Criminal History Check.
Mr Tsolis acknowledged that:
[WITNESS]: I didn’t discuss all of the offences with him [the Applicant] one by one. We discussed the two major offences that I’ve got the fact sheets for so we discussed them at length. With the rest he – yes, we didn’t really go into details of all of those – he didn’t tell me anything about those.
[MR LIU – Respondent’s legal representative]: Okay. Because what I understand from your answer, Mr Tsolis, then is you can’t then say, can you, that on each occasion that Mr Agwaig has come into contact with the law he has been under the influence of alcohol; you have to accept that that’s not correct now, don’t you?
[WITNESS]: Yes. Well, I accept that I didn’t discuss all of these offences with him and what I did ask is with his criminal offending, you know, has he been under the influence which he responded ‘yes’ so that’s as good as I can say.
[MR LIU]: What I’m trying to get at is you can’t go as far as to say that on each occasion he offended he was under the influence of alcohol?
[WITNESS]: No, no, I can’t.
[MR LIU]: You did mention though for the most recent two occasions you had a specific discussion about alcohol consumption there; correct?
[WITNESS]: That’s correct.
…
[MR LIU]: And the offence is assault occasioning actual bodily harm in company of others; do you see that?
[WITNESS]: Yes, I see it.
[MR LIU]: Was that one of the offences you spoke to Mr Agwaig about in relation to his use of alcohol?
[WITNESS]: Yes.
[MR LIU]: And Mr Agwaig told you in relation to that offence that he was affected by alcohol that day?
[WITNESS]: That’s correct.
[MR LIU]: He told you that he was affected by alcohol at the time he committed the offence?
[WITNESS]: Yes.[35]
[35] 10 November transcript 67 [11]-[29] and [37]-[47].
Mr Tsolis was then taken to a Corrective Services NSW Sentencing assessment report dated 16 July 2019 (SAR), relating to the Applicant’s assault occasioning actual bodily harm in company of other(s) offence, in which the following was reported:
Mr Agwaig acknowledged that he was drinking alcohol on the day of the offence, however minimised his use and its impact on his behaviour.[36]
[36] Tender Bundle at 141.
Mr Tsolis agreed that the statement in the SAR constituted “a very different story to what he told me”[37] and when asked:
[37] 10 November transcript at 68 [44].
MR LIU: Mr Tsolis, I should make clear I’m not asking you to believe someone or to believe another person, I’m actually just asking you about what happens to your opinion if you came to some of the assumptions and so what I’m getting at is if you came to the assumption that you made initially about the link between the alcohol abuse and the offending in relation to the assault occasioning actual bodily harm and you adopt the assumption in the sentencing assessment report that Mr Agwaig minimised his use and its impact on his behaviour in relation to that offence; what I’m asking you is if you adopt that assumption does that undermine the opinion that you express in this paragraph where you say:
It is clear that on each occasion Mr Agwaig has come into contact with the law he has been under the influence of alcohol.
[WITNESS]: ?---Then, yes. Yes, it would.
[MR LIU]: And similarly, and this is my last question on this topic, if you go to … the second sentence at paragraph 3 on page 7 of your report you say:
His alcohol use has been the attributing factor of his offending behaviour.
[MR LIU]: Again, if you assume (indistinct) Mr Agwaig told you about the impact of his alcohol; do you accept that the opinion you express there is also undermined?
[WITNESS]: Yes.[38]
[38] Ibid 70 [22]-[47].
The Tribunal is conscious of the fact, to which it made reference in the hearing,[39] that the version of events contained in the Corrective Services report was not subject to testing by way of cross-examination of its author before the Tribunal and it should not be assumed that just because it differs in material ways from Mr Tsolis’ opinion that that necessarily devalues his report or opinions.
[39] Ibid 70 [16]-[20].
The Applicant’s sister, Jovina, gave evidence as follows:
MR LIU: I just want to take you to a few things that you said in your statement, Ms Agwaig. You say on page 1 of your statement, you describe your brother in this way. You say,
He was really dedicated to staying away from alcohol, which he told me he used to cover for his emotional suffering, and because of his functional illiteracy in English, he developed very low self-esteem.
I just want to ask you about the first part of that sentence, where you say he was really dedicated to staying away from alcohol. Can you please tell the tribunal what your brother said to you about his dedication in terms of staying away from alcohol?
WITNESS: He told me he wants to stop, because it was like he didn’t want to drink. But it was something that keeps making him drink. And he tried, I even said to him, like, “Maybe we should, you know, maybe you should go to like, talk to someone or get help from (indistinct).” Because I work, and I work afternoon shifts. So like I don’t really have (indistinct) time to - I’m trying to help him, but he’s holding himself back. He wants it quick. He doesn’t want to drink anymore, but none of his friends or anybody who’s around him was helping him to do it.[40]
[40] 9 November transcript at 18 [31]-[45].
She went on to infer that there may have been some cessation in the Applicant’s drinking but continued as follows:
WITNESS: No - no, my uncle passed 2018, and I was talking to Magid just on - in 2017, like just before Christmas we were having a big conversation and I said to him, you know, “Alcohol is not good for you. Are you realising that?” And he was saying, “Yes.” And he said, “Well I need help”, and I said, “The only help that you’re going to get is you. You have to help yourself.” And he said, “I’m trying, but every time I do, something just - like I don’t know what happens, and I just go back to it.”
MR LIU: Okay.
WITNESS: And then after my uncle passed away, he just went back to alcohol again.
MR LIU: So I just want to be clear, Ms Agwaig, you spoke to your brother about these problems with alcohol in late 2017, is that correct?
WITNESS: Yes.
MR LIU: Okay. You spoke to him in late 2017, but then as you just said, he went back to alcohol after that. Is that correct?
WITNESS: Yes. My uncle passed away, and him and my brother found my uncle dead in the house, and that was just - it was very difficult. It was very difficult times with him and my other brother.
MR LIU: Has your brother recently spoken to you about his use of alcohol?
WITNESS: Recently, yes.
MR LIU: When was the last time you spoke to him about his use of alcohol?
