Ajak and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 3023
•24 August 2023
Ajak and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3023 (24 August 2023)
Division:GENERAL DIVISION
File Number: 2023/4150
Re:David Bol Ajak
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Senior Member Wayne Pennell
Date of decision: 24 August 2023
Date of reasons: 21 September 2023
Place:Brisbane
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision dated 1 June 2023 made by a delegate of the Respondent.
……………………[SGD]…………………..
………………[SGD]……………..
Senior Member Theodore Tavoularis
Senior Member Wayne Pennell
CATCHWORDS
MIGRATION- non-revocation of a mandatory cancellation of Class XB Subclass 202 Global Special Humanitarian visa- where the Applicant does not pass the character test-whether there is another reason to revoke the mandatory cancellation decision-consideration of Ministerial Direction 99- index offending of rape-where risk of reoffending found to be moderate to high-where the best interests of minor children , links and ties to the Australian community weigh in favour of revocation- where legal consequences of the decision weigh strongly in favour of revocation- where Tribunal finds protection and expectations of the Australian community outweigh primary and other considerations in favour of revocation – the Tribunal finding there is no other reason to revoke the mandatory cancellation of the Applicant’s visa- decision under review affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
South Sudanese Nationality Act 2011CASES
Ali v Minister for Home Affairs (2020) 278 FCR 627
Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561
CRRN v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1050
M1/2021 v Minister for Home Affairs (2022) 400 ALR 417
MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35
QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1
Re TAA [2006] QCST 11
VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921
Walker v Minister of Home Affairs [2020] FCA 909SECONDARY MATERIALS
Ministerial Direction No 99- Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)
REASONS FOR DECISION
Senior Member Theodore Tavoularis
Senior Member Wayne Pennell
21 September 2023
INTRODUCTION
The Applicant is a 40 year-old male national of South Sudan whose Class XB Subclass 202 Global Special Humanitarian Visa (‘Visa’) was mandatorily cancelled by a delegate of the Respondent on 25 February 2020 pursuant to s 501(3A) of the Migration Act 1958 (Cth) (‘Act’) because he failed to pass the character test.[1]
[1] Exhibit 1, pp 94-100.
The Applicant failed to pass the character test pursuant to the operation of s 501(7)(c) of the Act because he had a substantial criminal record as he was sentenced to a term of imprisonment of 12 months or more.
On 7 April 2020, the Applicant made representations to the Respondent’s Department for his mandatory visa cancellation to be revoked. On 1 June 2023 a delegate of the Respondent refused to revoke the mandatory cancellation decision (‘Decision Under Review’). The Applicant was notified of this decision by email on the same day.[2]
[2] Ibid, pp 11-29.
On 9 June 2023, the Applicant applied to this Tribunal for a review of the delegate’s decision not to revoke the mandatory cancellation of his Visa. The hearing for this matter proceeded in-person before us on 14 and 15 August 2023. The Tribunal was assisted by a Dinka speaking interpreter in the hearing on both days. Both parties were legally represented before the Tribunal in the hearing.
The Applicant’s offending history in Australia as stated in the National Criminal History check report[3] can be summarised as below:
[3] Ibid, pp 30-31.
Court Date Offence Sentence Queensland District Court January 2020 Rape Conviction recorded
Imprisonment: 6 years
Rape Conviction recorded
Imprisonment: 3 years
Concurrent
Western Australia Magistrates Court December 2008 Unauthorised driving by learner drivers Fine: $100 Driving under the influence of alcohol Fine: $800
Disqualified from driving: 6 months
Queensland Magistrates Court November 2007 Commit public nuisance No Conviction recorded
Fined: $150
The Applicant appeared in-person before the Tribunal on both days of the hearing and his witnesses gave their evidence by telephone. The Tribunal hearing received oral evidence from the following:
·the Applicant;
·Mr TA (Applicant’s cousin);
·Mr MA (Applicant’s brother); and
·Mr JA (Applicant’s brother).
At the start of the hearing, the Tribunal discussed the material received from the parties and an agreed list of all the exhibits were admitted into evidence. This list appears as ‘Annexure A’ annexed to these reasons.
ISSUE
The issue before this Tribunal is:
·whether the Applicant passes the character test; and if not,
·is there another reason why the mandatory cancellation of his Visa should be revoked?
Does the Applicant pass the character test?
Section 501(6)(a) of the Act states that a person does not pass the character test if they have a substantial criminal record. Pursuant to s 501(7)(c) of the Act, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
The Applicant was sentenced to an imprisonment term of six years in January 2020 for the offence of rape (‘index offending’). Therefore, by the cumulative operation of ss 501(6)(a) and 501(7)(c) of the Act, we find that the Applicant does not pass the character test.
Is there another reason why the mandatory cancellation of the Applicant’s Visa should be revoked?
For the purposes of determining whether there is another reason to revoke the mandatory cancellation of the Applicant’s Visa, the Tribunal is required to consider the framework provided by Ministerial Direction 99 (‘Direction’)[4]
[4] Pursuant to s 499 of the Act.
Paragraph 5.2 of the Direction provides the following relevant principles which the decision makers must take into account in the process of deciding whether or not to revoke the mandatory cancellation of a person’s visa:
(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) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction requires a decision-maker to be informed by the above principles and further take into account the considerations identified in paragraphs 8 and 9 of the Direction.
In taking the relevant considerations into account, paragraph 7 of the Direction states:
‘(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.’
The primary considerations that need to be considered are stated in paragraph 8 of the Direction. These are:
·protection of the Australian community from criminal or other serious conduct;
·whether the conduct engaged in constituted family violence;
·the strength, nature and duration of ties to Australia;
·the best interests of minor children in Australia; and
·expectations of the Australian community.
The other considerations (but not limited to) that need to be considered are stated in paragraph 9 of the Direction as:
·legal consequences of the decision;
·extent of impediments if removed;
·impact on victims; and
·impact on Australian business interests.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
When consideration is given to Primary Consideration 1, we are guided by paragraph 8.1 of the Direction which requires decision-makers to keep in mind the government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. We will now address these considerations.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
To our minds, the nature and circumstances of the Applicant’s conviction for two counts of rape must be found to be extremely serious offending pursuant to paragraph 8.1.1(1)(a)(ii) of the Direction. As noted by the sentencing Judge that although there was no victim impact statement from the victim because she had tragically passed away prior to the Applicant being sentenced, His Honour considered the Applicant’s offending to have been persistent and somewhat prolonged, and he caused the victim to suffer injuries including vaginal bleeding.[5]
[5] Exhibit 1, page 33 at lines 44–47.
The Applicant had only briefly met the victim on a previous occasion. They did not know each other previously. The Applicant, the victim’s partner and the victim had been drinking at the [location redacted], they went back to the victim’s partner's residence and continued drinking. Sometime later, the victim’s partner left the premises. During his absence, the Applicant asked the victim to kiss him; she pulled her head away and tried to get away from him. The Applicant became forceful in his conduct towards the victim, he grabbed her by the hair and pulled her back onto a bed. When she tried to get up, he grabbed her by the throat and put his forearm across her jaw and throat while he put his other hand down the front of his own pants. Count 1 relates to an act of digital rape, which continued for about 10 minutes; and Count 2 relates to penile rape, which continued for approximately 20 minutes, during which time the victim suffered injuries, including bleeding from the vagina. She also suffered injuries to her right upper arm and right upper shoulder, as well as bruising to the top of the left breast and lacerations in the area of her mouth.[6]
[6]Ibid, lines 12–31.
When conceding the nature of his offending involved a sexual crime, the Applicant suggested that his offending was ‘serious’. The Respondent advocated that having regard to the nature of this index offending conduct, it should be viewed as ‘very serious.’
We are satisfied that upon application of sub-paragraph (a) the Applicant’s offending is totally unacceptable under any circumstances and we find that the nature of his offending has been ‘very serious’.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction refers to the types of crimes that may be considered serious by the Australian Government and the Australian community. The Applicant has not committed any offence in respect to causing another person to become a party to a forced marriage;[7] or being responsible for conduct grounding any finding that he does not pass an aspect of the character test that may be dependent on this decision-maker’s opinion;[8] or in relation to any crime committed during the Applicant’s time in immigration detention.[9] This sub-paragraph should be put to one side and rendered neutral for present purposes.
[7] Paragraph 8.1.1(1)(b)(i) of the Direction.
[8] Paragraph 8.1.1(1)(b)(iii) of the Direction.
[9] Paragraph 8.1.1(1)(b)(iv) of the Direction.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction requires a decision-maker (with the exception of sentences imposed for crimes or conduct mentioned in sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction), to have regard to the remaining sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant.
In regard to his remaining offences, in November 2007, the Applicant appeared in a Queensland Magistrates Court charged with an offence of committing a public nuisance. He was fined $150 and no conviction was recorded.[10] At a later time, he appeared in a Western Australia Magistrates Court in December 2008 in respect of driving a motor vehicle under the influence of alcohol (with a blood alcohol concentration of 0.244% -- nearly five times over the legal limit) and unauthorised driving by a learner driver. Those offences took place at 1:59pm in the afternoon.[11] He was convicted of both offences and fined $800 for driving under the influence and fined a further $100 for driving a vehicle on a learner’s permit without the supervision of an authorised person. He was disqualified from holding or obtaining a driver licence for a period of six months.[12]
[10]Exhibit 3, p 1.
[11]Ibid, pp 12-13.
[12]Ibid, p 17.
This type of offending when viewed against the balance of his criminal history may, at first blush, be considered relatively minor. However, it is a display of serious irresponsibility in the management and control of a motor vehicle. His drink driving and license-related offence clearly points to an incapacity for the Applicant to distinguish right from wrong and to otherwise conform to the rules of Australian society insofar as operation of a motor vehicle on a public road is concerned. The catastrophic potential of losing control of a motor vehicle as a result of being affected by alcohol and/or prohibited substances is the subject of constant campaigns by governments at all levels.[13]
[13]Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561, [43] – [45].
