Akok and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2023] AATA 4881

Akok and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4881 (16 November 2023)

Division:                  GENERAL DIVISION

File Number:           2023/6378

Re:  Ngor Madut Akok

APPLICANT

And  Minister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:                  Dr Stewart Fenwick, Senior Member

Date:  16 November 2023

Place:  Melbourne

The decision dated 23 August 2023 not to revoke the mandatory cancellation of the Applicant’s Global Humanitarian (Class XB) (Subclass 202) visa is set aside and substituted with the decision that there is another reason why the mandatory cancellation should be revoked.

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

Dr Stewart Fenwick, Senior Member

Catchwords

MIGRATION – mandatory cancellation of visa – national of South Sudan – Global Humanitarian (Class XB) (Subclass 202) visa – failure to pass character test – violent offending – family violence conduct – diverse other offending – whether another reason cancellation should be revoked – consideration of Ministerial Direction No. 99 – mental health condition considered – decision set aside and substituted

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Migration Act 1958 (Cth)

Cases

CKL21 v Minister for Home Affairs [2022] FCAFC 70 FYBR v Minister for Home Affairs [2019] FCAFC 185

Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396

Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22

NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCATrans 154 Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17

TXFB and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 1142 QHRY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 827

Secondary Materials

Direction No. 99 — Migration Act 1958 — Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Dr Stewart Fenwick, Senior Member 16 November 2023

BACKGROUND

1.Mr Akok applied to the Tribunal on 30 August 2023 for review of a decision of a delegate of the Minister administering the Migration Act 1958 (the Act) on 23 August 2023 not to revoke the mandatory cancellation of the Applicant’s Global Humanitarian (Class XB) (Subclass 202) visa.

2.Mr Akok’s visa had previously been cancelled on what is known as ‘character grounds’. That is, under s 501(3A), the Minister must cancel a person’s visa if they have a ‘substantial criminal record’ and are serving a sentence of imprisonment. Mr Akok made written representations when requesting that this decision be revoked, that is, for the decision to be reversed. It is the refusal of this request that is the subject of this application before the Tribunal.

3.Mr Akok was born in Khartoum, Sudan, in October 1999 and spent a number of years living in Egypt with his mother and siblings. His father was killed as a result of the conflict in his country of birth, and his mother subsequently had children by two further men who did not remain with her. Mr Akok arrived in Australia with his mother and three siblings in March 2007 and two other siblings arrived separately. The Applicant has an older brother and sister, a twin sister, and two younger brothers. The Applicant also has a young son.

4.The Applicant’s substantial criminal record arose because he was convicted and sentenced to two and a half years’ prison in June 2021 for an assault committed against a friend in September 2020. The incident caused serious injury to the victim and left him permanently disabled. Mr Akok has a record of diverse other offending, and has received convictions in numerous court appearances between 2017 and 2021.

5.Mr Akok received assistance with his initial revocation request, and with preparation for the Tribunal hearing, but was not formally represented. He lodged a Statement of Facts, Issues and Contentions (ASFIC) together with: a 2023 report of the Commonwealth Ombudsman ‘Monitoring Commonwealth Places of Detention’, and associated Commonwealth agency responses; correspondence from Mr Stefan Parsons, counsellor at Foundation House, dated 26 October 2023; and, a signed statement of Mr Akok, dated 18 October 2023, with a photograph of the Applicant with his son.

6.The Respondent lodged a SFIC (RSFIC), documents pursuant to s 500(6F) of the Act (G) and Supplementary G documents (SG). The SG documents comprise material provided under summons from justice sector agencies.

7.Mr Akok gave evidence at the hearing and evidence was also provided by his sister, Ms Ajong, his mother, Ms Ayii, and a family friend, Mr Deng. Assistance was provided by an interpreter in the Dinka language for witnesses other than Mr Akok.

8.A statement from Ms Ayii was not lodged in this matter but I determined that there was an adequate basis to receive her evidence due to references made to her interests in both the representations made by the Applicant at the initial revocation stage (G11/I) and in the statement of Ms Ajong.

LEGISLATION

9.The Tribunal operates under the Administrative Appeals Tribunal Act 1975 (the AAT Act). Section 25 of the AAT Act allows the Tribunal to conduct review of decision made under other pieces of Commonwealth legislation, including the original decision made concerning Mr Akok. Under s 43(1) of the AAT Act, when making a decision, the Tribunal may exercise all of the powers of the original decision maker. The Tribunal must review the merits of the matter under review and come to the correct or preferable decision.

10.Visa cancellation on character grounds is established in s 501 of the (Migration) Act. Under s 501(3A)(a)(i) the Minister must cancel a visa if satisfied a person has a substantial criminal record. This requirement is provided for in s 501(6)(a), and a substantial criminal record comprised of a sentence to a term of imprisonment of 12 months or more is provided for in s 501(7)(c).

11.The power to revoke (or reverse) this mandatory cancellation is found in s 501CA of the Act. The mandatory cancellation may be revoked if a person either passes the character test, or the Minister is satisfied ‘that there is another reason why the original decision should be revoked’ (s 501CA(4)(b)).

12.A Direction has been made under s 499 of the Act that provides guidance a decision-maker must take into account when considering revocation under s 501CA. This document is known as Direction No. 99, issued on 23 January 2023, which came into effect on 3 March

2023 (the Direction). Part 2 of the Direction sets out ‘primary’ and ‘other’ considerations that must be considered, and each one is accompanied by specific factors that inform the making of a decision.

13.Part 1 of the Direction includes a Preamble, that identifies Objectives and Principles. The Principles (5.2) provide the framework for decision making and are as follows:

(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 measurable 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 measurable risk of causing physical harm to the Australian community.

ISSUES

14.The first issue for consideration is whether Mr Akok fails the character test. I am satisfied from the convictions disclosed in the national police report lodged in this matter (G3, A) that he has been sentenced to a term of imprisonment of 12 months or more. Mr Akok therefore has a substantial criminal record.

15.I must now consider whether the correct or preferable decision is that there is another reason why the original decision should be revoked. I will set out below my considerations, identified by reference to the factors set out in Direction 99. I am not confined to considering these factors, but no submissions have been made indicating that some other relevant factor exists that might form part of my reasoning.

PRIMARY CONSIDERATIONS

Protection of the Australian community

16.The Direction requires me to keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens (8.1(1)). I must have particular regard to the principle that remaining in Australia is a privilege given in the expectation that non-citizens are law abiding, respect important institutions and will not cause or threaten harm to individuals or the Australian community.

17.This primary consideration also requires me to consider two specific elements: the nature and seriousness of a non-citizen’s conduct to date; and, the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct (8.1(2)(a)-(b)).

Nature and seriousness of conduct to date

18.Mr Akok’s record of convictions is complex due in part to the combination of youth offending, adult criminal offending, and repeat appearances for breach offences. Some apparent gaps in the material produced under summons makes it difficult to fully correlate conduct with court appearances, particularly for alleged family violence conduct.