WITNESS: I spoke to him when he was - I think about every day, pretty much. Every day like before, I just keep reminding him. He’s been locked in somehow almost two years, or maybe - yes, almost two years. I’ve been reminding him. “Now you were there, you’ve been there, you’ve - from gaol to detention centre. You haven’t been drinking. Just remember that, and you can do it. I talk to him about it every day.”
MR LIU: What does he say to you about his use of alcohol after you speak to him?
WITNESS: He said he’s not going to touch it. He said that since he was in gaol. Since he was like, one week in gaol, he said he was never going to touch it, and he kept repeating it.[41]
[41] Ibid 19 [31] – 20 [27].
The responses of the Applicant to strategies to manage his alcohol abuse have been varied and inconsistent. There are indications that he wants to be involved with both pharmacological and counselling interventions[42] and also that he has made a number of excuses for not adhering to treatment regimes or maximising the value of counselling sessions.[43]
[42] Tender Bundle at 190.
[43] 10 November transcript 99 [17] – 102 [4].
The issue of the inter-relationship of alcohol use and offending and antisocial behaviour was considered recently by Deputy President Pascoe in the matter of Stewart. In that case the Applicant sought to relate all his offending behaviour to the fact that he was addicted to alcohol and drugs. While both the sentencing Judge (in the first instance) in that matter, and the Deputy President when the matter came before the Tribunal for review, considered this issue, both noted that issues of anger management and generally antisocial behaviour could not be discounted on the basis of drug and alcohol addiction.[44] That strikes a parallel with this application.
[44] Stewart and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1257, [26] and [33]. Upheld on appeal in Stewart and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196, [58].
DIRECTION NO. 79
Direction no. 79 provides that decision-making in these types of matters is to be approached within the framework of the principles set out in paragraph 6.3 of the Direction. These principles (inter alia) emphasise that entry into, and the right to remain in, Australia is a privilege and that non-citizens are expected to abide by the law and not cause harm to the Australian community. They provide that people who commit serious crimes should generally expect to be denied the privilege of entering or remaining in Australia. They also indicate that credit should be given to individuals who have made a contribution to the community (especially over extended periods of time) and that the impact on immediate family members of any forced removal of a non-citizen should be given consideration. Crimes against women, children or vulnerable members of the community are identified as being of a particularly serious character, as are offences against government representatives or officials due to the position they hold or in the performance of their duties. The Tribunal notes that this, of course, includes police officers.
Guided by these principles, the decision-maker must take into account the “primary considerations” in Part C of the Direction, in deciding whether to revoke a mandatory visa cancellation. The primary considerations are listed as:
(a)protection of the Australian community from criminal and other serious conduct;
(b)the best interests of minor children in Australia; and
(c)expectations of the Australian community.
The decision-maker must also take into account “other considerations”, some of which may be relevant and others potentially not. 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; and
(e)extent of impediments if removed.
The Tribunal is required to consider each issue in turn. However, it is important to emphasise other aspects of the deliberative process:
(a)While the Tribunal must be guided by the ministerial Direction and give effect to its provisions and requirements, when considering the totality of the evidence “[t]he choice of, and weight given to, the material before a Tribunal is a matter for it”[45] and “[t]he Tribunal is entitled to accept or reject or give such weight to the evidence provided as it thinks appropriate in all the circumstances”.[46]
(b)Although some considerations are listed as “primary” and others as “other” in the Direction, this is not to be taken to imply that “primary” considerations necessarily carry more weight or authority than “other” considerations,[47] and indeed the weight of “other” considerations may overbear those designated as “primary”.[48] In this respect it may be better to think of the “other” considerations rather as simply “non-primary”.[49]
[45] Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123, [45] per Spender, Moore and Foster JJ. Emphasis added.
[46] Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464, [27] per French J.
[47] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594, [23]-[26] per Colvin J; PQSM v Minister for Home Affairs [2019] FCA 1540, [51] per Colvin J; Minister for Home Affairs v HSKJ [2018] FCAFC 217, [24] and [37] per Greenwood, McKerracher and Burley JJ.
[48] FCFY v Minister for Home Affairs [2019] FCA 1222, [50] per Thawley J.
[49] Jahnke v Minister for Immigration and Multicultural Affairs [2001] FCA 897, [18]-[19] and [21] per Drummond J when considering the terms of Direction no. 17 (a predecessor direction in similar terms).
This was made more explicit in CFHQ where Deputy President Redfern, referencing Suleiman, stated:
… factors set out in Direction 65 as ‘other considerations’ should be given appropriate weight, which may, in some cases, outweigh the primary considerations.[50]
[50] CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858, [88].
Indeed, in Meyrick, the Federal Court stated that “[d]eterminations as to weight are quintessentially matters for the Tribunal”.[51]
PRIMARY CONSIDERATIONS
[51] Meyrick v Minister for Home Affairs [2020] FCA 677, [141] per Jackson J.
Protection of the Australian community
Paragraph 13.1 of the Direction identifies two particular issues for consideration, namely the nature and seriousness of the offending conduct under review and the risk to the community were an offender to commit further offences. The Direction also refers to engaging in “other serious conduct” and is not restricted to repetition of the original offence.
The importance of this criterion was made clear by the Full Court of the Federal Court in Djalic where it said that “[t]he authorities recognise that the protection of the Australian community lies at the heart of the discretionary power to cancel the visa of, or deport a non-citizen convicted of serious criminal offences”.[52]
[52] Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 488, 505.
Nature and seriousness of the offending conduct
Any offence which results in the imposition of a term of imprisonment must be considered serious as the Courts only impose custodial sentences as a last resort. The Applicant has been sentenced to terms of imprisonment on three occasions.
The first (7 August 2006) was in relation to an offence of serious assault for which a term of imprisonment for four months, suspended for two years, was imposed.[53] There are no further details of this offence before the Tribunal.
[53] G documents at 30; Tender Bundle at 36.
The second (19 February 2019) was relatively short, a period of 3 months, imposed for the offences of destroy or damage property (less than $2000), stalk/intimidate intend fear physical etc harm (personal) and contravention of an Apprehended Violence Order (domestic).[54]
[54] G Documents at 29 and 33-38.