The Applicant knew or ought reasonably to have known the potentially serious adverse consequences for other road-users with him driving a motor vehicle under the influence of alcohol.[14] The Tribunal has often regarded driving offences to be of a very serious nature and road traffic laws are in place to protect the community, including innocent road users, from harm. A disregard for laws and authority generally is a display of an inability to distinguish right from wrong, and a selfish disregard for the safety of innocent members of the community who share the roads.[15]
[14]Ibid.
[15]QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1, [51].
The Applicant is, to an extent, afforded a benefit in relation to this sub-paragraph(c), as the sentences he has received for his non-precluded related offending are not, in and of themselves, significant or weighty. Those sentences nevertheless deal with obviously irresponsible and potentially very harmful conduct at the wheel of a motor vehicle. The safest finding is to conclude that his sentences for the non-precluded offending speak moderately to the level of seriousness of the totality of his offending as we have assessed it.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction compels an inquiry into the frequency of a non-citizen’s offending and/or whether there is any trend of increasing seriousness. This Applicant’s first recorded appearance in court was when he appeared before a Queensland Magistrates Court in 2007 for the offence of public nuisance. He was convicted and fined, although the court ordered that no conviction be recorded. He later appeared in a Western Australian Magistrates Court in 2008 in respect to the driving offences. He was fined and disqualified him from holding or obtaining a driver license for six months. He was also ordered to pay court costs. In 2020, he was convicted in a Queensland District Court for two counts of rape and sentenced to six years imprisonment.
The Applicant submitted that because the rape offences occurred on the one day, it could not be said that there was any frequency to his index offending. The Applicant did concede that when looking at his offending as a whole, there was a trend of increasing seriousness given that his earlier criminal history included offending of a less serious nature whereas his more recent offending involved the very serious offences of rape.[16]
[16]Exhibit 2 [31].
Although we are satisfied (and find) that the Applicant’s offending has not been frequent, his offending does betray a trend of increasing seriousness. His most recent convictions in regard to the rape offences revealed that the victim was not known to him which gives every indication that his offending on that occasion was opportunistic.
His offending appears to be getting more serious as he gets older and perhaps a more accurate observation is to compare the graduating seriousness of the nature of the offences from (1) anti-social type offending; then (2) committing a high range drink driving offence; and then (3) the very serious offences of raping a victim who was unknown to him. It can be readily seen that his offending graduates to a significantly higher level of risk and danger to victims. We are satisfied (and find) that this Applicant’s offending does demonstrate a trend of increasing seriousness.
Therefore, it can be safely found that the Applicant’s offending betrays a trend of increasing seriousness. This sub-paragraph 8.1.1(1)(d) militates in favour of a finding that this trend of increasing seriousness attracts very strong weight in favour of non-revocation.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction refers to the cumulative effect of the Applicant’s offending. To our minds, the Applicant’s conduct towards the victim of his index offending is such as to have no possibility of it being found to be acceptable to the Australian community. Violence against women is utterly reprehensible. Taking physical advantage of a woman for the perpetration of sexual violence, is conduct the Australian community should not be compelled to tolerate. The offending has not just resulted in direct and very serious harm to its victim but has placed the Applicant into a category of offenders whose conduct is totally unacceptable to the Australian community. The primary cumulative effect of his violent sexual offending against a female victim is to typecast the Applicant into such an offender.
The balance of his offending does not give rise to such a trenchant finding. This is for two reasons: First, the earlier (i.e. public nuisance, drink-driving and other traffic related) offending is markedly less serious. Second, this earlier offending was committed over a decade before his index offending. Be that as it may, it can be safely found that this Applicant does not appear to have taken any kind of deterrent or ‘never again’ understanding from his earlier conduct. Whether that failure was due to the passage of time or to a perhaps more likely possibility that his moral compass deserted him when he committed the rape offences, we can never know with certainty. It suffices to say (and find) that these two cumulative effects of his repeated offending most certainly speak to its level of seriousness which we think has been at least of a ‘serious’ nature, more likely ‘very serious’.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction refers to whether the Applicant has provided false or misleading information to the Department. We refer to the Applicant’s movement history in and out of Australia.[17] He first came here in October 2004 and has never left Australia. Further, the material does not otherwise demonstrate the Applicant failed to disclose his prior criminal offending in any incoming passenger card or any other document or paradigm. This sub-paragraph should be put to one side and rendered neutral.
[17]Exhibit 1, p 101.
Sub-paragraph (g): of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to whether the non-citizen has re-offended since being formally warned in writing about the consequences of further offending in terms of the non-citizen’s migration status to remain here, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. There is no evidence of any warnings of the type contemplated by this sub-paragraph. It should be put to one side and rendered neutral for present purposes.
Sub-paragraph (h): of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to a non-citizen’s offending in another country and whether that offence or conduct is classified as an offence in Australia. There is no evidence of any overseas offending by this Applicant. This consideration should be put to one side and rendered neutral for present purposes.
Conclusion about the nature and seriousness of the Applicant’s conduct
We have applied each of the relevant paragraphs appearing in paragraph 8.1.1(1) of the Direction. The relevant paragraphs applicable to the instant facts safely lead us to the conclusion (and finding) that the totality of this Applicant’s unlawful conduct in this country can be readily characterised as ‘very serious.’
The risk to the Australian community should the applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) of the Direction provides that in considering the need to protect Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) of the Direction provides that in assessing the risk that may be posited by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the non-citizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence…..;
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Nature of harm should the Applicant engage in further criminal or other serious conduct
Assessing the nature of the harm to individuals or the Australian community that may occur if the Applicant were to engage in further criminal or other serious conduct is informed by the nature of his offending to date, including any escalation in his offending. This assessment is informed by the Direction which provides the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused is so serious that any risk that it may be repeated may be unacceptable.[18]
[18]Paragraph 8.1.2(1) of the Direction.
We have found the totality of the Applicant’s offending conduct has been of a ‘very serious’ nature. This is certainly the case when one has regard to the circumstances surrounding the offences of rape for which he was convicted. If this Applicant were to re-commit any of his past index offending and/or his high-range drink driving offence,[19] such conduct could quite realistically result in very serious physical, psychological and possibly catastrophic harm to a victim(s). Any re-commission of the Applicant’s ‘very serious’ index offending and the harm that it would cause would be, to our minds, so serious that any risk of its re-commission would be unacceptable to the Australian community.
Likelihood of engaging in further criminal or other serious conduct
[19]That produced a blood alcohol reading over five times the legal limit.
Sentencing remarks-January 2020
When sentencing the Applicant for the rape offences, Judge Rafter SC took into consideration the mitigating circumstance of what was described as the Applicant’s very early plea of guilty.
In sentencing the Applicant, the learned sentencing Judge commented that consideration had been given to the contents of a psychological report which had been tendered at the sentencing hearing. His Honour noted the psychologist’s finding that alcohol was a contributing factor to the rape offences. His Honour also referred to the psychologist’s report mentioning the death of the Applicant’s younger brother in South Sudan. That psychological report has not been put before us in these proceedings.
The Applicant’s statement made on 12 April 2021
In a statement provided by the Applicant for these proceedings,[20] he expressed sentiments of remorse and acknowledged that his ‘behaviour was unacceptable and unjustified’. However, at an earlier time he made comments which contradicted those sentiments.[21] At first blush, one could rush into a finding that he displayed a significant lack of insight into the nature of his offending when he wrote the words ‘I can honestly say I am innocent of the charge’, and ‘I am serving time for a crime I did not commit’.[22] We daresay this risk engaged the mind of his learned representative in these proceedings who was astute enough to address the issue via a statement prepared on behalf of the Applicant.
[20]Exhibit 1 pp 61-63.
[21]Exhibit 1, p 60.
[22]Ibid.
In that statement, the Applicant ameliorates his above quoted position in these terms:[23]
‘Relevant Offending
13. On [date redacted] January 2020 I was convicted to two charges of Rape and sentenced to six years imprisonment.
14. The date of the offence was [date redacted] January 2019.
15. I was in pre-sentence custody for 358 days between [date redacted] January 2019 to [date redacted] January 2020.
16. I am eligible for parole on [date redacted] January 2021. I have applied, and am awaiting the outcome of my application.
17. The full time discharge date is [date redacted] January 2025.
18. My plea at the hearing was guilty.’
Completion Reports dated 12 January 2022 and 13 January 2023[24]
[23]Exhibit 1, pp 61-62.
[24]Exhibit 3, pp 18-28.
During his time in custody, the Applicant completed the “’Getting Started: Preparatory Program for Sexual Offending’ and the ‘New Directions: Medium Intensity Sexual Offending Program’. Although he had completed those programs, his lack of insight was reinforced by the observations outlined in the ‘Completion Report’ that he continues to ‘lack insight into how to obtain informed consent from a potential sexual partner’.[25] This report noted the Applicant presented with minimal responsivity factors and engaged in impression management characterised by providing information in such a way as to depict himself in a more positive light. Within that, he was observed to provide answers which he believed were the ‘right answers’ as opposed to giving answers representative of his actual thoughts/feelings, namely in relation to his understanding of consent and when it is/is not present.[26]
[25]Exhibit 3, p 27.
[26]Ibid, p 21.
Possessing insight into the harm caused by one’s offending is critical, particularly in respect to very serious categories of sexual offending. Good insight into the harm which has been caused is a protective factor. A person aware of the consequences of his or her actions on others is less likely to re-offend than a person who has no insight into the effect of their actions on others.[27]
[27]Re TAA [2006] QCST 11, [97].
It was acknowledged during his participation in the ‘New Directions: Medium Intensity Sexual Offending Program’[28] that he was able to identify his high-risk factors such as poor communication, avoidance coping (alcohol use, emotional suppression and isolation), poor emotional management (sex as coping, low self-esteem, and negative emotionally), poor problem solving (lack of consequential thinking) and entitlement to sex, and objectification of women. However, the Applicant did not agree that he objectified the victim, and this was identified within the program’s completion report to be indicative of a lack of insight by him into emerging treatment needs relating to hostility towards women.[29]
[28]Exhibit 3, pp 21-32.