19.In summary, I note the following:

(a)convictions as an adult offender on eleven separate charges for violence including recklessly cause serious injury, assault in company, and assault emergency worker on duty from court appearances in 2021, 2019, and 2018;

(b)convictions between 2017 and 2021 for in excess of twenty property offences including robbery, theft, criminal damage and shopstealing;

(c)a number of convictions for conduct offences including resisting an emergency worker, public drunkenness and acting prejudicial to the security/good order/management of a jail;

(d)convictions on twenty occasions for breach of conditions imposed arising from a substantial number of charges at prior court appearances; and

(e)four convictions for contravention of family violence intervention orders.

20.Prior to the age of 18, Mr Akok had a number of matters adjourned without conviction and he appears to have been first convicted as an adult in December 2017 for contravention of family violence intervention orders and criminal damage, but the matter was adjourned for 12 months with no other outcome recorded. In the same month he was convicted on a youth supervision order for nine months. This conviction arose from a wide range of charges including for violence, contravention of a family violence intervention order, traffic, property and conduct offences.

21.Mr Akok had a number of convictions adjourned in 2018, and in 2019 was convicted and discharged for other offending. Later in 2019 the Applicant received community corrections orders and an order for unpaid community work. His first term of imprisonment was also imposed in September 2019 being 50 days aggregate for diverse offending.

22.In 2020, Mr Akok was sentenced on several occasion to pay fines and also received further sentences of imprisonment ranging from seven days, to several months. A number of these outcomes arose from breach of prior conditions including for violent offending. Mr Akok also received a community corrections order of 15 months and unpaid community work in respect of charges for unlawful assault and contravention of a family violence intervention order.

23.In 2021, Mr Akok was sentenced for the offending that led to his visa cancellation, which I will address separately. He was also sentenced at a further court appearance to imprisonment of four months aggregate for a number of different offences.

24.I summarise briefly the remarks of the sentencing judge in the County Court (G4/B) at a sentencing hearing in June 2021:

(a)Mr Akok plead guilty to one charge of recklessly causing serious injury which carries a maximum penalty of 15 years imprisonment, and to one charge of commit an indictable offence while on bail;

(b)in September 2020 when aged 20, Mr Akok made an unprovoked attack on a 34 year old man at a park in which he struck the victim a number of times in the head, causing the serious injury, and continued to attack the victim until told to stop by another person;

(c)the victim underwent surgery twice, suffered a life-threatening bleed on the brain, spent time in intensive care and remained in hospital for brain injury rehabilitation for seven months;

(d)the assault had a profound impact on the victim whose ability to undertake basic tasks was significantly impacted due to a range of moderate to severe intellectual deficits, requiring the constant attendance of a carer and support through the NDIS;

(e)Mr Akok was arrested in the days following the incident and initially denied involvement, claiming that a girl may have gotten the victim drunk and left him for dead, but later plead guilty at an early stage in the proceeding;

(f)the judge took note of Mr Akok’s family background including mutually abusive behaviour of the Applicant and his mother, and periods spent in out-of-home accommodation, as well as his education to year 10 level and limited work experience;

(g)the offence represented a ‘considerable increase in the gravity’ of offending but otherwise was consistent with a criminal history of violence and breach of court orders;

(h)Mr Akok was sentenced as a youthful offender, and while substantial weight was to be placed on rehabilitation, the sentencing judge observed that rehabilitation would not easily be achieved;

(i)referring to a psychological report, the judge noted the need for ‘intensive assistance’ for a variety of problems, particularly drug and alcohol abuse, and described ‘some pessimism’ about Mr Akok’s prospects for rehabilitation, which were ‘guarded’, but would improve with continued abstinence, and educational opportunities;

(j)the judge took account of the ‘extreme disadvantage’ endured by Mr Akok and his exposure to violence, neglect, and alcohol abuse that had ‘clearly played a role in leading [him] to have substance abuse issues’, resulting in a background that somewhat reduced the moral culpability for the offending; and

(k)a diagnosis of depression was made by a psychologist, and ‘significant mental health challenges’ emerged in custody.

25.In an unsigned statutory declaration (G12/J), Mr Akok describes a background of racism and bullying in Egypt and Australia, time spent in residential housing in Australia, and his mother’s experience of alcoholism, from which she recovered in 2012 [2]. He also states that he does not remember the incident with the victim as he blacked out due to intoxication [5], [24]. He describes the victim as a good friend of Sudanese background he ‘met through drinking’ [7]. Mr Akok describes other offending as arising from peer pressure, and when taking alcohol and drugs, which he used to feel good and forget trauma [3], [8], [12].

26.Mr Akok addresses two instances of family violence which include breaking a wall, and striking a brother [9], and an argument with a sister about him playing loud music, an incident that got ‘out of control’ leading his mother to call the police [10].

27.In his 2023 statement, Mr Akok also refers to regular abuse in Egypt, including from his father, and abuse of a sexual nature [6]. He states that abuse experienced by his mother from his father impacted the Applicant’s younger years, and describes his mother’s issues with alcohol arising from her making and selling alcohol in order to support the family [8]. Mr Akok states that his mother locked him out of the home in Australia and that she subjected him to physical abuse [11].

28.Mr Akok states he was removed from the family home by the ‘government’ and placed in ‘foster care’ around the age of 15 [15]. He also states that at this time he turned to cannabis and alcohol and was invited to hang out in a park with a school friend [16]-[17]. Mr Akok considers that he was pressured into stealing, being the youngest, and that he was taken advantage of by his associates [21]. The Applicant again acknowledges multiple instances of family violence, all of which occurred when he was a child, and which he says arose because he could not handle his emotions, and was in a very bad place with mental health and alcohol [23].

29.In his evidence, Mr Akok described moving house on a number of occasions after arrival in Australia with his mother and a sister, before settling at his mother’s current address. He confirmed that his out-of-home care was provided at ‘a couple’ of group houses which were supervised by professional staff. Mr Akok stated that they tried to act like parents and sought to impose discipline, which he likened to them trying to have control over the residents. I understood him to say that he completed schooling to Year 10 and that he performed well in his education.

30.Mr Akok stated that he commenced taking medication for mental health issues in prison. He is currently taking an anti-psychotic medication which he said was because: ‘I hear voices and stuff, talking to me telling me stuff that shouldn’t be heard; stuff that gives me PTSD’. I also asked the Applicant about his drug use in the past and he stated that he commenced using marijuana in Year 8 and I understood him to indicate consistent, daily use. Mr Akok stated this was done in private and he consumed alcohol when with others.

31.Mr Akok was asked about his relationship with the mother of his son, and in particular about the size of the age difference between them at conception. This passage of evidence commenced with the Respondent’s representative and myself explaining that the Applicant could not be compelled to respond to a question where an answer may tend to incriminate him (pursuant to s 62(4), AAT Act).