The third (14 August 2019) was a sentence of 12 months imprisonment (6 months non-parole) for the offence of assault occasioning actual bodily harm in company of other(s). In relation to this offence, the sentencing Magistrate noted that the offence was “a serious offence. The conduct here is disturbing and concerning and, in my view, it should not be trivialised” and took into account the Applicant’s prior criminal history, noting it to be “not particularly good”, and the “ongoing need for specific deterrence” in relation to the Applicant. Nevertheless, the Magistrate also took into account the Applicant’s “issues with alcohol and antisocial behaviour”, that “[h]is prospects of rehabilitation are reasonably good. He has been assessed as medium risk of re-offending, so it is a slight concern but there are reasons to believe he will rehabilitate in due course” and that these were “special circumstances” in the case.[55]
[55] Ibid 31-32.
It is true that the Applicant has made various statements of regret about his activities, both in terms of his discussion with Mr Tsolis[56] and in submissions to the Tribunal.[57] However, in his Personal circumstances form dated 17 September 2019 he submitted:
In December 2018 my brother was friends with an Australian mate who gave my name and my brothers name into police, regarding a crime I did not commit or have any association with. At the time of sentencing, my lawyer and the DPP had a meeting which gave me the options to change the charge to “assault occasioning ABH” which meant I spent 6 months in gaol and 6 months NPP. I took this deal because I did not know how long it would take to clear me as not guilty and I wanted to go back home to the kids.[58]
[56] Tsolis Report at 6.
[57] G Documents at 75 and 80.
[58] G Documents at 67.

This formal denial of guilt or responsibility in submissions to the Department does the Applicant no favours.
His individual offences are not at the most egregious level of seriousness, although they are serious enough. This, however, should not be taken as discounting the suffering that was caused to the victims of the Applicant’s offending conduct. Nor should it detract from the clear statement in the Direction that violent crimes – especially those committed against women and vulnerable people – must be regarded as very serious and assessed accordingly.[59] The Tribunal weighs them accordingly.
[59] Minister for Immigration, Citizenship and Multicultural Affairs, Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (20 December 2018) (Direction) cl 13.1.1(1)(a) and (b).
In this case, while the Applicant has been convicted on three occasions of offences for which custodial sentences were given, he also has an appalling record of antisocial behaviour and of offences which involve matters of domestic violence. The police have been called on numerous occasions to deal with significant matters of domestic violence involving the Applicant and a number of different female victims. He has also breached an Apprehended Violence Order (domestic) while serving a community corrections order.
A close reading of the various police reports indicate that on the majority of occasions when they were called to respond to such domestic incidents what was occurring was most likely to be verbal altercations between the Applicant and various female partners, usually when both parties were affected by alcohol. One police report notes that “Police have attended these premises four times in the past six weeks in relation to domestic disputes between these parties”.[60]
[60] Tender Bundle at 12.
On occasions, damage to property was done during these disputes and there is one instance where it was reported that the Applicant had “pushed [the victim] down an internal set of stairs before slapping her to the face with his hand”.[61] In her oral evidence to the Tribunal, the victim in question said that “a lot has happened with me since then until now. I can’t honestly recall what I’ve said or did not say to the police and that’s my honest answer”.[62]
[61] Tender Bundle at 12.
[62] 10 November transcript at 80 [13]-[15].
Domestic violence incidents are identified in the Direction as very serious matters as they involve violence and are perpetrated against women and vulnerable people.
Police officers have been assaulted/ obstructed in the course of their duties, which is also serious.[63]
[63] Direction cl 13.1.1(1)(c).
The Applicant’s record of antisocial behaviour and other offending conduct is also considerable. On at least four occasions he has endangered members of the community by driving while under the influence of alcohol. The Applicant has also indulged in grossly offensive/ abusive/ racist language directed at the police and others. He has refused to co-operate with police investigations. He has been before the Court on the charge of possessing dangerous drugs and ordered into a drug diversion programme. He has committed several acts of public nuisance, entered inclosed land without lawful excuse, possessed a knife in public and failed to move on as directed. He has been involved in matters requiring police intervention in Brisbane, Newcastle, Hunter Valley, Taree, Islington, Tenterfield, Maitland, Armidale, Parramatta, Waratah, Coffs Harbour and Strathfield.[64]
[64] Tender Bundle at 8-34.
The Applicant has offended frequently, nearly every year since 2006 until 2019. However, the nature of the offending has remained somewhat constant and does not show a trend of increasing seriousness.
The Tribunal is aware that members of the South Sudanese/ Sudanese communities who have arrived in Australia as refugees face many problems in terms of acculturation and that for many of them the impact of their refugee experiences, post-traumatic stress disorder and general resettlement challenges can be hard to overcome.[65]
[65] Karla Milner and Nigar G Khawaja, ‘Sudanese refugees in Australia: The impact of acculturation stress’ (2010) 4 Journal of Pacific Rim Psychology 19; William Abur and Charles Mphande, ‘Mental health and wellbeing of South Sudanese-Australians’ (2019) 55 Journal of Asian and African Studies 412.
Cumulatively, the record of the Applicant is one which cannot but count against him in terms of the assessment of the nature and seriousness of his offending conduct and his proclivity for antisocial behaviour which puts others at risk.
Risk from further offending or other serious conduct
If the Applicant were to engage in further criminal or other serious conduct, the nature of the harm to the Australian community would vary depending on the nature of the reoffending or serious conduct. If the Applicant were to engage in violent offences, particularly against women, then the harm would be very serious. In relation to the Applicant engaging in further antisocial behaviour and offences, the harm would likely be somewhat less. There is, however, a continuing concern about the Applicant’s propensity for offending behaviour of a domestic violence nature, especially when/ if affected by alcohol.
As noted, sentencing Magistrate Price accepted advice from the SAR that the Applicant’s risk of re-offending was “medium”.[66] The Tribunal agrees that this is the correct assessment in relation to the chances of the Applicant engaging in further criminal or other serious conduct. Equally, the Tribunal notes His Honour’s conclusion that the Applicant’s prospects of rehabilitation are “reasonably good”.
[66] Tender Bundle at 142; G documents at 32.
Even with these comments in mind, a consideration of all the facts leads the Tribunal to find that this consideration of the Direction counts against the Applicant and that, on balance, it does so to a significant degree.
The best interests of minor children
The Direction at clause 13.2(3) and the Court[67] have made it clear that when assessing this consideration, the individual interests of each child must be taken into account and assessed separately “to the extent that their interests may differ”.