[29]Exhibit 3, p 23.
The report considered the Applicant was able to identify behaviours associated with his poor problem solving and poor emotional management. However, he was unable or unwilling to recognise indicators that consent was not given by the victim nor that he objectified the victim. Although the report recognised the positivity of him being able to recognise relevant high-risk factors, the report however determined that his level of acceptance of these factors was questionable noting his tendency to put a positive light on negative aspects of his life.[30] Overall, the assessment summary appearing in these Completion Reports in respect to the static risk level of the Applicant’s sexual recidivism placed him at a moderate to high risk.[31]
[30]Exhibit 5, pp 21-22.
[31]Ibid.
There was a self-serving tone of the Applicant being a changed man when he submitted that the risk of him reoffending now is lower than at the time of his most recent removal from the community. None of this has clinical support and must be received very cautiously having regard to his above-mentioned comments bringing into question the extent of his insight into his offending.
In respect to other rehabilitation courses, the Applicant has completed a three-week ‘Lives Lived Well DO-IT (Drug Offender Intervention Treatment) Program.’[32] The program’s exit report described him expressing a good understanding of how alcohol has impacted his life and damaged his relationships, and that he was committed to change. This was an assessment undertaken within the first year he was in custody and as revealed in a later assessment, he was reported to be providing information in such a way as to depict himself in a more positive light.
Letter of support from Uniting Care dated 10 June 2019[33]
[32]Exhibit 1, pp 81-82.
[33]Exhibit 1, p 79.
In its support letter, the Uniting Care Prison Ministry offered post-release support for the Applicant, and he was encouraged to keep the Ministry’s contact details as ongoing support and pastoral care was available should he need it. This comment was in the context of the support and care being available to the Applicant if he returned to the community, however it does not appear to have considered the Applicant’s transient employment history and his motivation to frequently relocate, sometimes interstate, in pursuit of work where the money is’.
He was encouraged to ‘keep in touch’ with the Uniting Church Chaplain when the Chaplain visited the prison. We are satisfied that although the support letter suggests that Uniting Care offers generic counselling to those confronted with personal, financial, and drug and alcohol issues, the letter confirms (at best) that a Chaplain visited the prison. The letter does not definitively say the Applicant had participated in, or that he had derived any benefit from, counselling of that nature.
Letter from QPASTT dated 8 August 2023[34]
[34]Exhibit 5, pp DA3-DA7; QPASTT is an acronym for ‘Queensland Program of Assistance to Survivors of Torture and Trauma’.
We make the following three preliminary observations. First, we note that at its commencement, the report provides as follows:
‘PURPOSE OF THE REPORT
This report has been prepared for the purpose of contributing to Mr David Bol Ajak’s Administrative Appeals Tribunal (AAT) hearing,and has been requested by his current legal representative (Jennifer Samuta, of Samuta McComber Lawyers).
Second, we are mindful that at its conclusion, this report says: ’Please note: This report cannot be reproduced in full or in part without the consent and approval of both the above named QPASTT client and QPASTT management.’[35] The ‘QPASTT client’ is, of course, the Applicant. The Applicant is represented by independent legal representatives in this proceeding. Those representatives have propounded the contents of this report in support of their client’s position in this matter. This report is in evidence before the Tribunal. Third, any retainer relating to QPASTT is between them and the Applicant’s representatives who commissioned the subject report. This Tribunal cannot be reasonably expected to - in the circumstances of the three items we have noted - approach and/or seek the consent and approval of QPASTT for the purposes of drafting these Reasons.
[35]Ibid, DA5.
We will therefore proceed on the basis that this Tribunal has the necessary ’consent and approval’ to discuss the contents of this report as part of its determination of the instant application.
Mr Jim Schirmer (‘Mr Schirmer’), a counsellor from QPASTT, which is a specialist counselling service providing assessment and counselling to survivors of torture and refugee trauma. Mr Schirmer is a qualified counsellor and has provided services to asylum seeking and refugee clients since 2013. He was not called as a witness at the hearing.
The Applicant’s predisposition to alcohol abuse and the relationship between that abuse and his most recent criminal behaviour was not the primary focus of Mr Schirmer’s report. Rather, his focus was the Applicant’s current psychological functioning and his mental state in relation to his refugee-related experiences and the claimed traumatic events prior to his arrival in Australia. To facilitate the preparation of the report, the Applicant attended counselling sessions scheduled at fortnightly intervals, and in all, he completed eight counselling sessions.
Mr Schirmer outlined that the Applicant had committed to counselling and had shown a capacity to develop effective coping strategies, although it is not explained what those strategies are, or how they would be engaged if he were to return to the community. He also reported that the Applicant would continue to be eligible for ongoing counselling for past experiences of trauma and torture to aid his trauma recovery. Notwithstanding that comment, there is no evidence of the Applicant ever previously engaging in, or of him having any need to engage in any prior trauma counselling.
In Mr Schirmer’s view, the Applicant’s reported symptoms were consistent with
Post-Traumatic Stress Disorder (‘PTSD’) with his current stressors deriving from his continued detention and the uncertainty surrounding his immigration status. Mr Schirmer thought the Applicant’s trauma recovery would be aided by the removal of those particular stressors. Mr Schirmer’s report is inconclusive about whether those reported PTSD symptoms and current stressors are (or would be) impacted by any resumption of the Applicant’s alcohol abuse given that alcohol abuse was a significant feature of his rape offending.
Other evidence
Mr MA is the Applicant’s brother. He has provided oral and written evidence for this proceeding. MA said that the Applicant was remorseful for his offending and he did not believe that the Applicant was at risk of reoffending. From his understanding, MA thought the Applicant was intoxicated when he committed the offences, which was very out of character. This is notwithstanding that MA told the Tribunal that he knew that the Applicant was involved in alcohol consumption, describing that “we used to tell him like alcohol is not good and he doesn't listen”.[36] He went on to describe that although he did not drink alcohol, and nor did his brother JA, this did not in any way prevented the Applicant from drinking alcohol. MA said:
‘It doesn't stop him, that's why he move — he move away from us and he go to Darwin, say that he is looking for a job. He got a job as (indistinct) security. He work there as a security guy and then that's why he involve in drinking, drinking, drinking and then after that, some people call out that you know, David is — he is drinking a lot here. We tell to one of our — our friends, like we send him a ticket, like to come back to our home. Then we stay together. And then he is getting — he is getting in trouble,…’[37]
[36]Transcript, p 52 lines 6–16.
[37]Transcript, page 52, lines 35–42.
MA said that at present, he speaks to the Applicant up to three or four times a day. In respect to the Applicant’s alcohol consumption, he said the Applicant “has quit drinking forever”.[38] We note that the Applicant has been in custody and/or detention for over four and half years since his arrest in January 2019, and therefore it is not surprising that he has quit drinking alcohol given that his ability to access to alcohol would have been negated during that period.
[38]Exhibit 5, [15].
MA told the Tribunal that because he spoke to the Applicant as much as he did, one thing that has clicked in his mind was that the Applicant had changed, he was not like he was before he committed the offences against the victim and he hope that he had changed his life.[39] When pressed about this claim, he agreed that in respect to the Applicant’s alcohol consumption, the only way that he could be sure the Applicant has stopped drinking alcohol is from what he says on the telephone. MA also agreed that if the Applicant came back into the community and lived with the family, he and JA would only have a limited capacity to control the Applicant’s alcohol consumption.[40]
[39]Transcript, page 48, lines 7–10.
[40]Transcript, page 59, lines 14–36.
Mr JA is another brother of the Applicant. He provided both oral and written evidence to the instant proceeding. In respect to the Applicant’s alcohol consumption, JA said that when the Applicant lived with him, he (the Applicant) did not drink alcohol at the house but instead chose to go out with friends to drink on the weekends. Although the Applicant is the only member of the family who consumed alcohol, JA accepted that he never confronted the Applicant about his use of alcohol.[41]
[41]Transcript, page 68, line 1.
Mr BB is a representative from the Queensland African Communities Council (‘QACC’). His letter appears in the material and dates from July 2022.[42] He did not give oral evidence at the hearing before us. BB’s observations were that each and every time he visited the prison, he was approached by the Applicant to express regret for the past choices he made and how much he has changed during his time in prison. BB’s letter does not specifically record the Applicant expressing regret for raping the victim.
[42]Exhibit 5, pp DA14-DA15.
Based on the conversations that BB had with the Applicant, along with his observations, BB said he believed the risk of the Applicant engaging in similar behaviour and potentially offending again was very low. He based this on the Applicant having a very strong local community that was ready to support him.
Notwithstanding the observations outlined with BB’s statement, we observe that there was no reference made to BB consulting with members of the Applicant’s family, or with any member of the local community who was ‘ready to support him’.[43] There was also an absence of explanation as to why he arrived at the conclusion that by observing the Applicant and conversing with him, there was any basis for suggesting that the risk of the Applicant engaging in similar behaviour and potentially offending again was very low. A particular feature of the Applicant’s offending behaviour related to his abuse of alcohol, and there was no reference made by BB about that particular concerning feature of the Applicant’s past behaviour or whether he has adequately redressed that concern.
The Applicant’s oral evidence about alcohol
[43]Ibid.
In relation to his use of alcohol, the Applicant told the Tribunal that he was never a daily user of alcohol because he worked five days a week. His consumption of alcohol took place on Fridays and Saturdays just to make him feel happy,[44] although he did concede that he would often revert to the use of alcohol when he was bored at home,[45] and we note the date of the rape offending fell on a Thursday.
[44]Transcript, page 10, lines 30–31.
[45]Transcript, page 8, lines 13–14.
He acknowledged a link between his alcohol use and his offending and says that he has seen the error of his ways and will not return to abusing alcohol. While the Applicant may now make such promises, the overall tenor of his evidence only gives rise to a limited level of confidence that he can achieve this goal. If he were to relapse into abusing alcohol, we find the probability of him reoffending would be moderate to high. On the state of the evidence, even with the alcohol abuse factor removed, we are of the view (and we find) that the Applicant represents a moderate risk of reoffending.