32.The question was posed based upon information contained in a police record described as a family violence report dated in 2019 (SG3, 35). It asserts that the child’s mother experienced family violence, points to an age gap (in excess of the statutory minimum for consensual sex), and notes that the Applicant thought she was 17 years of age. It also records that the matter was not progressed.

33.Mr Akok denied family violence conduct and, essentially, maintained his position as to the woman’s age. He did this in the first instance by stating that she lied about her age, and stated that he was shocked when he found out. Mr Akok also later in evidence stated that he had been threatened with an IVO after a visit to the woman’s house when seeking to see his son.

34.Mr Akok acknowledged that he was in and out of court before and after his son’s birth in 2020. When asked about a conviction for assault in company in 2021 and what his life was like at this time, Mr Akok responded that he was intoxicated and then asked: ‘you want me to snitch’? He also stated that he was drunk, didn’t want to rob anyone, and referred to peer pressure, stating ‘it’s not me’. In response to a direct question from myself, the Applicant agreed that he had assaulted people.

35.The Applicant was also taken to a number of specific instances of offending or other conduct, stating (in summary):

(a)he could not remember kissing a woman at a train station in 2019, leading to a police report (SG3, 163);

(b)he did not remember punching a train driver in 2020, stating it was ‘too long ago’ (SG3, 165);

(a)he acknowledged assaulting his brother in 2020 whom he had asked for marijuana when he was, according to a police report, ‘extremely intoxicated’ in a visit to the family home, and from which he was excluded by an intervention order (SG3, 167); and

(b)he did not remember an assault and robbery in company with three others in 2020 after which he was found in possession of the victim’s watch (SG3, 155), in respect of which incident, the Applicant repeated that he would not ‘snitch’.

36.Mr Akok was asked about reported instances of family violence. He was unable to specifically recall the overall scale or scope of his related conduct, but acknowledged that police had been called to the family home multiple times. Mr Akok was also not specifically able to recall the nature of conditions imposed, including ‘no contact’ orders with respect to individual family members and exclusion from the family home. In relation to the latter issue, which appears to have resulted in breaches by the Applicant, he stated that he was always

bailed to his mother’s address. Mr Akok also stated that breaches of intervention orders arose because he was intoxicated.

37.I summarise briefly the information and instances dealt with in evidence:

(a)a 2019 report by police indicates a history of 13 family violence incidents between mother and son, and 11 intervention orders through the children’s courts (SG3, 30);

(b)at least one such order had ‘full exclusions’ (SG2, 9);

(c)in one incident in 2019 after an altercation with a family member, Mr Akok threatened to harm himself with a knife, stating the ‘family hates him’ (SG3, 31);

(d)the Applicant is recorded in 2016 as punching a younger brother to the face, the report also states that accommodation was arranged for Mr Akok at a ‘DHS house’ (SG3, 56); and

(e)a verbal argument occurred in September 2020 when the Applicant attended the family home for dinner in contravention of an existing order (SG3, 24).

Submissions and findings

38.Written submissions for the Applicant acknowledge that his offending conduct should be seen as objectively serious (G11/I, 83; ASFIC [36]). They also contend with respect to the assault in September 2020 that the custodial sentence imposed was not at the upper end of the allowable penalty range (G11/I, 83-84; ASFIC [38]). It is also noted that his age was taken into account on this occasion, and it is contended that – while Mr Akok’s criminal record is lengthy – the nature of outcomes overall also indicates his other offending has not been at the upper end of objective seriousness (G11/I, 84-85).

39.The Respondent contends that the September 2020 offending must ‘weigh heavily against him’, and that offending against emergency workers should be considered particularly serious (RSFIC [23], [25]). It is also submitted that regard must be had to the imposition of custodial sentences, that the record is lengthy, and that there was a considerable increase in the level of violence [26]-[27].

40.In closing submissions, particular attention was paid to the circumstances and impact upon the victim of the September 2020 assault. It was contended that it would be extremely serious were such offending to be repeated, which would have consequences for an individual and the community. Mr Akok’s other offending was also enumerated and it was submitted that the Applicant’s alcohol use and apparently previously undiagnosed mental health conditions inform the overall context of this record.

41.I consider that under the Direction, Mr Akok’s violent offending must be seen as very serious (8.1.1(1)(a) i)). I also consider that Mr Akok’s conviction for assault of emergency workers can be considered serious (8.1.1(1)(b) ii), although he was not questioned in evidence on any specific incidents, and there is no supporting material available in the SG documents.

42.I am able to take account of acts of family violence, regardless of conviction (8.1.1(1)(a) iii)), however I consider it appropriate to return to this conduct under the next primary consideration. This is, in part, because I have already identified the Applicant’s criminal conduct to be very serious. Mr Akok has been convicted for numerous breaches of intervention orders, and otherwise, the evidence indicates much of this conduct was committed when Mr Akok was a minor.

43.With respect to the other factors in the Direction that are relevant I find:

(a)Mr Akok has received a wide range of sentences up to and including the most substantial term being for the September 2020 assault, which indicates he has been afforded some leniency in past sentencing (8.1.1(1)(c));

(b)his offending has been frequent and has demonstrated an increasing trend of seriousness, the latter finding is made in reliance upon the sentencing remarks (above) but I also note that Mr Akok has been convicted for offences of violence in previous years (8.1.1(1)(d)); and

(c)the cumulative effect of this repeat offending must be considered quite serious, given the volume of charges and court appearances (8.1.1(1)(e)).

Risk to the Australian community

44.This part of this primary consideration requires me to 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’ (8.1.2(1)).

45.I summarise relevantly from Mr Akok’s 2023 statement:

(a)he feels remorse for the September 2020 assault which was upon his friend, he feels guilt for his actions, and he regrets all his offending [3], [22];

(b)he also feels his past actions have betrayed his family, he needs to provide a good example to his son, and the Applicant has abstained from alcohol and drugs since being in prison and will do so in the future [3];

(c)time in prison and detention have motivated the Applicant to improve himself, he knows that his addictions contributed to his offending, he completed a ten-session course on drug and alcohol abuse, and he ‘likes the version of me that is sober’ [27]- [29];

(d)he commenced seeing a psychologist for the first time in prison and he now understands himself better, has received a diagnosis of schizoaffective disorder with symptoms of panic and hallucination, and he considers that he was affected by this condition while offending [31]-[32];

(e)he has a Foundation House counsellor who he can talk to about his history of trauma, and he looks forward to the appointments [35];

(f)since his incarceration he has reconnected with his family, keeps regular contact with them, his relationship with his mother is the best it has ever been, and he regrets his past behaviour toward them [36]-[38]; and

(g)he wants to live with his mother and have her support, looks forward to returning to Church, will keep seeing his counsellor and maintain his medication, and his first priority is to get a job and support his son [40]-[43].