[67] Minister for Home Affairs v Stowers [2020] FCA 407, [60] and [66].
The Applicant’s life touches upon 9 such children: 3 biological children, a stepson, 3 nieces and 2 nephews.
Child C
Child C is the Applicant’s daughter by Juliana Lako.[68] As noted above there was some dispute as to her date of birth, but the Tribunal takes it to be in 2010. The Applicant lived for a very brief period (a “couple of months”) with the mother and daughter in Brisbane.[69] He has had limited contact with this child,[70] and has not had contact with her for some months because her mother has changed phone numbers (and the Applicant does not know this new number) and they do not maintain a Facebook connection.[71] The Applicant does not know exactly where Child C lives or the school she attends, other than that it is a Catholic school near where he used to live with them.[72] The Applicant’s evidence was that he provided some support, for example, taking her to and from school when they lived in the same house.[73] His sister (Jovina) stated that she had not seen him with Child C and that she was unable to say what sort of a parent he was to Child C.[74]
[68] 9 November transcript at 41 [9]-[23].
[69] Ibid 38 [43].
[70] 10 November transcript at 105 [41]-[44].
[71] 9 November transcript at 40 [1]-[3].
[72] 10 November transcript at 106 [15]-[35].
[73] 9 November transcript at 40 [9]-[12].
[74] Ibid 17 [15]-[23].
Child A
Child A is the Applicant’s son by Ayem Navel[75] and was also born in 2010. It appears that the couple met in Brisbane, where the mother and child still reside.
[75] Ibid 37 [4].
The Applicant gave evidence on the time which he spent with Ms Navel and Child A, which was confusing and contradictory. As best as can be determined from the evidence it appears that the Applicant and Ms Navel lived together for some 5 to 6 years in the period after Child A was born.[76] In his time in Brisbane the Applicant says that his involvement with Child A included taking him to and from school, playing with him and taking him to the park.[77]
[76] 9 November 2020 at 38 [3]-[7].
[77] Ibid 18 [15]-[18] and 38 [12]-[16].
He moved to Newcastle with Ms Adawe while she was pregnant with Child S who was born in 2018 but it is not clear exactly when he abandoned Ms Navel and Child A.
Since then, he claims to have visited and stayed with them on return visits to Brisbane at least four times in school holidays. However, recently he has had only limited physical contact with his son by speaking to him on a regular basis over the phone and video call.[78] The Applicant sister, Jovina, gave evidence that she observed the Applicant frequently speaking to Child A over the phone.[79] The Applicant knows where Child A lives but cannot recall the name of the school that his son attends.[80] A report from a mental health consultation records that “[c]lient states that he is in touch with his children everyday but his son cries every time they talk”.[81] There does not seem to be any ongoing relationship between the Applicant and Child A’s mother or any indication of any form of support provided to either by the Applicant.
[78] Ibid 17 [23]-[46] and 37 [25]-[26]; G documents at 62.
[79] 9 November transcript at 17 [23]-[24].
[80] 10 November transcript at 107 [37]-[46].
[81] Tender Bundle at 295.
Child S
Child S is the Applicant’s daughter by Alhan Adawe and was born in 2018. The Applicant met Ms Adawe in Brisbane. During her pregnancy they moved as a couple (together with Child I) back to Newcastle where they lived with the Applicant’s family.[82] Ms Adawe gave evidence that the Applicant had been “a great father to his daughter and also to my son throughout our friendship and our relationship”.[83] She attested to his commitment and support of both Child S and Child I, and similar evidence was given by Jovina.[84] The Applicant’s own evidence emphasised his closeness to both Child S and Child I and his role in domestic arrangements such as changing nappies, playing with the children and taking them to the park.[85]
[82] Statement of Alhan Adawe.
[83] 10 November transcript at 75 [10]-[11].
[84] 9 November transcript at 14 [3]-[25] and 15 [5]-[28].
[85] Ibid 45 [4]-[27].
Child I
Child I is the Applicant’s stepson and is the child of Alhan Adawe.[86] Child I was born in 2015 and his biological father apparently has been largely absent from Child I’s life and plays no meaningful role in his life. As noted above, it was the testimony of both Ms Adawe and Jovina Agwaig that the Applicant has played a parental role in relation to this child who he treats as his own son and for whom he cares deeply. It was also Jovina’s observation that Child I would refer to the Applicant as “dad”.[87]
[86] Statement of Alhan Adawe.
[87] 10 November transcript at 75 [7]-[31]; 9 November transcript at 13 [39] – 14 [25].
In relation to both Child S and Child I, the Tribunal notes that the Applicant and Ms Adawe are currently separated and there is some uncertainty about the extent to which their relationship would be re-established in the short-term were the Applicant to return to the community. However, Ms Adawe has indicated that to be their long-term goal.
[MR EHIMUDIAMEN]: If the tribunal was to release Mr Magid; can you tell the tribunal what you intend to do with Magid in terms of raising the children?
[WITNESS]: Well, to be honest at the present time, you know, if Magid was to be released for me personally I lost my father this year so I’ve got a grieving mother, I’m grieving also with my family so my plans is to stay put in Brisbane for a little while just until other family members come for my mum, you know, to give her a helping hand but for Magid the plans would be, that we’ve talked about, is obviously him get out, live with his sister that’s in Newcastle to settle back in, because he has been gone for quite a long time, to just come and settle back in, you know, get engaged with programs to help him with anything that he’s dealing with that we haven’t addressed in the past because, you know, I think (indistinct) and understanding and now we have a lot of understanding of Magid and what he’s gone through and what his problems are also and how to address those with maybe services, you know, get back home, get into work, you know, get some underlying help with any underlying issues he has that services can provide and in due time we come back together as a family, you know, because the kids are in school and child care and I don’t want to unsettle them but the process will obviously be in the long run to become a family again but (indistinct) - - -[88]
…
[Ms Adawe]: And also I would like to add whilst that’s happening my plans are to obviously also, you know, take the kids to Magid while he’s going through his healing and settling in, you know, and adjusting back, you know, continue our phone calls, our FaceTime and still keep, you know, the connection strong as possible.[89]
[88] 10 November transcript at 75 [33] – 76 [4].