Is the risk of harm affected by any of the factors referred to in sub-paragraph 8.1.2(2)(c) of the Direction?
The Direction also contains a reference to sub-paragraph 8.1.2(2)(c). With reference to this specific sub-paragraph, this matter does not involve a ‘refusal to grant a visa to a non-citizen’. It involves an application for the ‘revocation’ of a decision refusing to revoke the earlier mandatory cancellation of the Applicant’s Visa. This specific sub-paragraph is not relevant to the determination of this application.
Conclusion: Primary Consideration 1
With reference to the weight attributable to this Primary Consideration 1:
(a)we have found that the nature and seriousness of the totality of the Applicant’s conduct to date has been, ‘very serious’;
(b)we have found that:
(i)if this Applicant were to re-commit any of his past index offending and/or his high-range drink driving offence [46], such conduct quite realistically result in very serious physical, psychological and, quite possibly catastrophic harm to a victim(s);
(ii)any re-commission of the Applicant’s ‘very serious’ index offending and the harm that it would cause would be, to our minds, so serious that any risk that it may be repeated would be unacceptable to the Australian community.
There are two components to our assessment of the Applicant’s recidivist risk. First, he were to relapse into abusing alcohol, we have found that the probability of him reoffending would be moderate to high. Second, even with the alcohol abuse factor removed, we are of the view (and we find) that the Applicant represents a moderate risk of reoffending.
Our analysis of the material leads us to a finding that this Primary Consideration 1 confers a ‘very heavy’ level of weight in favour of this Tribunal affirming the Decision Under Review.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
We agree with the contention of the parties that there is no evidence before us about the Applicant’s commission of any family violence.[47] .This Primary Consideration 2 should be put to one side and rendered neutral for present purposes.
[47]Exhibit 2 [40]; Exhibit 4 [35].
PRIMARY CONSIDERATION 3: THE STRENGTH NATURE AND DURATION OF TIES TO AUSTRALIA
This Primary Consideration 3 requires decision-makers to have regard to the strength, nature and duration of an Applicant’s links to the Australian community. There are four requisite considerations to be addressed in this Paragraph 8.3 of the Direction. We will address each in turn.
Paragraph 8.3(1): Consideration of the impact of this decision on the Applicant’s immediate family members
It is first necessary to identify the Applicant’s immediate family in Australia who are Australian citizens, permanent residents or people who have a right to remain in Australia indefinitely. As best as we understood the material, the Applicant has the following immediate family members in Australia:
(a)his brother, JA aged 43;
(b)his brother, MA aged 36;
(c)his sister-in-law RA.
The Applicant submitted that all his other family members in South Sudan, including his parents, are either deceased or displaced. He has two brothers and two cousins who are permanent residents in Australia. He suggested that he has significant ongoing connections to the Uniting Church and Salvation Army communities in Australia and is currently engaging with the trauma counselling service for refugees, QPASTT.
The Applicant’s brother MA. He provided both oral and written evidence. There is a written statement from him appearing in the material.[48] MA explained in his written evidence that he was aware that the Applicant had been convicted of rape and served a term of imprisonment, which resulted in his Visa being cancelled. He said the Applicant was civic-minded in the past, and had helped in the community a lot, including serving the community through the church and welcoming newly-arrived migrants to the community, and had helped people moving residences.
[48]Exhibit 5, pp DA6-DA7.
If the Applicant was permitted to stay in Australia, MA said the Applicant would be able to stay with their family in the house they all share.[49] The family would support him with any return to the community and the family would find him work. MA believed that the Applicant was “100% a changed man and will never reoffend”,[50] and with the support of the family, they will ensure the Applicant remains a positive and contributing member of the Australian community like he was before.
[49]‘They’ being the people referred to at [3] of the statement of this witness appearing at p DA6 of Exhibit 5.
[50]Transcript, p 51, lines 5-8.
The Applicant’s brother JA. Similar to MA, JA also provided both oral and written evidence to the instant hearing. There is a written statement from him appearing in the material.[51] JA is aware that the Applicant has been convicted of rape and has served a term of imprisonment. He understands that this caused the Applicant’s Visa to be cancelled.
[51]Exhibit 5, p DA9.
JA did not believe that the Applicant will reoffend, citing that the Applicant’s offending was very out of character for him. Because he has known his brother since they were children, he did not ‘think’ the Applicant will ever reoffend ‘like that again’.[52]
[52]Exhibit 5,9 DA9, [10].
Currently, JA owns his own home and he lives with wife, RA, and their three children, aged 12, nine and five. He said that his children are impacted by the Applicant’s absence as his children each love the Applicant. He said that because the Applicant is their uncle, the children have a very important relationship with him. JA also said that the Applicant and the children speak on the telephone several times a week, and in the past, the Applicant has lived with JA and his family and has been a part of the children’s lives.
On a personal perspective, JA said that he would be affected if the Applicant had to return to South Sudan. He said:
“we don't want David to go back, … because we came here because of war. It's very hard to us, so and we don't want David to go back. We need David to be here with us. And we are worried that David go back there to Sudan”.[53]
[53]Transcript, page 66, lines 1–7.
JA went on to explain that his worry with the Applicant being returned to South Sudan was associated with the war in that country and that it was not a good place to live. He said it was for those reasons that they all came to Australia and they did not want the Applicant to go back to South Sudan because he knew that something bad will happen just like before they all came to Australia, so they did not need him to be there again.[54]
[54]Transcript, page 66, lines 9–13.
JA said that he and his family are willing to support the Applicant if he was permitted to stay in Australia and allowed to return to the community, and he could stay with JA and his family, and they would help him find work.[55]
[55]Exhibit 5, DA9 [13].
JA said that he and his partner, along with their three children, live in a five bedroom house which he purchased. At present, his brother MA also lives with them. At the time the Applicant was taken into custody in January 2019, JA’s children were aged eight and five, with the youngest child aged only seven months.
During the period the Applicant has been in custody and detention, he has only personally visited the Applicant once, and this was when the Applicant was serving his term of imprisonment at the Wacol correctional facility. He said that he only visited the Applicant on the one occasion because of the COVID pandemic. He conceded that since the pandemic was over, he could have visited the Applicant, but he explained that he was a very busy man and worked seven days a week. Although the COVID pandemic has been over for quite some time, he has not visited the Applicant apart from that one occasion, and he did not take his children with him to visit their uncle on that occasion.[56]
[56]Transcript p 71, lines 17-35.
When asked about the relationship between his children and the Applicant, he conceded that the youngest child did not know the Applicant before he went into custody, but the other two children did know him and the Applicant spoke to the children on the telephone.[57]
[57]Ibid, lines 37-44.
In regard to the Applicant’s abovementioned immediate family members in Australia who would be impacted by an adverse outcome for the Applicant, we are satisfied that his ties with his immediate family members in Australia leads us to a finding that a moderate measure of weight in favour of the Applicant should be allocated to the totality of the strength, nature and duration of the Applicant’s ties to Australia on that basis. This finding is made subject to the proviso that the people representing those immediate family ties are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
Paragraph 8.3(2): Consideration of the Applicant’s ties to Australia having regard to a child/ren who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely
We interpret this component of Primary Consideration 3 to require us to determine whether more weight should be allocated to the Applicant’s ties to Australia in circumstances where his biological or stepchildren are Australian citizens. The Applicant does not have any biological or step-children in Australia. As already identified, the Applicant has minor-aged nieces and a nephew in Australia and their best interests will be discussed in the following Primary Consideration 4. We do not take into account the nature and extent of the Applicant’s ties with his abovementioned nieces and nephew for the purposes of this component of Primary Consideration 3 as they are not within the scope of this sub-paragraph. To be clear, this paragraph refers to ‘a non-citizen’s ties to his or her child and/or children’ [Our emphasis]. While we are satisfied that ‘child/children’ does encompass children/step-children, we do not consider it covers other children with whom the Applicant may have ties. We are therefore satisfied (and find) that this component of Primary Consideration 3 should be put to one side and rendered neutral for present purposes.
Paragraph 8.3(3) Strength, nature, and duration of ties with any family or social links generally
This paragraph looks at the strength, nature and duration of the extent of any ties the Applicant may have with (1) other family members; or (2) social contacts/links in Australia. The limiting proviso on this inquiry is that these two categories of people with whom the Applicant may have ties must be Australian citizens, Australian permanent residents and/or people who have a right to remain here indefinitely. This paragraph of the Direction does not specifically formulate a methodology as to the manner of how weight is to be allocated to these two categories of ties. Be that as it may, we will proceed to examine the Applicant’s links with these two categories of people and allocate weight in his favour to the extent of whatever strength, duration and nature there may be found in those links.
In his Personal Circumstances Form (‘PCF’), the Applicant listed the following ‘other relatives’ he has in Australia.[58] He nominated the above mentioned two nieces and one nephew. He also nominated four cousins. Apart from the statement and the evidence of his cousin TA which we discuss below, there is no other material from those ‘other’ family links in the form of any written statements evidencing the nature and extent of such ties.
[58]Exhibit 1, p 45.
As best as we understood the evidence before us, the relevant other family for the purposes of this sub-paragraph includes:
(a)his cousin, MD;
(b)his cousin PBD; and
(c)his cousin TA.
The Applicant’s cousin TA. TA’s statement outlined that because the Applicant is older than TA, he played the role of TA’s protector and confidant. TA went on to say that he could not imagine a better role model growing up.[59]
[59]Exhibit 5, pp DA1-DA2.
Within his statement, TA appeared to minimise the serious aspect to the Applicant’s offending and suggested that the Applicant ‘got carried away under the influence of alcohol and was ultimately arrested and sent to prison’ for what TA described as a ‘misconduct’.[60] He described that while it was true the Applicant was often heavily intoxicated, he had always been a peaceful man and never engaged in other illegal activities. He added that the Applicant was a good man who TA would, without hesitation, invite into his home.