46.In his earlier statement (G12/J) Mr Akok describes seeing a psychologist in prison for about four months [20]. He states further that he was told by a doctor in juvenile detention, perhaps

two years before going to prison, that he had mental health issues and was prescribed antidepressant medication [22]. The Applicant also states that he completed a traffic management course, and was a prison cleaner for 10 months [26].

47.When asked in evidence what he took away from his drug and alcohol course, Mr Akok stated that these ‘are always going to ruin your life’. He stated that he does not want to be the sort of person that hurts people, and also that he had completed a high intensity violence program. Mr Akok confirmed that he intends to live at his family home with his mother and his eldest and youngest brothers. When asked if he could refrain from aggression against the family, the Applicant responded that his focus will be on work and his son. Mr Akok stated he may also return to his uncompleted vocational training, having previously commenced a bricklaying course.

48.Mr Akok stated that he would cut ties to any previous bad influences; he is ‘not a kid anymore’, and has spent two years locked up, reflecting on his life. The Applicant stated he has everything he needs with his mother, uncle, and siblings. When asked how he might engage with his former partner, and arrangements to see his son, Mr Akok stated that he would seek assistance with this once ‘outside’. He stated, when prompted by myself, that he understood that it was likely he would be required to share time with his son.

49.The Applicant was unable to identify any specific strategies for obtaining employment, although felt his older brother could assist. Mr Akok also identified ‘pick packing’, and stated that another of his goals was to obtain a driver’s license. The Applicant also confirmed his intention to attend a new church in the future, and stated that his nickname was ‘Noah’.

50.In her statutory declaration (G16/N), Ms Ajong states that she has a good relationship with Mr Akok, and that she has noticed changes in him as he now sounds like a grown man [4], [6]. She plans to support him in his return to the community and assistance will also be provided by a church pastor [7]-[8]. Ms Ajong states she is willing to offer accommodation to the Applicant, and that her brother will help him obtain work in the construction industry [12]-[13]. She also states that she has been a point of contact with his son’s mother [18].

51.In her evidence, Ms Ajong stated that she would help her brother by driving him to appointments, as she had done before he went to prison. She stated that her current partner has no relationship with her family and when asked about her statement that she

desperately needs help with raising her five children [16], she responded that Mr Akok has a good relationship with them. She is not employed, but receives social security benefits.

52.The Applicant’s mother, Ms Ayii, stated in evidence that her grandson, the son of Ms Ajong, also lives at her home most of the time. She had in the past seen Mr Akok’s son every one- to-two weeks when his former partner brought him over. However, this had not happened for about six months and she is not currently in contact with the child’s mother. Ms Ayii’s evidence appeared to indicate that she was not well informed about her son’s offending history. She described her house as a two storey house with six bedrooms and a study and she works full time at Australia Post.

53.I invited Mr Deng to give evidence due to his attendance at the hearing and apparent familiarity with the Applicant. He is identified by Mr Akok as an ‘uncle’ but this is a courtesy title and his status is that of a former neighbour. I asked him whether he acted as a ‘role model’ to the Applicant, as indicated in Mr Akok’s own evidence, and he responded that in their culture advice is provided to those who are doing bad things about how to lead their life.

54.In his letter of support Mr Parsons confirms that Mr Akok began accessing Foundation House services in August 2023, and had availed himself of four sessions as at the time of writing. The writer notes the Applicant’s reports of a ‘significant trauma history’, and the prior diagnosis of PTSD, schizoaffective disorder, and substance abuse disorder. Mr Parsons notes Mr Akok’s desire to continue, with a further six months’ counselling envisaged, and to welcome any further referrals.

55.I note a letter of reference from the pastor of the Victory Grace Church of Australia, dated 3 July 2023 (G14/L). The author states that he came to know of Mr Akok through his mother, and indicates that his spiritual journey started some time in 2020. It describes the Applicant’s ‘great work in the community’ as a young father, and his ‘desire to make better choices’.

Submissions and findings

56.It is submitted for the Applicant that the nature of any future harm should he re-offend is likely to be psychological and physical, but of a limited degree (ASFIC [43], [54]). It is accepted that an assessment of ‘no risk’ is virtually impossible, but that ‘there is no evidence

whatsoever that Mr Akok would offend in a similar manner to the incident that led to the cancellation of his visa’ [44], [49]. Submissions refer to a number of authorities, leading to these key contentions [53]:

(a)a finding of fact as to risk must be made reasonably and rationally;

(b)relevant considerations include the conditions under which offending occurred in the past and the likelihood those conditions have changed; and

(c)a finding of future risk must be made on a probative basis.

57.A number of specific matters are said to mean that the Applicant is at a low risk of reoffending, including [56]: engagement with rehabilitation programs; attention to and medication for mental health issues; his maturity and remorse; absence of offending or relapse into substance use; and, significant supports in the community. Accordingly, it is submitted that any risk of reoffending is negligible [59].

58.I note the further contention made that Mr Akok now has greater insight into his offending and its impact than at the time of sentencing for the September 2020 assault (G11/I, 89). It is submitted that his character should be separated from his mental health issues and substance abuse, which can alter behaviour and impair reasoning (G11/I, 90). Further, the Applicant now has an understanding of the way in which these factors contributed to his offending, and this insight will also contribute to a positive relationship with family members (G11/I, 92-93).

59.The Respondent’s written submissions (RSFIC) point to a number of matters that I understand to be identified as being relevant to the assessment of the risk of reoffending. These include [32]-[36]: his past trauma and time in out-of-home care; his mental health condition and continuing treatment; ongoing abstinence and participation in rehabilitation programs; and, remorse expressed at the time of sentencing. However, the Respondent also contends that Mr Akok’s behaviour in prison led to a number of incident reports (G31), that his pattern of offending does not demonstrate remorse or insight, and he is at a real risk of reoffending [37]-[39].

60.At the hearing the Respondent contended that the risk of Mr Akok reoffending could be described as a probability (in the sense of greater than 50/50), and that focus should be

placed on the harm likely to arise. It was further contended that factors such as the Applicant’s unstable upbringing and mental health issues both explain his past offending, and continue to be relevant to assessment of risk. That is, there is a risk of Mr Akok ceasing his medication, falling back into substance use, or regaining bad peer influences.

61.In addition, it was submitted that the Applicant would be returning to the same living circumstances as during his offending, and that family had not prevented Mr Akok from offending before. The Respondent noted Mr Akok’s limited work history and highlighted his evidence about his attitude toward informing on co-offenders. I understood this to be said to raise concerns about his remorse and insight.

62.Relevant authorities on this factor include Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 (Guo) and CKL21 v Minister for Home Affairs [2022] FCAFC 70 (CKL20), and the former High Court case is in fact cited by the Full Court in CKL21. I summarise briefly from CKL21 [74]:

(a)‘… it is possible to assess the degree of likelihood of an event occurring in the future based on past and current circumstances’;

(b)such assessment must be ‘based on a logical process of reasoning based on the known facts’;

(c)a conclusion that a risk ‘cannot be ruled out’ is not of itself sufficient;

(d)‘the risk may be so low that it must be properly disregarded’; and

(e)the key facts for the assessment will include ‘the regularity with which an event has occurred in the past, the conditions under which the event occurred in the past and the likelihood those conditions have changed since or other events have intervened to interrupt the cycle of regularity’.