[89] Ibid 76 [28]-[32].
It is also noted that when the police attended the premises being shared by the couple in October 2018 (following calls from neighbours reporting a “domestic incident”) they found “[b]oth parties well intoxicated due to alcohol … [they both] began consuming alcohol … with the Child present … both well affected by intoxicating liquor … They also advised that the Child was asleep in bed”.[90] This would have been Child I, then aged approximately 3 years.[91]
[90] Tender Bundle at 13.
[91] Transcript dated 11 November 2020 (11 November transcript) at 119 [19]-[28].
Niece N, Nephew J and Nephew L
Niece N, Nephew J and Nephew L are the children of the Applicant’s sister Suwaila Agwaig and they live in a suburb of Maitland, NSW. It appears that the children’s biological parents are their principal carers and there is no evidence that the Applicant plays a parental role in their lives. The relation seems to only be formal avuncular.
Niece D
Niece D is the child of the Applicant’s sister Yolinda Agwaig and, apparently, she and her mother live with Suwaila and her children at the same address in Maitland. As with her cousins, there is no evidence of anything other than a formal avuncular role played by the Applicant.
Niece S
Niece S is the daughter of the Applicant’s brother Samaan. She and her family live in Brisbane and there is no evidence of any meaningful or regular connection with the Applicant.
The best interests of the minor children vary in relation to the different children. It is clear that the Applicant’s role in the life of Child C is very limited with limited contact and no significant parental role or responsibilities. His role in the life of Child A is similarly limited and dependent upon the degree of access provided by his mother. Although the Applicant has played something of a parental role in the past, that was some time ago and he left Child A and his mother for another relationship. The extent of the bond between this father and son, although it existed previously with some commitment, is now conducted primarily by way of telephone and Facetime, is limited and does not appear to be a developing or maturing one, nor one that goes to developing a meaningful “parental” role for the Applicant in the life of Child A.
In relation to Child S and Child I, the Applicant plays a more significant parental role and there is no doubt about his commitment to these children. However, the future of this relationship is very much dependent upon the attitude taken by Ms Adawe, as she herself outlined. She has been the primary carer for the children and has also been pursuing her own course of education and personal development. It cannot be assumed from her testimony that the Applicant will have a significant opportunity to play a direct parental role in the future lives of these young people.
It is hard to establish that there is anything other than a formal avuncular role for the Applicant with any of his nieces and nephews. They all have their own parents as primary carers who play the parental roles, and there is no extensive evidence that they have had any meaningful contact with the Applicant.
The Direction requires the Tribunal to have regard to the likely effect of separation “on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways”.[92] In relation to Child C there is no evidence that the Applicant maintains any degree of contact with her. In relation to Niece N and Nephews J and L there is no evidence that the Applicant maintains any sort of direct or regular contact with them at the present. Nieces D and S are in a similar position. Additionally it should be noted that the ages of these minor children are such that they may either not be at the stage where electronic or telephonic contact would be appropriate and there are questions about the ability of these children to communicate in Arabic, which the Applicant indicated to the Tribunal was his preferred means of communication in its proceedings. The extent to which, even if effective non-personal communications can be established, they in any way contribute to a person playing a “parental”, supportive or developmental role of minor children is highly questionable. In relation to Children A, S and I, the Applicant’s contact with them has been primarily through the use of FaceTime and telephone conversations, and there is no reason that he would be unable to continue to do so if removed from Australia and it may be an appropriate means of contact as the children get older.
[92] Direction cl 13.2(4)(d).
The best interests of the minor children Child S and Child I weigh in favour of the Applicant to a slight degree, that of Child A to a lesser degree and those of Child C, Niece N, Nephew J, Nephew L, Niece D and Niece S to only a very small and limited degree.
Expectations of the Australian community
Determination of what these expectations may be has long bedevilled this Tribunal and various decision-makers.
In cases such as YNQY and BFXK, the Federal Court and this Tribunal have noted that this criterion starts from a position of being, ipso facto and indeed by intention, unfavourable to an applicant.[93] However, as was stated in BFXK, the degree of unfavourability is to be assessed in relation to the individual circumstances of each applicant and each case.
[93] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, [76]; BFXK and Minister for Immigration and Border Protection (Migration) [2018] AATA 886, [126].
In FYBR the Full Court of the Federal Court gave a definitive ruling[94] (by majority) as to the interpretation of this criterion. It stated (per Charlesworth J):
To the extent that cl 11.3 contains a statement of the expectations of the Australian community, the clause is “deeming”, in the sense explained by Mortimer J in the limited passage from YNQY upon which the Tribunal relied at [54] of its reasons (extracted at [20] above). It is not for the decision-maker to make his or her own assessment of the community expectations and to give that assessment weight as a “primary consideration”. I do not understand the judgment of Griffiths J in DKXY to differ from that of Mortimer J in YNQY in that respect. For my part, I prefer to describe the clause as imputing or ascribing to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.[95]
[94] On 24 April 2020 an application for special leave to appeal this decision was dismissed by the High Court.
[95] FYBR v Minister for Home Affairs [2019] FCAFC 185, [67]. Emphasis added.
The other judge of the majority (Stewart J) put it in these terms:
… it is not the decision-maker who makes an assessment of community values on behalf of the community, and that those values are expressed as norms in Direction 65.[96]
[96] Ibid [104]. Direction no. 79 is in identical terms to Direction no. 65 on this point.

His Honour also said:
Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.” This limited expression of “community expectations” by the Government is, one would expect, quite uncontroversial which is an attractive feature given the heterogeneity of views in this area.[97]
[97] Ibid [101].
Charlesworth J, on the same matter, stated:
Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.[98]
[98] Ibid [75].
It is thus clear that the Tribunal must find that the expectations of the Australian community weigh against the Applicant once it is established that an applicant has offended against the law.
However, as noted above, it is a matter for the Tribunal to assign the weight to be given to that negative conclusion as it sees fit. What may militate in favour of an Applicant (that is, result in this consideration being given lesser weight than might otherwise be the case) is the repeated position of the Tribunal that although community expectations may be negative they are not necessarily punitive[99] and that the idea of people having a “second chance” and a chance at rehabilitation is something which is quintessentially Australian.[100]
[99] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336, [36].