[60]Ibid.
When cross-examined at the hearing, TA conceded that he was not aware of the specific nature of the rape charges the Applicant was convicted of in January 2020, and nor was he ever aware of him previously being in trouble with the law.[61]
[61]Transcript p 42, lines 12-13.
When describing the Applicant’s past alcohol abuse, TA said that he had seen him intoxicated when they lived in Toowoomba and they had discussed his use of alcohol. He said the Applicant acknowledged that drinking alcohol was ‘no good and that he was going to stop it. But that did not happen’.[62]
[62]Ibid, lines 19-27.
He asked about his description of the Applicant as being a ‘good man’. Specifically, he was asked to comment on that observation in circumstances where he did not know the Applicant’s offending involved two convictions for rape. TA’s response was that normally, when not under the influence of alcohol, the Applicant was a good man, but when alcohol is involved, it is a different story, and that is why the Applicant is in the situation in which he currently finds himself. He went on to say that the Applicant’s difficulties with alcohol are behind him. When queried about how he knew this, TA conceded that his view about the Applicant overcoming his difficulties with alcohol is only based on what the Applicant has told him.[63]
[63]Transcript, page 43, lines 33–45; page 44, lines 1–16.
The Applicant’s other cousins, MD and PBD, did not provide oral or written evidence for the hearing before us. The only reference within the evidence about the Applicant’s cousins is found in his statement where he refers to MD and PBD arriving in Australia with him and his brothers. We are unable to determine the strength and nature of any ties or relationship between the Applicant and his cousins- MD and PBD.
In relation to ‘social links generally’ the material discloses a letter which can safely be described as a rehabilitation and character reference.[64] This the earlier mentioned letter from BB, a representative from the Queensland African Communities Council (‘QACC’). That letter is dated 8 July 2022. BB was not called to give oral evidence to the hearing before us.
[64]Exhibit 5, pp DA14-DA15.
BB met the Applicant in October 2021 when he and others from the QACC started engaging and providing rehabilitation programs for members of the African community both in juvenile detention centres and adult correctional centres in Queensland. Since then, QACC has undertaken a series of rehabilitation workshops and activities to help the Applicant transition back into the community.
With reference to the Applicant’s other family and social links to people in Australia who would be impacted by an adverse outcome for the Applicant, we are satisfied that those ties in Australia lead us to a finding that a moderate measure of weight should be allocated to the totality of the strength, nature and duration of the Applicant’s ties to Australia on that basis. We make this finding subject to the proviso that the people representing those other family and social ties are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
Paragraph 8.3(4): Consideration of the nature of the Applicant’s ties to the Australian community having regard to the length of time he has resided here
This component of Primary Consideration 3 requires us to look at the length of time the Applicant has resided in the Australian community and to take account of the following three elements:
(i)whether the Applicant has been ordinarily resident here during his formative years.[65] The Applicant arrived here in October 2004 when he was aged 22. He is now almost aged 41 and has spent approximately 19 years of his life in this country. We are therefore not satisfied that this Applicant has ordinarily been a resident here during his formative years. This component of paragraph 8.3(4) of the Direction does not assist the Applicant;
(ii)whether the Applicant has positively contributed to the Australian community during his time here.[66] As mentioned, the Applicant has spent 46 percent of his life in this country. Notwithstanding his offending, he has an established history of employment. He was first employed as a meat worker in Toowoomba from 2010 to 2012. He then relocated to central Queensland where he was employed as a road worker from 2012 to 2013 before relocating to Brisbane in 2014 where he was again employed as a meat worker. It appears that he was unemployed for a period before he relocated to Mount Isa in 2016 where he was employed as a security officer. In 2017 he relocated to Darwin where he worked as a meat worker until he relocated back to Queensland in 2018. Accordingly, this component of paragraph 8.3(4) of the Direction affords ‘moderate’ weight to a finding that the Applicant’s ties to Australia are strong having regard to the nature and extent of his contributions during the almost 19 years he has spent here;
(iii)can the weight be allocable to the strength of the Applicant’s ties to Australia based on the length of time he has spent in the Australian community be lessened because (1) he did not spend his formative years here and (2) he began offending approximately three years after arriving here?[67] With reference to the first question, we have already found that he did not spend his formative years here. With reference to the second question, he arrived here as a 22-year-old and committed his first offence in this country approximately three years later. His commission of an offence three years after arriving here – in the context of the almost two decades he has sent here – should not be found to have been committed “soon after arriving in Australia”. The Applicant has not spent his formative years here and we have not found that he began offending soon after coming here. Even though the Applicant did not spend his formative years here, we do not think this paragraph 8.3(4)(a)(iii) impugns the strength, nature and duration of the Applicant’s ties to Australia.
[65]Paragraph 8.3(4)(a)(i) of the Direction.
[66]Paragraph 8.3(4)(a)(ii) of the Direction.
[67]Paragraph 8.3(4)(a)(iii) of the Direction.
We are therefore of the view (and we find) that as a result of our analysis of the evidence around sub-paragraphs 8.3(4)(a)(i)-(iii) of the Direction, the Applicant’s ties to the Australian community carry a certain, but not determinative, level of weight towards a favourable finding about the extent of the Applicant’s ties to this country.
Conclusion: Primary Consideration 3
We have referred to the four relevant components of this Primary Consideration 3. Our analysis of the material leads us to a finding that this Primary Consideration 3 confers a certain, but not determinative, level of weight in favour of this Tribunal setting aside the Decision Under Review.[68]
[68]Pursuant to s 501CA(4)(b)(ii) of the Act.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.4(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision.
Paragraphs 8.4(2) and 8.4(3) of the Direction respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Direction sets out a number of factors at paragraph 8.4(4) to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
(a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Identification of the relevant minor children
At the hearing, we sought to establish a definitive list of children falling within the auspices of this Primary Consideration 4. As best as we understood the evidence, these are the relevant children:
Children of brother JA:
·Child AA (a daughter) born in December 2010;
·Child AJ (a son) born in March 2014; and
·Child AMA (a daughter) born in June 2018.
Summary of the evidence around the relevant minor children
The Applicant concedes that all the three children are cared for by their parents, being the Applicant’s brother JA and his wife, RA. He also concedes that the relationship between him and the children is not one which is of a parental nature, but rather as him being their uncle. However, he said that his relationship with the children is close, especially his nephew Child AJ. That close relationship arose from him living in the same house as the children and sharing some parental responsibility. The Applicant therefore suggests he has played a meaningful role in their lives and any ongoing separation from them would have a detrimental impact on the children.
The evidence shows that the youngest child, Child AMA was only seven months old when the Applicant went into custody. Therefore her knowledge of and connection to him is based on the telephone calls he makes to the family.
In respect to the period prior to his convictions for the rape offences, the Applicant was asked in cross-examination whether he saw the children all the time or just on their birthdays. He replied that he saw the children every time when they needed him, and he gave them gifts for their birthdays.[69] He also said that he kept in contact with them during the period he has been in custody and immigration detention, but they had not visited him because they had not been triple-vaccinated for COVID, but that they did talk on the telephone when he called his brother JA.[70] It was then put to him that if he returned to South Sudan, he would still be able to communicate (albeit by non-in-person means) with the children. He replied that there is no way he can get in contact with them if he was sent back South Sudan.[71] He added that he has to stay with them here because if he went too far away from them, then they will forget him.
[69]Transcript, p 14, lines 32-35.
[70]Ibid p 14, lines 36-45; p 15 lines 1-7.
[71]Ibid, p 15, lines 17-36.
Application of factors at 8.4(4) of the Direction to the children of brother JA
Sub-paragraph (a): any nature and duration of a relationship between the Applicant and the above-identified relevant minor children is significantly impacted by the reality that he has been physically absent from their lives for a period of almost five years. The youngest child, Child AMA was only aged about seven months when he went into custody and therefore she would not have known him at that time. Whatever relationship the Applicant may have with the minor children of his brother JA, it is certainly non-parental in nature and, without question, there have been other very long periods of absence of the Applicant from their lives when he worked in other localities within Queensland and interstate. This sub-paragraph carries only moderate weight in favour of this Tribunal revoking the mandatory cancellation of the Applicant’s Visa.
Sub-paragraph (b): to our minds, the evidence points to the Applicant playing at best an uncle-type role in the lives of his brother JA’s children. There is no evidence that he has previously played any kind of positive parental role in their lives. He may have given guidance and advice to his nephew Child AJ, but he has not acted in any kind of parental capacity either towards that child or any other of the other two children. This sub-paragraph carries only moderate weight in favour of the Applicant.
Sub-paragraph (c): we do not know anything about the impact of the Applicant’s past conduct, nor any potential impact from future conduct, upon any of his brother JA’s children. It suffices to say that there is nothing in the evidence of JA which points towards any adverse impact on the three relevant children. This sub-paragraph can be put to one side and rendered neutral for present purposes.
Sub-paragraph (d): there is little or no evidence about the extent and nature of the communications between the Applicant and the three minor children of his brother, JA. The evidence of both the Applicant and his brother JA was that the Applicant often telephoned JA from within prison and more recently from the immigration detention centre. It was during those telephone calls to his brother that the telephone would be handed to JA’s children and the children would talk to the Applicant. There is nothing in the evidence of the Applicant or JA which suggests that the length of those conversations or the substance of the telephone calls is anything else other than an opportunity for the children to say hello to their uncle. This sub-paragraph carries only moderate weight in favour of the Applicant.
Sub-paragraph (e): there is nothing to cavil with the finding that the Applicant’s brother JA and his wife RA primarily parent and otherwise fulfill a parental role in the lives of the three subject children. This sub-paragraph can be put to one side and rendered neutral for present purposes.
Sub-paragraph (f): we do not know the views of any of JA’s children regarding any impact on them arising from the Applicant’s physical absence from their lives for nearly five years. Nor do we know anything from them about any future impact they would experience if the Applicant was unsuccessful in this instant proceeding. This sub-paragraph can be put to one side and rendered neutral for present purposes.