63.I consider that the core submission made on the Applicant’s behalf does not properly articulate the nature of the assessment, as summarised above. In the present circumstances, Mr Akok has a long history of offending, including more than a single instance of violence. The important question then is the degree to which the Applicant’s own circumstances and conduct can be said to have changed, and the extent to which other supports are likely to help sustain any change.

64.There is no professional medical or psychological assessment of Mr Akok before me. However, the Respondent has not disputed the existence of one, and possibly more, mental health conditions relevant to both past conduct, and any risk of future reoffending. I consider that the evidence overall suggests that it is in fact likely that Mr Akok experienced some form of mental health condition prior to his formal diagnosis. The evidence with respect to the level of the Applicant’s alcohol and drug use could also reasonably be understood as demonstrative of personal dysfunction, probably related to trauma as a child.

65.I consider that the Applicant’s submissions fairly reflect that Mr Akok has to date performed better with rehabilitation than anticipated by the sentencing judge. The sentencing remarks were appropriately guarded, given the Applicant’s poor record at that time. I accept, however, that he has come to develop insight, that his remorse for assaulting his friend is genuine, and that he has already undertaken appropriate rehabilitative programs.

66.It is also correct to say, I consider, that Mr Akok is still at a quite early stage in the process of personal development. I do not put any particular weight on the Respondent’s reference to misconduct in prison, since the material was not dealt with in a substantive way at the hearing. The Applicant is, however, still a young man, and this was reflected in his at times slightly casual demeanour at the hearing. Despite this, he frequently spoke with some precision in parts of his evidence, and is clearly bright. He appears to understand the need for further counselling which is evidently already underway.

67.The evidence demonstrates that Mr Akok’s family is committed to supporting him if released, and I consider that the Applicant has come to know how to identify and set priorities for his life. The evidence of Mr Deng did not lead to additional details of specific support, however the attendance of the witness indicates that Mr Akok has a wider network of supports, which is in his favour.

68.While I accept that repeat offending would have the potential to cause not insubstantial harm, and consider there remains a risk of reoffending, I do not find that it rises to the level of probability, as the Respondent contends. I consider it sufficient to find that there is a possibility of repeat offending, but that Mr Akok’s steps toward rehabilitation and the support he will have in the community appreciably reduce the likelihood of the conditions that facilitated prior offending being repeated.

Summary finding

69.It is ultimately contended for Mr Akok that very limited weight against revocation be given to this primary consideration (ASFIC [61]). The Respondent contends that this consideration weighs very heavily against revocation (RSFIC [39]).

70.I have found that Mr Akok’s offending includes both serious and very serious offending. I have also found that his record overall should be considered quite seriously. That is, despite sustained engagement with the justice system, the Applicant has demonstrated in the past an inability to respond to graduated sentencing outcomes. His last offending was a crime that rightly deserves condemnation for the nature of the assault, the extremely serious consequences for the victim, and its lasting impact.

71.I have also found that there is a risk of reoffending, and that further harm would arise from any repeat of the kind of offending that has characterised Mr Akok’s prior criminal record. Past serious offending means that the expectation expressed in this consideration that non- citizens be law-abiding has not been met, but my assessment of future risk has been tempered by the range of supports that I have found are likely to be in place.

72.This consideration does not focus exclusively upon either past misconduct or the risk of future misconduct, but necessarily embraces both, and I find that this primary consideration weighs strongly against revocation.

Family violence committed by the non-citizen

73.This consideration expresses the Government’s serious concerns about ‘conferring on non- citizens who engage in family violence the privilege of entering or remaining in Australia’ and these concerns are proportionate to the family violence (8.2(1)). This consideration applies to offences or the perpetration of family violence evidenced in authoritative sources, where the non-citizen has been afforded procedural fairness (8.2(2)). The Direction defines family violence broadly to include violent, threatening or other controlling behaviour (4(1)).

74.I set out above the instances of alleged family violence, including the nature of intervention orders and their contravention. The material lodged does not fully substantiate the large number of instances cited in police material, but I accept as a general proposition that there

have been a substantial number of reports made to police. I have also already noted the preponderance of reporting appears to have taken place when Mr Akok was a minor.

75.It is submitted for Mr Akok that any offending as a child should not be given any weight (ASFIC [62]). The earlier submissions acknowledge several instances of aggressive behaviour, noting that this conduct occurred during a tumultuous time in the Applicant’s life (G11/L, 95). It is contended that the family now share harmonious relations.

76.The RSFIC restates the range of conduct traversed in evidence [44]-[51]. This includes the contention that the Tribunal should consider conception of a child with a woman outside the legal age of consent to be an act of family violence. It is contended overall that Mr Akok’s family violence conduct is very serious, that he has not rehabilitated, and his conduct only abated when he was incarcerated [52].

77.In closing submissions it was contended that Mr Akok has experienced limited rehabilitation, and that in evidence he showed limited recall, and a simplistic level of engagement with the allegations. Accordingly, the Respondent questioned whether the Applicant had a proper appreciation of the impact of his conduct. Finally, while abstinence and use of medication were in Mr Akok’s favour, his long record of relevant conduct, it was contended, weighed against him.

78.In the light of Mr Akok’s acknowledgment of certain instances of aggression toward family members, and at least one specific instance of violence toward a sibling, I find that this consideration must weigh to some degree against revocation. I do not place any particular weight on the contention raised about Mr Akok’s relationship with his son’s mother. He denied any wrongdoing, and his evidence as to her age amounts to a defence to a possible criminal charge (RSFIC, p 12, note 5).

79.I accept that the record indicates quite repeated conduct (8.2(3)(a)-(b), (d)). It does not appear that Mr Akok has undertaken any specific program to address family violence behaviour, but he has given appropriate acknowledgment in his statements about his conduct (8.2(3) c)).

80.The evidence overall indicates that Mr Akok’s conduct relevant to this consideration was associated with the same personal dysfunction including mental health and substance use

issues that attended his criminal offending. Without reducing the seriousness of the limited instances of violent conduct, it appears that none led to separate criminal charges. I have, however, noted the repeated contraventions, which weigh against Mr Akok. It is also apparent, equally, that the Applicant’s relationship with his mother, at least, has been restored.

81.I consider that a finding proportionate to the nature and circumstances of the conduct overall is that this consideration weighs against revocation.

The strength, nature and duration of ties to Australia

82.There are several elements to this consideration. It requires consideration of any impact of a decision on a non-citizen’s immediate family members in Australia who are citizens or have a right to permanently reside (8.3(1)). I should give more weight to ties where they have a child who is a citizen, or resides here permanently, and I must give consideration to family or social links more generally (8.3(2)-(3)).