[100] Do and Minister for Immigration and Border Protection (Migration) [2016] AATA 390, [23]; The Trustee for the Fuzzy Events Unit Trust and Minister for Home Affairs (Migration) [2018] AATA 3273, [65]; VXKK and Minister for Home Affairs (Migration) [2018] AATA 3268, [138]; Dang and Minister for Home Affairs (Migration) [2018] AATA 2095, [91].
Given the totality of the Applicant’s record it must be accepted that the expectations of the Australian community, as the Court has explained, weigh significantly against the Applicant and nothing weighs in the Applicant’s favour to give this consideration less than significant weight.
OTHER CONSIDERATIONS
As already noted, these “other” considerations are additional but not lesser than those considered above as “primary”.
International non-refoulement obligations
Claims in relation to such obligations need be considered only when they are raised squarely by an applicant or when the facts of the case make it a mandatory relevant consideration.[101] However, when they are raised, the Tribunal must give active intellectual consideration to them and cannot defer such consideration to some other time and some other decision-maker.[102]
[101] Applicant S270/2019 and Minister for Immigration and Border Protection [2020] HCA 32, [10] per Nettle, Gordon and Edelman JJ.
[102] Ali v Minister for Home Affairs [2020] FCAFC 109, [45].
The Applicant has made a detailed statement of the fears of harm and persecution should he be returned to either Sudan or South Sudan. The gravamen of these concerns is that:
·he is a citizen of neither country and as a result may be subject to harm and discrimination,
·he would be subject to persecution as a Christian if returned to Sudan,
·he would be subject to discrimination and potential harm if returned to South Sudan because he was born in Sudan and speaks Arabic,
·he might face harm or death because of the ongoing conflict in Sudan,
·members of his family suffered, and some of them were killed, during the protracted Sudanese civil war,
·he might be forced to engage in military or tribal conflict in South Sudan.
·he would have no means of survival in either country as he lacks family or other support or requisite linguistic or professional skills.[103]
[103] Applicant’s statement dated 5 October 2020 at [10]-[25].
The Applicant also provided further details of what he claims was the killing of close members of his family and many members of “the tribe I belonged to”, although whether this was due to tribal, religious or political causes was not clearly articulated. The Applicant, however, did mention that the later killing of one of his uncles allegedly resulted from his uncle’s “unwillingness to be involved with another political/ tribal uprising in response to opposition in the south”.[104]
[104] G documents at 72-76.
As a starting point it is necessary to determine if the Applicant is a citizen of either Sudan or South Sudan.
Historically, what was then the Caliphate of Omdurman was overthrown by the British in 1898 and merged into their administration of Egypt as part of the Anglo-Egyptian Condominium Agreement. Egypt was granted self-government from Britain in 1952 and Sudan in 1953. Sudan was proclaimed an independent nation on 1 January 1956. It did not take long for the country to descend into civil war, primarily between the Islamic/ Arabic north and the Christian/ Animist/ Nilotic peoples in the south. The civil war resulted in the formal division of the country into Sudan and the newly created nation of South Sudan in July 2011.
The Applicant asserts he was born in Gedaref (El-Gadarif) in what then was, and still is, Sudan.
The Applicant’s sister states that their father was from the “south”.[105]
[105] 9 November transcript 24 [13].
In evidence to the Tribunal, the Applicant made reference to the fact that “I haven’t been in the South Sudan with my dad’s family…”.[106]
[106] 11 November transcript 121 [38]-[39].
The Applicant’s submission in reply states that “the parents of the applicant as a matter of fact were not born in South Sudan”.[107]
[107] Applicant’s submission in reply dated 2 November 2020 at [7].
This appears to be flatly contradicted by a statement by the Applicant’s parents. They write:
He doesn’t have any relationship tight with anyone back in South Sudan because when we lefted (sic) South Sudan to North Sudan quite long time ago, He was still breathfeeding (sic) as a child and he grew up pretty in the Northern Sudan up to Egpty (sic) until we resettled here in Australia.[108]
[108] G documents at 81. The timing would also have allowed for the child’s baptism to be held in Gedaref: Tender Bundle at 350.
This is consonant with the Applicant’s further statement in which he states, after describing the loss of family members:
Thankfully my mum survived and therefore my life continues also. From there we went to North Sudan and gathered together waiting in hope for anyone else who may of survived to appear.[109]
[109] Ibid 73.
However, Sister Diana Santleben, who has known the family since their arrival in Newcastle, writes that:
Magid and his six siblings were born in the town of Kessalar in Sudan (not South Sudan).[110]
[110] Ibid 83.
In his Personal particulars for character assessment form, the Applicant lists the place of his father’s birth as “Rumbek – Sudan”.[111] Rumbek is a city in the Lakes State of South Sudan and was the interim capital of South Sudan until Juba became the permanent capital.
[111] Tender Bundle at 341.
Questions were raised about the Applicant’s tribal identity. All the initial documentary evidence before the Tribunal points to the Applicant being of Dinka ethnicity, and the claims of Nuba ethnicity only emerged at a later stage in this application for review.
What is not in question is that the entire family claim membership of the Christian (Roman Catholic) faith and his father is described as a Catholic parish worker and catechist.[112] This is consistent with the choice of family names: his parents are Santino and Sakina, his siblings are Jovina, Suwalia, Yolinda and Samaan. The names of his father and siblings do not appear to contain any Islamic or Arabic elements and all reflect a Christian tradition.
[112] Applicant’s statement dated 5 October 2020 at [21]; G documents at 83.
There are other references by the Applicant to his father not wanting to join the “Rebels”[113] and his testimony that:
My father used to work in government, but I’m not sure because I was too young. I don’t know which department, he was working for the government …[114]
[113] G documents at 70 and 73.
[114] 9 November transcript at 30 [1]-[3].
All these elements taken together initially persuaded the delegate that the “family is from what is now the nation of South Sudan”.[115]
[115] G documents at 22.