Sub-paragraph (g): there is no evidence before us that any of these three minor children are at risk of being subject to, or exposed to, any family violence perpetrated by this Applicant. There is likewise no evidence of their abuse or neglect in any of the ways contemplated by this sub-paragraph which is not relevant to the instant determination.
Sub-paragraph (h): there is no evidence that any of the three minor children have been subjected to any of the traumatic circumstances contemplated by this sub-paragraph. It is not relevant to the instant determination.
Conclusion: Primary Consideration 4
Overall, the cumulative best interests of the three relevant minor children, when analysed through the lens of an application of the relevant sub-paragraphs of 8.4(4) of the Direction, lead us to a finding that this Primary Consideration 4 carries a certain, but not determinative, level of weight in favour of this Tribunal setting aside the Decision Under Review[72]
[72]Pursuant to s 501CA(4)(b)(ii) of the Act.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. The Direction further explains:
‘This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated [in paragraph 8.5(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case’. [73]
[73]Paragraph 8.5(4) of the Direction. Paragraph 8.5(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.
Paragraph 8.5 of the Direction states:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
a) acts of family violence; or
b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
f) worker exploitation.
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
This Applicant has breached the Australian community’s expectations by his record of criminal offending in this country which is evidenced by his breaches of Australian laws culminating in his convictions and imprisonment for two counts of rape. Therefore, the Australian community, ‘as a norm’ expects the Australian Government not to allow him to remain in Australia.
The Direction also states that visa cancellation or refusal, or non-revocation of a mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:[74]
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
[74]Paragraph 8.5(2) of the Direction.
The Applicant has committed two serious violent offences against a woman which falls squarely within the auspices of paragraph 8.5(2)(c) of the Direction. There seems little to cavil with the proposition (and finding) that given this offending, the Australian community “as a norm” expects the Australian Government can and should cancel this Applicant’s previously held visa and refuse him any subsequent visas.
The remaining question is whether there are any factors which modify the Australian community’s expectations. This question is informed by the principles in paragraphs 5.2(4), (5) and (6) of the Direction. In summary these are:
(a)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa;
(b)the Australian community has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time;[75]
(c)Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age;[76]
(d)the community’s level of tolerance will rise based on the length of time a non-citizen has spent in this country and, in particular, whether their formative years were spent here;
(e)the nature of a non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify a visa outcome that is not adverse to the non-citizen;[77] and
(f)if a non-citizen’s unlawful conduct is inherently of the type captured by any of the categories stipulated in paragraph 8.5(2)(a)-(f)(inclusive) of the Direction, then even strong countervailing considerations may not assist a non-citizen even where the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
[75]Paragraph 5.2(4) of the Direction.
[76]Ibid.
[77]Paragraph 5.2(5) of the Direction.
In relation to sub-paragraph (a) of the immediately preceding paragraph [131], the term, ‘limited stay visa’ is not defined in the Act. Here, the Applicant in this case held a Class XB Subclass 202 Global Special Humanitarian visa until it was cancelled on 25 February 2020. This Visa allows the visa holder to ‘travel’ and ‘enter’ Australia within five years of it being granted.,[78].As the Visa does not specify a limited amount of time after which the Applicant was required to depart from Australia, it cannot be classified as a limited stay visa.[79] Consequently, this sub-paragraph (a) is not applicable to the Applicant.
[78]Regulation 202.511 of the Migration Regulations 1994 (Cth).
[79]Walker v Minister for Home Affairs (2020) 171 ALD 37 [28]-[29].
In relation to sub-paragraph (b) of the abovementioned paragraph [131], the Applicant has resided in Australia from October 2004 when he was 22 years old. He is currently aged 40 years. He has a demonstrated work history in Australia between 2010 to 2018 and has not fathered children in this country. That said, whatever participation in, and contribution to, the Australian community he may have made during his time here cannot be safely found to have been, ‘short’ even though it has not, by any measure, been substantial. Therefore, the Australian community’s tolerance is not lowered by this part of the principles in 5.2(4) of the Direction.
In relation to sub-paragraph (c) of the abovementioned paragraph [131], we repeat that the Applicant resided in Australia from the age of 22 and he is currently 40 years of age. He has resided in Australia since October 2004. He has spent nearly half (about 46%) of his life in this country. This is not ‘most of’ his life. This means that the Australian community has a lower than usual tolerance of criminal, or other serious conduct by this Applicant.
In relation to sub-paragraph (d) of the preceding paragraph [131], we are of the view that the length of time the Applicant has spent here does not facilitate a raising of the community’s level of tolerance for his offending. As we have found earlier, he has not spent his formative years in this country but has spent just less than half of his life here.
In relation to sub-paragraph (e) of the abovementioned paragraph [131], we are not of the view that the balancing exercise between (on the one hand) the harm that would be caused by the Applicant re-committing his ‘very serious offending’[80] of the same type and magnitude already committed and (on the other hand), whatever countervailing considerations may work in his favour, is necessarily a principle referable to the community’s expectations for present purposes. This is because we are of the view that the Applicant’s ‘very serious offending’ conduct and the resulting harm from that conduct (thus far) has been of a sufficient magnitude such as to dispel any applicable countervailing considerations.
[80]In particular, his offending culminating in his convictions for two counts of rape in January 2020.
In relation to sub-paragraph (f) of the abovementioned paragraph [131], we have found that the some of the Applicant’s offending is inherently of the type captured by, specifically, sub-paragraphs 8.5(2)(d). Given that particular finding, we are of the view that even strong countervailing considerations in his favour may not assist the Applicant. Therefore, our finding must be that the nature of his offending effectively precludes any countervailing considerations working in his favour.
Having regard to the above discussion around sub-paragraphs (a)–(f) (inclusive) referenced in paragraph [131], we are of the view that the Australian community’s expectations are not modified such that the community does not have a higher than usual tolerance of criminal conduct by the Applicant. Because of the (overall) very serious nature of his offending, we are of the view (and we find) that the Australian community expects the government can and should cancel the Applicant’ Visa to remain here.[81]
Conclusion: Primary Consideration 5
[81]Paragraph 5.2(3) of the Direction.
We are of the view that this Primary Consideration 5 confers a very heavy level of weight in favour of this Tribunal affirming the Decision Under Review.[82]
OTHER CONSIDERATIONS
Other Consideration (a): Legal consequences of the decision
[82]Pursuant to s 501CA(4)(b)(ii) of the Act.
The Applicant’s ability to apply for a Protection visa
The Applicant has never held a Protection visa and is thus not precluded from applying for such a visa. At the hearing before us, the question squarely put to the Applicant was one of whether he would apply for a Protection visa if unsuccessful in the instant application. He responded in the affirmative.[83] We are therefore satisfied that if unsuccessful in this proceeding the Applicant could and would lodge a Protection visa application. Such application would be considered by the Respondent’s Department. If the Department refuses the grant of a Protection visa, the Applicant would be entitled to merits review of that refusal decision. It can be safely found that the lodgement of an application for a Protection visa would be a likely consequence if the Applicant were not successful in this application.
[83]Transcript, p 16, lines 7-31.
We are particularly mindful of the recent Federal Court decision in CRRN v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1050 (‘CRRN’). In CRRN, the Court[84]was dealing with a decision of this Tribunal (differently constituted) in which the Tribunal sought to temper any weight allocable to the non-citizen’s prospects of indefinite detention on the basis of that particular non-citizen’s capacity to apply for a Protection visa. The Court said:
‘I accept the submission on behalf of the Minister that the ultimate point sought to be made by the Tribunal with regard to its first reason to temper the weight of the indefinite detention consideration was that the applicant is not prevented from applying for a protection visa (at [228]). That conclusion is uncontroversial. However, it fails to address the applicant’s real point in relation to it, which was accepted by the Minister. That is that in circumstances where his visa was cancelled for failure to pass the character test and that cancellation was not revoked by the Tribunal, which is the premise upon which the indefinite detention consideration was being addressed, there was no realistic possibility that he would be granted a protection visa. Failure to engage with that submission is itself a failure to perform the statutory task, but perhaps more to the point in light of it being common ground that there was no realistic possibility that the applicant would be granted a protection visa, is that the fact that he could apply for such a visa could not rationally temper the weight to be attached to the indefinite detention consideration; it is only a successful application that could bring an end to the applicant’s detention.’[85]
[84]Per Stewart J.
[85]CRRN [49]. Note to reader: the words in bold (‘realistic’, ‘apply’ and ‘successful’) appear in italics in the original.
The Applicant makes two submissions. They are:
‘There is currently not enough information before the Tribunal to ascertain clearly whether or not the Applicant is the subject of a protection finding under s 36A [of the Migration Act] for the purposes of 197C(4). The Applicant’s Subclass 202 application was processed in 2004, well before the recent enactment of section 36A of the Migration Act. ’[86]
and
‘…that it is possible for the Applicant to apply for a Subclass 866 protection visa, even if the cancellation decision is not set aside. However, the Applicant submits that he would likely be denied this protection visa on character grounds under
s 36(1C) because a Rape offence is a “particularly serious crime” as it involves at least the threat of actual violence and is punishable by imprisonment for a fixed term of up to 14 years. There is no realistic prospect that the Applicant will be granted another visa, whether Protection visa or otherwise.’[87]
[86]Exhibit 2 [77].
[87]Exhibit 2 [89].
The Respondent’s contention on the question of the Applicant’s prospects of obtaining a Protection visa is put in these terms:
‘Insofar as the applicant contends that “(t)here is no realistic prospect that the Applicant will be granted another visa, whether Protection visa or otherwise” given his criminal history (AS at [89]), this is pure speculation.’[88]
[88]Exhibit 4 [55].
We understand the totality of the two above-quoted submissions of the Applicant (paragraph [142]) to be that (on the Applicant’s case) there is no realistic possibility of him being granted a Protection visa. CRRN appears to stand for the proposition that a non-citizen’s mere capacity to apply for a Protection visa cannot be used as a means of tempering weight allocable to the prospect of that non-citizen remaining in indefinite detention. According to CRRN, the only tempering or ultimate impact on such a prospect is for the non-citizen to succeed in (or to have realistic prospect of) obtaining a Protection visa.