83.I must also give consideration to a non-citizen’s ties to the community more broadly, having regard to the length of residence in Australia (8.3(4)). I must give considerable weight to the fact that a non-citizen has resided in Australia during and since their formative years, regardless of when their offending commenced or its severity, with more weight given to any positive contribution to the community in this time (8.3(4) a) i-ii)).

84.In evidence at the hearing, it was confirmed with the witnesses that Mr Akok’s immediate family all live in Australia, and comprise: his mother; an older brother and older sister; a twin sister; and, two younger brothers. In addition to his own child, Mr Akok has ties to the five children of Ms Ajong. Mr Akok stated in a somewhat unspecific manner that he has a large wider family network in Australia. He also, somewhat reluctantly, gave evidence about a current friendship with a woman from the South Sudanese community, although this did not yet appear to rise to the level of a personal relationship.

85.It is submitted for the Applicant that his family will undoubtedly be adversely affected by his removal or indefinite detention (ASFIC [65]). The submission notes Mr Akok’s young age on arrival and his significant family connections, and it is contended the consideration must weigh heavily in favour of revocation [66]-[67]. The earlier submissions also contend that were the Applicant to be deported, his family would be unable to visit him due to their status

as asylum seekers and that being together as a family unit is of paramount importance (G11/L, 95-96).

86.The Respondent contends that there is a lack of verifiable support from family members (RSFIC [59]). It was submitted at the hearing, however, that this consideration weighs in favour of revocation, particularly given Mr Akok’s long period of residence. It was contended that the Applicant has some, limited, ties to the community through employment and engagement with the church. It was also conceded that due to Mr Akok’s apparent love for his family that those who appeared at the hearing, in particular, would suffer hardship should he be removed from Australia.

87.There is in essence no dispute in this matter that Mr Akok’s ties are centred upon Australia and to his family group, who I accept are to be considered either citizens or permanent residents. I afford considerable weight to the fact he spent his formative years here, but note the lack of evidence of a positive contribution for any sustained period. I also give weight to the Applicant’s ties to his son and nieces and nephews.

88.I find that this consideration weighs strongly in favour of revocation.

Best interests of minor children in Australia affected by the decision

89.I must determine whether or not a decision not to revoke the visa cancellation is in the best interests of a child affected by the decision (8.4(1)). The interests of children should be considered individually, and a range of specific factors are identified as relevant (8.4(3)-(4)).

90.In his 2023 statement, Mr Akok refers to the pleasure he obtains from seeing his son on Facetime, and that he wishes to be a good role model for his nieces and nephews [4]. In his previous statement, the Applicant declared that he was in his son’s life everyday after he was born, and he has since received pictures and updates from the mother (G12 [28]- [29]). He also declares that he will help Ms Ajong with her children, as he has done previously [30]. I have noted above relevant similar evidence from her own statement.

91.In evidence, Mr Akok named the date upon which he first met his former partner and mother of his son. Some time was taken at the hearing to confirm the nature and extent of Mr Akok’s contact with his son prior to his incarceration in 2020, as well as any ongoing links between

his son and the family. Ultimately, the evidence indicates the relationship was over by some time in August 2020, and Mr Akok was arrested shortly after the offence in September 2020.

92.I do have before me a photo of the Applicant with his young son. I also accept that evidence was given by Ms Ayii of ongoing regular contact with Mr Akok’s son after his incarceration, but that this has not continued since around the time of the Applicant’s arrival in immigration detention.

93.It is submitted for Mr Akok that he has a strong and continuing bond with his son, and that the child’s wellbeing and development is his most important priority (ASFIC [71]). It is contended that his son will undoubtedly suffer if Mr Akok is removed from Australia, as he will be prevented from ever knowing his father [73]. It is also contended that the Applicant’s nieces and nephews would be psychologically and emotionally impacted by a non- revocation decision [74]. It is submitted the consideration therefore weighs heavily in favour of revocation [75].

94.The earlier submissions cite academic and policy material concerning the detrimental effect of separation from a parent on children (G11/I, 98-102). It is contended that it is in the best interests of Mr Akok’s son that the Applicant be accessible. Overall, it is contended that the cumulative best interests of all minor children lead to the conclusion that significant weight be given in favour of revocation (G11/I, 102-103).

95.The Respondent’s submissions contend that Mr Akok cannot be considered to have played a parental role where there has been lengthy physical absence and where the mother fulfils this role [61]. It is also contended that any reoffending will have a negative impact on his son [62]. At the hearing it was submitted that the evidence about Mr Akok’s relationship with the child’s mother was equivocal, and it could be inferred that she withdrew from the relationship due to the Applicant’s offending and general dysfunction. It was conceded that the best interests of this child would be served by revocation, should Mr Akok remain sober and functioning in society, and were contact to arise via lawful means.

96.I consider that by definition, Mr Akok has had a parental relationship with his son, albeit lasting only a matter of months, and contact since has been restricted to remote means for some three years (8.4(4)(a)). I consider the evidence overall to suggest that the Applicant has the potential to play a positive parental role in the future, subject to the caveats identified

by the Respondent, but this is not a remote possibility, given the strength of Mr Akok’s wishes and level of motivation (8.4(4)(b)).

97.I consider it reasonable to assume that ongoing contact with his son would be potentially quite challenging should Mr Akok be removed to South Sudan, noting that the child’s mother plays the primary parental role now (8.4(4)(d)-(e)). I do not place any weight on the potential for exposure to family violence by Mr Akok which I consider to be speculative only.

98.With respect to Mr Akok’s nieces and nephews, he does not appear to have played a parental role in the past, and Ms Ajong remains the primary caregiver. Notwithstanding the apparent closeness between these children and the Applicant, he has not been in direct physical contact with them for some years.

99.Despite the limited active role Mr Akok has played in the life of his son to date, I consider it to be strongly in the child’s best interests that mandatory cancellation of the Applicant’s visa be revoked.

100.I consider that it is somewhat in the best interests of Mr Akok’s nieces and nephews that the mandatory cancellation be revoked.

101.On the basis of my finding with respect to the Applicant’s biological child, I find this consideration overall weighs strongly in favour of revocation.

Expectations of the Australian community

102.This consideration expresses in normative language that where a non-citizen has breached the expectation that they obey the law, or engage in serious conduct in breach of the expectation, that they not be allowed to remain in Australia (8.5(1)). The Direction also provides that non-revocation may be appropriate due to the particular nature of character concerns that arise, including from acts of family violence, and commission of crimes against government representatives or officials, regardless of whether there is a measurable risk of physical harm to the Australian community (8.5(2)-(3)). I am not to conduct an independent assessment of what might constitute community expectations in a particular case (8.5(4)).

103.The submissions for Mr Akok mount a sustained critique of this consideration, and would also appear to challenge its lawfulness (ASFIC [78]-[83]). Ultimately, however, it is contended that the Tribunal must take into account ‘all matters in the material before [it] that might reasonably be relevant to the weight to be attributed’ to this consideration [89]. Two decision of the Federal Court of Australia are cited here: QHRY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 827 (QHRY), and Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396 (Kelly).