In its SFIC, the Respondent contends:
The Country of Origin Information Report (COI Report) dated 22 October 2020, which summarises country information relevant to the applicant’s circumstances, supports the view that the reference country for the purposes of the Tribunal’s assessment of this consideration is South Sudan, and not Sudan. This is principally because the applicant is a member of the Dinka ethnic group, which entitles him to South Sudanese citizenship. The COI Report (at page 8) refers to a journal article on Sudanese and South Sudanese nationality laws, which contains the observation that:
The striking result of Article 8(1)(b) [of the South Sudan Nationality Act 2011] is that every Dinka and Nuer inside or outside South Sudan will automatically acquire South Sudanese citizenship by operation of law.
The COI Report (at page 4) also acknowledges country information stating that amendments made to Sudan’s Nationality Law in 2011 provide for “automatic loss of nationality to any person presumed to have acquired South Sudanese nationality”, with very narrow qualifications to this general rule. The COI Report (at page 9) refers to further country information which states that “legislation in Sudan prohibits dual nationality with South Sudan”.
On the basis of the available country information and the evidence concerning the applicant’s nationality and ethnic origin, the Tribunal should find that his country of citizenship is South Sudan and that South Sudan is the country of reference against which to consider any non-refoulement obligations (and, later, the extent of any impediments).[116]
[116] Respondent’s SFIC at [43]-[45]. Footnotes and citations omitted.
The Applicant’s right to South Sudanese citizenship on the basis that his father (and hence possibly his grandparent(s) or great grandparent(s)) was born there is made clear in advice from the Department of Home Affairs document Sudan, South Sudan – Citizenship.[117]
[117] Department of Home Affairs – Country of Origin Information Services Section, ‘Sudan, South Sudan 20200522142421 – Citizenship' (26 May 2020).
This Tribunal endorses both the original finding of the delegate and the submission in the Respondent’s SFIC. In this respect, the identification of the reference country is clearer than was the determination in CKT20[118] to which the parties addressed in closing submissions.
[118] CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1546.
If that is the case, then the “reference country” in question in this application would be South Sudan. The Department of Foreign Affairs and Trade’s (DFAT) Country Information Report: South Sudan[119] notes that the country is predominantly Christian, that the Dinka tribe is the largest single tribe in the country (35.8%) and that the government is Dinka-dominated. Equally, recent advice from DFAT is to the effect that a renewed internal civil war between different South Sudanese factions has rendered the place dangerous and that the humanitarian situation in the country is dire,[120] and Australians are advised not to travel there.[121] That warning is a general one to all persons contemplating travelling to South Sudan – it is a dangerous place and one to be avoided where possible.
[119] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: South Sudan’ (5 October 2016) (DFAT Report).
[120] Department of Foreign Affairs and Trade, South Sudan < Smartraveller, South Sudan (12 May 2020) <>
In this respect, however, the Applicant’s position is no different from anyone else’s and there is no reason to conclude that he would be particularly endangered if returned to South Sudan. He will have choices about where he lives in South Sudan and can elect to live in an area or community where his Dinka ethnicity and Christian profession of faith are protective of his welfare. There was no evidence before the Tribunal as to the extent that any of his father’s family or community members remain in South Sudan. He has no involvement in political activity which would cause him to be regarded with suspicion by the authorities.
There is no reason to believe that the Applicant would be discriminated against or be in personal danger there as a result of his ethnicity (as part of the dominant Dinka tribe), his religion (as a Christian in a majority Christian country), or any other “convention reason” as outlined in the various international conventions related to Australia’s non-refoulement obligations.
Strength, nature and duration of ties
There is no doubt that the Applicant has been in Australia for many years (approximately 16) and that all his primary family ties are here. However, he committed his first offence not long after arriving in Australia[122] and has had a chequered history of employment and long periods of unemployment. It appears that he has been active in at least some community organisations such as those associated with the Christian Baptist Church,[123] although there was no evidence of the exact extent of this.
[122] Direction cl 14.2(1)(a).
[123] G documents at 69.
The Applicant has provided references from various family[124] and non-family members[125] which attest to his good character in recent years and the changes in his personal attitude following his incarceration. His family references emphasise his commitment to his family in Australia and his lack of family support in South Sudan/ Sudan while the others attest to his work with the community church.
[124] Aminag Mansour, Iglal Kodi, Jovina Agwaig, Alhan Adawe, Suwalia Agwaig, Yolinda Agwaig, Awor Ataing, Santinu Swaf and family.
[125] Sister Diana Santleben, Sister Elizabeth Brown.
It is clear that members of his family, as well as those people whom the Applicant has social links, who are Australian citizens or permanent residents would suffer a degree of emotional impact and distress were the Applicant to be removed from Australia, and that this would be particularly so in the case of his sister Jovina who has been a consistently strong advocate on his behalf as well as the children whom he has contact with and Ms Adawe. This may also contribute to the destruction of family ties.
Impact on Australian business interests
Neither party has raised any issues in relation to this consideration and it is one to which the Tribunal ascribes no weight.
Impact on victims
Neither party has raised any issues in relation to this consideration and it is one to which the Tribunal ascribes no weight.
Extent of impediments if removed
An important element in the Applicant’s submission goes to the state of his mental health. As already noted, Mr Tsolis has made a diagnosis of PTSD and major depressive disorder and while his findings in relation to the aetiology of some of the Applicant’s offending behaviour in his alcohol abuse have been challenged, the diagnoses remain.
In his submissions and in his oral testimony the Applicant referred to the impact of deaths and killings he witnessed in Sudan.[126] He referenced the “beheading” of a local milk man,[127] and the Tribunal pressed Mr Tsolis to confirm the use of this description when the Applicant reported these incidents to him, which he did.[128] This matter was raised to follow up a record in a mental health assessment report from the health authorities in the detention centre to the effect that:
Growing up in war so moved to Australia with his family. Did not state any personal experience from the war even was asked in the review. Saying only went to school for a while.[129]
[126] G documents at 73.
[127] 9 November transcript at 30 [23]-[26].
[128] 10 November transcript at 71 [33]-[44].
[129] Tender Bundle at 332.
The Tribunal does not give any significant weight to this record in the mental health assessment report, but rather accepts the Applicant’s response that he did not “feel like comfortable to chat about the things that I – I see in the war”.[130]
[130] 11 November transcript at 120 [32]-[33].
The Tribunal notes both the DFAT report on the poor, and indeed declining, state of health care provided in South Sudan,[131] a position endorsed by the UN Refugee Agency[132] and in the Amnesty International Report of 2016.[133]
[131] DFAT Report at [2.17].