We will therefore not apply the Applicant’s right (and stated intention) to apply for a Protection visa as an element tempering any weight allocable to the consequences arising from him not succeeding in the instant proceeding. We are cautious not to make any definitive finding about the Applicant’s prospects of succeeding in any application for a Protection visa. However, for reasons explained in the above-quoted submissions put on behalf of the Applicant (paragraph [142]), it can be suggested that his application for a Protection visa may not have convincing prospects of success.
We therefore acknowledge that the Applicant’s unknown and speculative prospects of securing a Protection visa may result in him remaining in detention without a fixed end date.
Claimed fears of harm: applicable Law
It can also be found that in the material before us the Applicant has articulated certain claims to fear harm upon a return to South Sudan. Those claims indicate to us a potential for Australia’s non-refoulement obligations to possibly be engaged for the purposes of the instant decision. Prior to delving into an identification and assessment of those claims it is necessary to first review the law on the question of the extent to which this Tribunal is obligated to involve itself in such a process.
Plaintiff M1/2021
On 11 May 2022, the High Court of Australia – in its decision of M1/2021 v Minister for Home Affairs[89] (‘Plaintiff M1’) turned its mind to the question of whether a decision-maker can, ‘defer’ consideration of Australia’s non-refoulement obligations to a future date or event, such as if the Applicant were to apply for a Protection visa. Prevailing authority militated against any such deferral by a decision-maker even in circumstances where an Applicant were able to seek a Protection visa.[90]
[89] (2022) 400 ALR 417. Date of judgment: 11 May 2022.
[90]Ali v Minister for Home Affairs (2020) 278 FCR 627.
The approach formulated by the High Court in Plaintiff M1 was expressed thus:
‘Decision-makers' approach to non-refoulement
[28] Where the representations do not include, or the circumstances do not suggest, a non-refoulement claim, there is nothing in the text of s 501CA, or its subject matter, scope and purpose, that requires the Minister to take account of any non-refoulement obligations when deciding whether to revoke the cancellation of any visa that is not a protection visa.
[29] Where the representations do include, or the circumstances do suggest, a non-refoulement claim by reference to unenacted international non-refoulement obligations, that claim may be considered by the decisionmaker under s 501CA(4). But those obligations cannot be, and are not, mandatory relevant considerations under s 501CA(4) attracting judicial review for jurisdictional error – they are not part of Australia's domestic law.
[30] Where the representations do include, or the circumstances do suggest, a claim of non-refoulement under domestic law, again the claim may be considered by the decision-maker under s 501CA(4), but one available outcome for the decision-maker is to defer assessment of whether the former visa holder is owed those non-refoulement obligations on the basis that it is open to the former visa holder to apply for a protection visa.’
[Emphasis in original]
In Plaintiff M1, the plurality clarified that consideration of non-refoulement obligations can be deferred where a non-refoulement claim is made or arises on the facts and the person is able to make a valid application for a Protection visa. The decision settles the previously unsettled state of the law on this issue. It confirms that it is permissible for a merits-based decision-maker applying s 501CA(4) of the Act to determine whether the relevant discretion can be exercised to have regard to the fact that a person may make a Protection visa application.
That said, we interpret the plurality in Plaintiff M1 to nevertheless require a merits-based decision-maker’s reasons to demonstrate that non-refoulement claims have been read, identified, understood and evaluated, but does not require that decision-maker to undertake a Protection assessment before considering removal of a non-citizen from Australia. Thus, it may be necessary to take account of alleged or claimed facts underpinning such claims:
·where those alleged facts/claims are relied upon for establishing ‘another reason’ why the cancellation decision under s 501CA should be revoked; or
·where they are relied upon as any other matter relevant to the exercise of the discretion to cancel visas pursuant to s 501.
It may also be necessary to take account of claims that fall outside of the Protection visa framework such as, for example, claims of generalised violence, inadequate healthcare, homelessness, and harm that is not serious or significant.
For the avoidance of doubt, we have interpreted the Applicant’s position to be such that he is making representations that do include, and/or that the circumstances of this case do suggest, a claim of non-refoulement under Australia’s domestic law. We will therefore take account of the alleged facts or claims propounded by this Applicant as engaging non-refoulement obligations Australia may owe him.
The Applicant’s protection claims and what this Tribunal can do with them
The Applicant has spoken of concerns about his personal safety in the event of a removal and return to South Sudan. In Personal Circumstances Form (‘PCF’) he articulates a fear of what would happen to him if returned to South Sudan with the words ‘I will be killed on the spot’.[91] He articulates other problems he says he would face if returned to South Sudan with these words ‘I was captured twice by rebals [sic] to loot and kill villagers. I lost many family members.’ [92]
[91]Exhibit 1, p 55.
[92]Ibid.
We are cautious about accepting any contention put on behalf of the Applicant suggestive of any likelihood that a protection finding has, in some way, ‘impliedly’ been made about him by virtue of his being granted the Visa which is the subject of the Decision Under Review. Our caution derives from the provisions appearing at ss 197C(4) to (7) of the Act which prescribe the circumstances pursuant to which a protection finding is taken to have been made. The difficulty for the Applicant is that each of those circumstances require him to have first satisfied the criteria for the grant of a Protection visa pursuant to s 36 of the Act. No such assessment has yet been made in respect of this Applicant.
We therefore conclude (and find) that the Applicant has never held a Protection visa. We further conclude (and find) that he is able to apply for such a visa and because this option is open to him, it is likewise safe to conclude (and find) that this Tribunal’s decision may result in his removal to South Sudan. He would not be liable for removal during the currency of the ventilation and determination of his Protection visa application.
We are also cautious about accepting the Applicant’s contention to the effect that ‘There is no realistic prospect that the Applicant will be granted another visa, whether a Protection visa or otherwise’.[93] While the Applicant may harbour certain apprehensions about his prospects of successfully securing a Protection visa in circumstances where the Respondent is resisting the instant application for restoration of the Visa currently in contest,[94] the reality is that he is yet to ventilate an application for Protection visa.
[93]Exhibit 2, p 16 [89].
[94]MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35, [55]-[56] (per Wigney J).
This Tribunal’s assessment of the Applicant’s claim to fear harm
While we have accepted the scantly-put claims of the Applicant may indicate a possibility for the engagement of Australia’s non-refoulement obligations, we are
hard-pressed to identify or comprehend any convincing particularity or detail in those claims. There is little or nothing in the form of corroborative material before us to substantiate those claims.[95] We are of the view that any final finding about the extent to which the Applicant’s claims result in the engagement (or otherwise) of Australia’s non-refoulement obligations can only occur after a fulsome assessment of those claims as usually occurs in any application for a Protection visa.[95]As noted earlier, the Applicant’s SFIC tells us ‘There is currently not enough information before the Tribunal to ascertain clearly whether or not the Applicant is the subject of a protection finding…’.
Having regard to the state of the law[96] and the scant nature of the evidence before us, we are cautious about making any definitive findings about the extent to which the Applicant’s claims may engage any non-refoulement obligations Australia may owe him.
[96]Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17.
Is the Applicant stateless?
The basic contention of the Applicant is that he is stateless on the basis that South Sudan may not permit him to return to that country and that, as a result, he faces the prospect of indefinite detention.[97] We will deal with the statelessness issue first. Our understanding of the evidence is that it is strongly suggestive of a finding that the Applicant is, in fact, a citizen of South Sudan. This is so for the following reasons (as identified by the Respondent)[98] which we now adopt:
[97]Exhibit 1, p 62 [33]-[36].
[98]Exhibit 4, p 15 [63].
(i)the South Sudanese Nationality Act 2011 appears in the material.[99] The operative provision is section 8. It provides as follows:
8. Eligibility Requirements.
(1) A person born before or after this Act has entered into force shall be considered a South Sudanese National by birth if such person meets any of the following requirements—
(a) any Parents, grandparents or great-grandparents of such a person, on the male or female line, were born in South Sudan; or
(b) such person belongs to one of the indigenous ethnic communities of South Sudan.
[Our emphasis]
(ii)two things arise from s 8 of the South Sudanese Nationality Act 2011. First, in his PCF the Applicant has declared that both his mother and father were citizens of South Sudan at the time of his birth.[100] He confirmed this in his oral evidence.[101] Second, he confirmed in his PCF that he is an active participant in the Dinka Community Association for South Sudan[102] in Australia. In his oral evidence he confirmed he is of Dinka ethnicity.[103] We thus infer that the Applicant is of Dinka ethnicity;
(iii)there is little or nothing to cavil with a finding that the Dinka, together with the Nuer, are the two largest ethnic groups in South Sudan and would safely fall under the auspices of s 8(1)(b) of the South Sudanese Nationality Act 2011;
(iv)there is material before the Tribunal suggestive that:
“…Article 8(1) of the South Sudanese Act, which provides that a person shall be considered a South Sudanese national by birth where, among several other grounds “such a person belongs to one of the indigenous ethnic communities of South Sudan.” The striking result of Article 8(1)(b) is that every Dinka and Nuer25 inside or outside South Sudan will automatically acquire South Sudanese citizenship by operation of law.”[104]
[99]Exhibit 3, pp 35-43.
[100]Exhibit 1, pp 43-44.
[101]Transcript p 16, lines 33-36.
[102]Exhibit 1, p 54.
[103]Transcript, p 16, lines 38-47.
[104]Exhibit 3, pp 59-60 (internal citations omitted).
Having regard to the above four enumerated factors, we arrive at the view (and finding) that the Applicant would be found to be a citizen of South Sudan.