104.The Applicant’s submissions set out a number of factors that are said to inform this consideration in a positive manner, and that relatively negligible weight be given to it in favour of revocation [90]-[91]. The earlier submissions highlight knowledge of circumstances attributable to Mr Akok that, in a somewhat similar manner, it is submitted modify the community expectation to the extent that they would not expect his visa to remain revoked (G11/I, 103-104).

105.The Respondent’s submissions take issue with the approach taken in the ASFIC, and – essentially – stress the normative nature of the expectation (RSFIC [65]). It is specifically contended that Mr Akok’s history of offending breaches the expectation, and that his family violence conduct is identified in the Direction as being of particular concern. It is contended this consideration weighs heavily against revocation. At the hearing it was contended the Tribunal should weigh the consideration relatively against all other considerations, but if consideration of personal circumstances was undertaken, then all of Mr Akok’s circumstances should be taken into account.

106.In my reading of Kelly, Beach J identifies FYBR v Minister for Home Affairs [2019] FCAFC 185 (FYBR) as the principle authority in relation to this consideration, noting that FYBR was decided in the context of a different version of the Direction. His Honour found that: ‘FYBR establishes that the community expectations consideration does not incorporate all the countervailing factors from the person’s specific circumstances. Instead, these individual factors are brought to account when deciding what relative weight to give community expectations’ [97]. The parties here differ largely as to when to take individual factors into account; that is, how it informs the weight afforded to this primary consideration as against how it informs the final determination as to revocation.

107.The terms of the Direction demonstrate that some consideration must be given to the nature of an individual’s ‘character concerns’ in determining the manner in which the expectation against remaining in Australia may weigh in a particular case. I have set out various factors arising from evidence and submissions in making findings about Mr Akok’s offending. I also consider it appropriate to take these into account when determining what weight to place on this ‘deemed’ expectation.

108.Firstly, I consider that Mr Akok has breached the expectation that he obey the law. I have also taken into account in these reasons the nature and circumstances of his offending, being that it was influenced to an important extent by his dysfunctional circumstances, mental health, and substance abuse.

109.Secondly, it is arguable that offending against emergency workers should be included in the category of serious character concerns as commission of crimes against government representatives or officials in the performance of their duties. I have also identified in these reasons a lack of more specific evidence concerning such events.

110.Thirdly, I have found that the Applicant has engaged in family violence, which under the Direction also raises serious character concerns. However, here too I have noted certain qualifications, principally with respect to Mr Akok’s youth at the time of much of this conduct.

111.I consider that these considerations somewhat moderate the weight otherwise arising under this consideration. I therefore find that this primary consideration weighs against revocation but only to a moderate degree.

OTHER CONSIDERATIONS

112.The Direction identifies four areas of consideration to be taken into account, but this does not restrict the number of other considerations that might be relevant (9(1)). No submissions have been made on the considerations Impact on victims (9.3) and Impact on Australian business interests (9.4), and I do not consider them to be engaged by the evidence or material. I give these neutral weight.

113.The earlier submissions made for the Applicant propose that a further other consideration is the impact of this decision on Mr Akok’s family (G11/I, 95). I consider that this contention asks me to re-consider the factors already identified in the primary consideration The

strength, nature and duration of ties to Australia (8.3). Accordingly, I will not treat this is an additional other consideration.

Legal consequences of the decision

114.Under the Direction I should be mindful that pursuant to the Act, unlawful non-citizens are liable to removal from Australia as soon as reasonably practicable, and to detention in the meantime (9.1(1)). It is irrelevant whether a non-refoulement obligation is owed, and this is an obligation not to return a person to a place where they may be at risk of harm, being the kind of harm associated with protection obligations as reflected in the Act (9.1(2)).

115.I must take into account claims made concerning non-refoulment obligations where there is no protection finding in place (9.1.2(1)). These need not be considered at the same level of detail as arising under a protection visa application, where that option is available to a non- citizen, and consideration of this factor may be deferred (9.1.2(2)).

116.The earliest reference in the material before me to concerns that Mr Akok has about return to Africa are found in his Personal Circumstances Form (G10/H). Here he states: ‘I am afraid of being kidnapped, it normally happens in Sudan a lot’. The Applicant also states: ‘In my country people are very racist and they hurt you if you are black’. I understood Mr Akok to indicate at the hearing that this latter statement was a reference to racism in Egypt.

117.In his statutory declaration, Mr Akok states his concern that he may face indefinite detention [33]. He states further that there is war in South Sudan at the moment and ‘people are suffering’ [34]. The Applicant adds: he does not know anyone there; does not think he can obtain treatment for his mental health and cannot survive there. In his evidence, Mr Akok did not expand greatly upon these claims. He stated that he can speak Dinka a little, and can understand it very well. During closing submissions, Mr Akok stated that he understood that it was possible to apply for a Protection Visa and indicated he would do so in due course.

118.In her statement, Ms Ajong expresses pessimism about her brother’s prospects should he return to South Sudan and in similar terms to Mr Akok [21]-[22]. The extent of any family connections was also explored in her oral evidence, and I accept that there are no substantive family ties in South Sudan.

119.Ms Ayii stated in evidence she would not be happy if the Applicant returned to South Sudan. She stated that her husband had been killed when the family returned from Khartoum to the village where her grandparents had lived (which she named). The family had spent around six months in Khartoum and 12 months in the village, before moving to Egypt.

120.It is asserted in the ASFIC that non-refoulement obligations are owed to Mr Akok due to the class of visa previously held, a Global Special Humanitarian Visa [92]. It identifies the following claims for protection relating to harm arising from the Applicant’s: ethnicity; status as a returnee from the West; status as a person without support; mental health; and, imputed political opinion [93]. The type of harm is identified as including: death; loss of liberty; violence (including forced recruitment to a militia); and, deprivation of healthcare.

121.It is further contended that there are several theoretical outcomes, of which two in particular are considered more likely: constructive refoulement should Mr Akok ultimately return to South Sudan [98]-[101]; and, indefinite detention [102]. The submissions go on to identify the risks to the Applicant of the latter, most tangibly comprising severe psychological harm and self-harm [105]-[110]. It is contended for Mr Akok that this consideration should weigh determinatively in favour of revocation [112].

122.The Respondent disputes that Mr Akok has had the benefit of a protection finding simply due to the nature of his cancelled visa (RSFIC [68]). It is contended that Mr Akok is able to apply for protection visa and the Tribunal may therefore defer consideration of non- refoulment obligations [72]. Consistent with the decision in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, the Respondent contends consideration should be given to the facts underlying protection claims [73], noting that the Applicant’s claims lack detail [74].

123.It is contended that whether or not Mr Akok applies for a protection visa, he will face a further period in detention if the decision under review is affirmed [75]. It is conceded that this would have an adverse impact upon him.