[132] UNHCR, ‘UNHCR Position on returns to South Sudan – Update II’ (April 2019) at [10].
[133] Amnesty International, ‘“Our hearts have gone dark”: The mental health impact of South Sudan’s conflict’ (2016).
The Respondent, correctly stated that:
My submission on this consideration also proceeds on the premise that the receiving country, or the country of reference, is South Sudan. As I accepted, the applicant does not have family there, there’s no evidence he’s been there, and I accept that these are impediments and these are hardships that weigh in favour of revocation.[134]
[134] 11 November transcript at 134 [35]-[39].
Although the Respondent went on to question the extent to which the Applicant might need, and hence have access to, pharmaceutical products in South Sudan, it did not address the matter of effective or appropriate treatment for the Applicant’s mental health status.
There is no evidence that the Applicant suffers from any significant physical health issues. He speaks fluent Arabic and some English, which might be of value in seeking employment. He is familiar with Sudanese culture in general and the extent to which this is applicable in South Sudan where the principal differences arise from matters of religious affiliation.
Nevertheless, taking all these factors together the Respondent states:
It is open to the Tribunal to find that this constitutes a significant impediment for the applicant if removed, and to weigh this in favour of revocation.[135]
[135] Respondent’s SFIC at [58].
DISCUSSION
The Tribunal has considered all of the factors to which it is directed by Direction no. 79 and concludes as follows:
(a)Protection of the Australian community: There is a medium risk that the Applicant will reoffend but that the nature of his offending (and re-offending) behaviour may include serious matters of violent offences, domestic violence, and also general antisocial behaviour. Much will depend upon his ability to manage his problems with alcohol. The consideration weighs significantly against revocation.
(b)The best interests of the minor children: This consideration varies. There is some evidence that the absence of the Applicant would impact upon Child S and Child I to a slight degree, but that would be dependent upon the attitude adopted by Ms Adawe in terms of the re-establishment of her relationship with the Applicant. The impact upon Child A would be to a lesser degree and again dependent upon the degree of access provided by his mother. The impact on Child C and the nephews and nieces would be of a limited nature given the relatively minor role which the Applicant has played in their lives to date. Overall, this factor weighs in favour of revocation but only to a moderate or medium degree.
(c)Expectations of the Australian community: As the Court has made clear, these are to be taken as counting against the Applicant, leaving the Tribunal to assess the weight of those expectations. As noted, the combination of three appearances before the Courts where he was given terms of imprisonment, numerous incidences of reported domestic disputation with some instances of violence and with numerous offences of an antisocial nature (including four PCA charges) cause the Tribunal to weigh this consideration significantly against revocation.
(d)International non-refoulement obligations: These have been considered in the light of the Tribunal finding that the Applicant is a Christian Dinka who is a citizen (or eligible to be a citizen) of South Sudan. The Tribunal appreciates that it is not in the interests of anyone to be forcibly removed to South Sudan, particularly not in current circumstances when conflict is rife in South Sudan and forcibly returning the Applicant could put him, or anyone else in his position, in risk of physical harm. However, the Tribunal does not find that Australia’s non-refoulement obligations are engaged by this application and hence this consideration weighs neither for nor against the Applicant in terms of revocation of his visa. The threat of harm to him based on his personal status does not engage this element of the Direction or engage it in the way in which it is intended. Any threat of harm, as mentioned above, would be general and not related to these obligations; it should be considered as part of the assessment of the criteria related to impediments if removed.
(e)Strength, nature, duration of ties: The Respondent’s position is that this consideration does not count against revocation,[136] and the Tribunal agrees with that proposition. All the Applicant’s immediate family are in Australia and the Tribunal has found that the Applicant’s removal would impact adversely on some members of his family. He has obvious ties with other members of the Sudanese/ South Sudanese community which is one of the fastest growing ethnic/ refugee communities in Australia. He has some ties with his local Church and, although unskilled, has been able to find employment in the past. This consideration weighs significantly in the Applicant’s favour.
(f)Impact on Australian business or victims: There is nothing in relation to either of these considerations which requires the Tribunal to assess them.
(g)Extent of impediments if removed: These have been identified by both the Respondent and the Tribunal as being significant, and together with the lack of critical services (such as health care) in South Sudan this factor weighs significantly in favour of revocation. This weight is added to by the potential general risk of harm to the Applicant as discussed above in relation to non-refoulement obligations.
[136] Respondent’s SFIC at [52].

The Tribunal is thus left with two considerations weighing against revocation to a significant degree and two in favour to a significant degree with a third weighing to a lesser degree in favour of revocation. However, decision-making here is not just a matter of a calculus[137] – 2- against 2+ – but also a matter of understanding the exhortation given by Chief Justice Allsop in Hands:
The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.[138]
[137] Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47, [52].
[138] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225, [3].
The Tribunal is far from convinced that the Applicant will not appear before the Courts again. There continues to be a risk to the Australian community of the Applicant remaining in Australia, a risk the community would generally find unacceptable. However, the Tribunal finds that the potential impediments/ consequences of his removal to South Sudan in all the current circumstances, and the impact upon several minor children and other members of his family in Australia would, on balance, marginally outweigh those considerations favouring non-revocation.
He is being offered a second (indeed, more than that) chance and the Tribunal can only hope that he will appreciate the serious obligations which come with that.
DECISION
The decision under review is set aside and in substitution the mandatory cancellation of the Applicant’s visa is revoked.

I certify that the preceding 148 (one hundred and forty-eight) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

..............................[sgd]..............................
Associate
Dated: 23 November 2020

Date(s) of hearing: 9, 10 & 11 November 2020

Solicitors for the Applicant: Mr I Ehimudiamen, Ozidi Migration

Counsel for the Respondent: Mr T Liu

Solicitors for the Respondent: Ms S Sangha, Mills Oakley

Date(s) of hearing:	9, 10 & 11 November 2020
Solicitors for the Applicant:	Mr I Ehimudiamen, Ozidi Migration
Counsel for the Respondent:	Mr T Liu
Solicitors for the Respondent:	Ms S Sangha, Mills Oakley