Prolonged/ indefinite detention
We turn to the possibility of the Applicant being detained for a prolonged or indefinite period consequent upon the outcome of the instant application. It is necessary for this Tribunal to take into account any legal consequence arising from its decision relating to the Applicant’s visa. As already alluded to, one specific consequence of our decision could involve the Applicant’s prolonged or indefinite detention. We examine this consequence as part of our determination of weight allocable to this Other Consideration (a).[105] As we have already said, it is premature to make any definitive finding about the Applicant’s prospects of prolonged / indefinite detention at this stage. That said, we will, out of an abundance of caution deal with this item because it may arise consequent upon three scenarios. First, it may arise if we are wrong about our findings on the issue of the Applicant’s claim about statelessness; second, it may arise during the currency of any application by the Applicant for a Protection visa; and third, it may arise as a consequence of the Applicant’s failure to secure a Protection visa.
[105]VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921 at [16].
Section 189 of the Act provides that a non-revocation outcome (in relation to the Visa) would result in the Applicant’s continued detention until his removal. Therefore, it can be accepted that a non-revocation outcome in this application could very well extend the Applicant’s time in an immigration detention facility.
Were this Tribunal to affirm the non-revocation decision under review and the Applicant failed to secure a Protection visa,[106] the likely reality will be that he will remain in immigration detention until another event ends that detention. In terms of such an ‘event’, there are three possible alternatives to either the Applicant’s refoulement or his ongoing detention. They are:
·removal to another country; or
·the Minister exercising their personal discretion under s 195A of the Act to grant the Applicant, ‘another visa’; or
·the Minister exercising their personal discretion under s 197AB of the Act to make a residence determination enabling the Applicant to reside at a specified place in the community, subject to appropriate conditions.
[106]Or he is otherwise found to be stateless.
While it may be found that (1) a possible outcome for the Applicant from this application is that he will be detained for a period with no chronologically fixed end point and (2) this prospect of prolonged or indefinite detention may weigh in favour of revocation, it is important to properly conduct the weighing exercise referrable to this particular element. Mindful of our above discussion of CRRN, in terms of weight allocable to the element of indefinite detention, it would not be safe to utilise the Applicant’s mere right to apply for a Protection visa as a means of tempering weight allocable to indefinite detention. Unknown and speculative though his prospects of securing a Protection visa may be, we are satisfied (and find) that this element of indefinite detention is of a strong level of weight in favour of this Tribunal setting aside the Decision Under Review and restoring the Applicant’s visa status to remain here.
Conclusion of Other Consideration (a) : Legal consequences of the decision
We have found (1) the evidence is inconclusive about the extent to which the Applicant’s claims may engage any non-refoulement obligations Australia may owe him; (2) that he is not stateless and is, in fact, a citizen of South Sudan; and (3) the element of indefinite detention represents a strong level of weight in the Applicant’s favour. Overall, and with regard to these three components, we allocate a strong level of weight to this Other Consideration (a) in favour of setting aside the Decision Under Review.
Other Consideration (b): Extent of impediments if removed
This other consideration requires a decision-maker to consider the impediments a non-citizen is likely to face in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country) if they are removed from Australia to their home country. In doing so, a decision-maker is required to take into account:
·the non-citizen’s age and health;
·whether there are substantial language or cultural barriers; and
·any social, medical and/or economic support available to them in that country.
Paragraph 9.2(1)(a): the Applicant is of 40 years of age and in his PCF he notes that he is ‘suffering from reflux-build up acid in stomach since 2019. I have been taking medication since.’[107] He refers to taking ‘pantoprazole 40mg’[108] for the condition. Any contention by the Applicant that he will not be able to source this medication in South Sudan was, to our minds, adequately addressed by the Respondent who notes that:
‘70 According to the 2016 DFAT report on South Sudan, South Sudan’s population has extremely poor access to health care. However, according to Volza's Sudan Pantoprazole 40mg Buyers & importers directory, there are 38 active Pantoprazole 40mg Importers in Sudan Importing from 23 suppliers.’[109]
[107]Exhibit 1, p 54.
[108]Ibid.
[109]Exhibit 4, p 16 [70].
There is a suggestion in the Applicant’s material that a Psychologist has opined that ‘there are indications of post-traumatic distress, unresolved bereavement grief, and problem drinking….he has a serious psychological disorder masked by alcohol misuse that really needs to be addressed by trauma experts.’[110] That expert was not called to give evidence at the hearing before us and there is no corroborative evidence from ‘trauma experts’ about the nature and extent of how these ‘indications’ may have now crystallised into some kind of diagnosed condition.
[110]Exhibit 2, p 19 [113].
To whatever extent the Applicant may now be said to carry such psychological symptoms, it can be found that were he removed to South Sudan there is a likelihood he will not be able to access necessary or adequate trauma counselling. The Department of Foreign Affairs and Trade (‘DFAT’) report carries a narrative of South Sudan having extremely poor access to healthcare and that South Sudan otherwise ranks 169th out of a total of 187 countries on the United Nations Development Programme’s 2015 Human Development Index. Males in South Sudan have a life expectancy of 54.7 years. For females it is 56.7 years.
Any weight allocable to the Applicant on the basis of how he will be impacted by any difficulty in accessing mental healthcare services in South Sudan must be moderated by a finding that the evidence of such symptomology before the Tribunal is both scant and unconvincing. The highest the evidence goes is that the Applicant is displaying ‘indications’ of such symptoms and that those symptoms need to be addressed by ‘trauma experts’. There is no such expert evidence before us.
Paragraph 9.2(1)(b): there is little or nothing before us about any substantial language or cultural barriers impeding the Applicant’s resettlement in South Sudan. He lived there before coming to Australia. While perhaps not intimately familiar with the cultural norms of South Sudan, they would not be entirely foreign to him because (1) he has maintained a cultural connection with the Dinka Community Association for South Sudan in Australia; and (2) English is the official language of South Sudan. There is little or nothing to suggest that the Applicant has more than a working knowledge or grasp of English.
Paragraph 9.2(1)(c): this sub-paragraph looks for any social, medical and/or economic support available to the Applicant in South Sudan. Evidence given by the Applicant’s brothers at the hearing before us confirmed that they could, and most likely would, continue to have regular contact with him were he returned to South Sudan. They further confirmed that they would, to extent they were so able, provide him with financial assistance in the event of his return to South Sudan. That said, this particular sub-paragraph does attract weight in favour of the Applicant because the DFAT report makes it plain that any medical and/ or economic support (in the form of government benefits) will be well below than what would be available to him in Australia. It can likewise be accepted that the Applicant would lack social, medical and economic support if returned to South Sudan.
Conclusion of Other Consideration (b): Extent of impediments if removed
We are of the view that the state of the evidence referrable to sub-paragraphs 9.2(1)(a) and (c) of the Direction, a moderate level of weight is allocable to a finding that this Tribunal should set aside the Decision Under Review.
Other Consideration (c): Impact on victims
In their respective written submissions,[111] the parties are ad idem that this Other Consideration is not relevant to the instant determination and that it should carry neutral weight. Their respective positions did not change during oral argument. We agree with the respective positions of the parties in relation to Other Consideration (c).
[111]Exhibit 2, p 19 [116]; Exhibit 4, p 17 [73].
Other Consideration (d): Impact on Australian business interests
In their respective written submissions,[112] the parties are ad idem that this Other Consideration is not relevant to the instant determination and that it should carry neutral weight. Their respective positions did not change during oral argument. We agree with the respective positions of the parties in relation to Other Consideration (d).
[112]Exhibit 2, p 20 [117]; Exhibit 4, p 17 [74].
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)legal consequences of the decision: is of strong level of weight in favour of setting aside the Decision Under Review;
(b)extent of impediments if removed: is of moderate weight in favour of setting aside the Decision Under Review;
(c)impact on victims: is of neutral weight;
(d)impact on Australian business interests: is of neutral weight.
CONCLUSION
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the power to revoke the mandatory cancellation of the Applicant’s Visa: either the Applicant must be found to pass the character test; and if not, we must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted previously in these Reasons, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the power afforded by s 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the Applicant’s Visa, we have had regard to the considerations referred to in the Direction. we find as follows:
·Primary Consideration 1: carries a very heavy level of weight in affirming the Decision Under Review;
·Primary Consideration 2: is of neutral weight;
·Primary Consideration 3: carries a certain but not determinative weight in favour of setting aside the Decision Under Review;
·Primary Consideration 4: carries a certain but not determinative weight in favour of setting aside the Decision Under Review;
·Primary Consideration 5: carries a very heavy level of weight in favour of affirming the Decision Under Review.
We have outlined the weight attributable to each of the Other Considerations. We are of the view (and we find) that the combined weights we have allocated to Primary Considerations 1 and 5 are sufficient to outweigh the combined weights we have allocated to Primary Considerations 3 and 4 and Other Considerations (a) and (b).
A holistic application of the considerations in the Direction therefore militates in favour of this Tribunal finding that there is not another reason to revoke the mandatory cancellation of the Applicant’s Visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision dated 1 June 2023 made by a delegate of the Respondent.
I certify that the preceding 182 (one hundred and eighty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis and Senior Member Wayne Pennell.
..............[SGD]..................
Associate
Dated: 21 September 2023
Dates of hearing: 14 and 15 August 2023 Solicitor for the Applicant: Ms Jennifer Samuta (Director & Principal)
Samuta McComber LawyersSolicitor for the Respondent:
Ms Cody Allen (Associate)
Sparke Helmore Lawyers
ANNEXURE A- EXHIBIT REGISTER
EXHIBIT
DESCRIPTION OF EVIDENCE
DATE OF DOCUMENT
DATE RECEIVED
1
Section 501G documents
(G1-G26; paged 1- 125)
Various
26 June 2023
2
Applicant’s Statement of Facts, Issues and Contentions (1-20 pages)
20 July 2023
20 July 2023
3
Respondent’s Tender Bundle
(TB1-TB10; paged 1 -125)
Various
3 August 2023
4
Respondent’s Statement of Facts Issues and Contentions (paged 1-17)
3 August 2023
3 August 2023
5
Applicant’s Tender Bundle (paged DA1-DA37)
Various
9 August 2023
0
10
0