124.There are two preliminary matters. Firstly, I accept the Respondent’s contention that Mr Akok has not been subject to a protection finding. This follows from the fact that the cancelled visa is not of a kind specified as part of the class of Protection visas in s 35A of the Act. In contrast to a more general sense of a person as a ‘refugee’, the reference points

for protection obligations in the Act under s 36 are: ‘serious harm’ due to a well-founded fear of persecution (s 5J(5)); and, a real risk of ‘significant harm’ (s 36(2A)).

125.Secondly, the High Court of Australia made orders in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCATrans 154 (NZYQ) on 8 November 2023. I understand the effect of this is that indefinite detention is not lawful, that is, detention arising in a situation where there is no real prospect of removal being practicable in the reasonably foreseeable future.

126.Neither party has lodged country information independent of references within submissions. I note that in his earlier submissions, reference is made to the lack of medical facilities in South Sudan, in the context of impediments Mr Akok may face on return (G11/I, 107). I consider that I may draw on reliable sources that have been lodged in other matters involving Applicants for whom the country of reference is South Sudan. Relatively recent and comprehensive country information was made available in TXFB and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 1142, and I refer to and adopt the summary of conditions in South Sudan at [183] including: a volatile security situation; a substantial percentage of the population classified as ‘at need’; one of the poorest health systems in the world with scarce mental health services; and, a United Nations recommendation against the forcible return of nationals to the country.

127.I agree with the Respondent’s view that Mr Akok’s claims are lacking in detail, however in circumstances where the Applicant may make a protection visa application, the Direction permits me to consider non-refoulment at a lesser level of detail. Of specific relevance to the Applicant’s claims is, I consider, the unavailability in South Sudan of reliable health services, let alone services that are likely to be necessary to assist him to manage his mental health.

128.While I have already noted the absence of expert medical evidence, I consider it reasonable to conclude that a person with schizoaffective disorder who is taking anti-psychotic medication is likely to be rendered vulnerable in South Sudan. This, in the context of the wider social and economic dysfunction, could reasonably be considered to place Mr Akok at risk of the kind of harm envisaged by the Direction. Accordingly I find that there is some prospect of non-refoulment obligations being owed to the Applicant.

129.I accept that on this basis, Mr Akok would not be subject to immediate removal, and would face a further period of detention, and this has the potential to have negative consequences for his mental health. Equally, should he apply for a protection visa, the Applicant would also be subject to a further period of detention. However, I do not consider that I am required to speculate as to the specific future course of the options available under the Act, other than to note that as a result of the decision in NZYQ, indefinite detention is now most unlikely.

130.Taking into account my preliminary finding with respect to non-refoulement, and the likelihood of some further period of detention, overall I find that this other consideration weighs in favour of revocation.

Extent of impediments if removed

131.I must consider the extent of impediments a non-citizen may face if removed to their home country, in ‘establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country)’ (9.2(1)). Specific factors to take into account are their age, health, any ‘substantial language or cultural barriers’, and any social, medical or economic help available.

132.The essential facts concerning Mr Akok’s circumstances and capabilities have been set out above, as has the fundamental absence of connections with individuals in South Sudan.

133.It is submitted for the Applicant that there is overwhelming evidence he ‘would face the most severe conceivable impediments if he were returned to South Sudan’, including grave risk to his life and liberty [115]. Emphasis is placed on the humanitarian crisis and also upon the likelihood that Mr Akok’s mental health conditions are likely to deteriorated when untreated [116]-[117]. It is contended this consideration should weigh heavily in favour of revocation.

134.The Respondent’s submissions acknowledge Mr Akok’s mental health condition, and lack of familiarity with South Sudan, but contend the national language is English [78]-[79]. It is contended that his return would be ‘difficult’ but this consideration should not outweigh the protection of the Australian community, but does weigh in favour of revocation [80].

135.This consideration establishes a modest bar by identifying basic living standards accessible to citizens of South Sudan. In light of the conditions in that country, identified partly in

submissions and in part by incorporation into these reasons, I consider even this standard to be challenging for a person in Mr Akok’s circumstances. I do not consider the language and cultural barriers to be substantial. However, with conditions in South Sudan as they are, and with no source of advice or assistance, there would appear to be large barriers to the Applicant establishing himself. This is particularly so, as noted in respect of the previous other consideration, given his mental health and medication needs.

136.Accordingly, I find this consideration weighs strongly in favour of revocation.

CONCLUSION

137.Consistent with the Direction, I have given weight to various degrees to the primary and other considerations. Primary considerations should generally be given greater weight than other considerations, and one or more primary consideration may outweigh other primary considerations (7(2)-(3)). The Direction notes that my decision is to be informed by the Principles set out above (6).

138.Of the primary considerations I have found that Protection of the Australian community weighs strongly against revocation, Family violence committed by the non-citizen weighs against revocation, and Expectations of the Australian community weighs moderately against revocation. I have found that the primary considerations The strength, nature and duration of ties to the Australian community, and The best interests of minor children in Australia affected by the decision both weigh strongly in favour of revocation.

139.Of the other considerations, I have found that two weigh neutrally. I have found that the other consideration Legal consequences of the decision weighs in favour of revocation, and Extent of impediments if removed weighs strongly in favour of revocation.

140.I have accepted that Mr Akok has breached the expectation that he be law-abiding and respect Australian institutions. As a general principle, the Direction establishes that he should have his visa cancelled. However, overall, I do not consider that his circumstances raise character concerns of sufficient seriousness to warrant the outcome that his visa remain cancelled.

141.The Principles provide that greater tolerance for offending may be afforded to individuals who have lived in the Australian community for most of their life. I note also that Mr Akok’s

convictions for adult criminal offending commenced some ten years after his arrival, after his formative years here. I also consider that his general level of culpability for his offending is reduced due to his experience of trauma and domestic dislocation, substance abuse and mental health factors.

142.These factors, together with the challenges I consider would arise for Mr Akok if returned to South Sudan, should in fact it ever be safe for this to occur, represent important countervailing considerations in the overall assessment exercise. Accordingly, I find that those primary considerations weighing in favour of revocation, together with those other considerations that weigh in favour, cumulatively outweigh the primary considerations that weigh against.

143.Accordingly, I find that there is another reason that the mandatory cancellation of the Applicant’s visa should be revoked.

DECISION

144.For the reasons given above, the decision dated 23 August 2023 not to revoke the mandatory cancellation of the Applicant’s Global Humanitarian (Class XB) (Subclass 202) visa is set aside and substituted with the decision that there is another reason why the mandatory cancellation should be revoked.

I certify that the preceding 144 (one hundred and forty -four) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member

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

Associate

Dated: 16 November 2023

Date(s)ofhearing:	1 & 2 November 2023
Datefinalsubmissionsreceived:	26 October 2023
Applicant:	Self-Represented
SolicitorsfortheRespondent:	Sparke Helmore