Akon Mabuoc and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Akon Mabuoc and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1780 (20 May 2022)
Division:GENERAL DIVISION
File Number(s): 2022/1829
Re:Tong Akon Mabuoc
APPLICANT

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

REASONS FOR DECISION
Tribunal:The Hon. Matthew Groom, Senior Member
Date of Decision: 20 May 2022
Date of Written Reasons: 22 June 2022
Place:Melbourne

The Tribunal sets aside the decision made by the delegate of the respondent dated 28 February 2022 and in substitution decides to revoke the cancellation of the applicant’s Refugee (Class BA) (Subclass 200) visa.
...........................[SGD].............................................
The Hon. Matthew Groom, Senior Member
Catchwords
MIGRATION – sections 501 and 501CA of the Migration Act 1958 (Cth) – cancellation revoked under section 501CA(4) – where the applicant has a substantial criminal record – where the applicant does not pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction No. 90 – primary and other considerations considered – protection of the Australian community from criminal or other serious conduct – significant criminal offending – risk to the Australian community – whether conduct constitutes family violence – best interests of minor children in Australia considered – expectations of Australian community – international non-refoulement obligations – extent of impediments if removed – links to the Australian community – decision under review set aside and new decision substituted
Legislation
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Minister for Home Affairs v Omar [2019] FCAFC 188
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
PYDZ v Minister for Immigration, Citizenship. Migrant Services and Multicultural Affairs [2021] FCA 1050
Schuster-McFadyen v Minister for Immigration and Citizenship (2011) 124 ALD 68; [2011] FCA 1303
Secondary Materials
1951 Convention relating to the Status of Refugees and its 1967 Protocol
1966 International Covenant on Civil and Political Rights
1984 Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment
Amnesty International Report for 2020/2021
Department of Foreign Affairs and Trade Country Information Report on South Sudan dated 5 October 2016
Direction No 90 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
The Hon. Matthew Groom, Senior Member
INTRODUCTION

This matter involves an expedited review of a decision made by a delegate of the respondent dated 28 February 2022 not to revoke the mandatory cancellation of the applicant’s Refugee (Class BA) (Subclass 200) visa (visa) pursuant to section 501CA(4) of the Migration Act 1958 (Cth) (Act).
The Tribunal heard the matter on 12 and 13 May 2022. Mr Cunynghame appeared on behalf of the respondent. The applicant was self-represented.
On 20 May 2022 the Tribunal set aside the decision under review. Set out below are the written reasons for the Tribunal’s decision.
BACKGROUND
The applicant is 34 years of age and was born in a small village in the province of Kordofan, Sudan in 1988. The applicant maintains that he is stateless. The respondent contends that the area in which the applicant was born is now considered to be part of South Sudan and that the applicant is a citizen South Sudan by reason of the South Sudan Transitional Constitution of 2011. The Tribunal accepts the respondent’s contentions in this respect.
The applicant was granted his visa on 25 November 1998 and arrived in Australia on 28 January 1999 together with his mother, stepfather and six siblings. The applicant was approximately 11 years of age at the time of his arrival.
On 1 September 2021 the applicant’s visa was mandatorily cancelled under section 501(3A) of the Act on the basis that the applicant had a substantial criminal record and was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against the law of the Commonwealth, a State or territory.
On 26 December 2021 the applicant applied to have the mandatory cancellation decision revoked and submissions to that effect were made on his behalf by Refugee Legal.
On 28 February 2022 the decision under review was made.
The applicant then subsequently applied to have that decision reviewed which is the matter before this Tribunal.
ISSUES TO BE DETERMINED
The Act sets out the legislative provisions relevant to the issues to be determined by the Tribunal in relation to this matter.
The issues for determination are:
(a)whether the applicant passes the character test for the purpose of section 501CA(4)(b)(i) of the Act as defined in section 501(6) of the Act; and
(b)if the applicant does not pass the character test, then whether there is another reason why the cancellation should be revoked under section 501CA(4)(b)(ii) of the Act.
The Tribunal is satisfied that the applicant does not pass the character test pursuant to section 501(6)(a) and section 501(7)(c) of the Act as a consequence of having been sentenced to a term of imprisonment for 12 months or more. The residual question therefore is whether the Tribunal is satisfied that there is “another reason” why the mandatory cancellation should be revoked.
Section 499 of the Act provides the Minister with the power to make and give directions to individuals exercising powers under the Act. A person exercising such power (including the Tribunal) must comply with such direction.[1]
[1] See section 499(2A) of the Act.
On 8 March 2021, the Minister issued Direction No 90 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA – in accordance with section 499 of the Act (the “Direction”). The Direction came into effect on 15 April 2021.
The Tribunal accepts that the Direction is consistent with the Act and the Tribunal has therefore applied the Direction in making its decision in this matter.
Paragraph 5.2 of the Direction sets out guiding principles for decision-makers the exercise of the discretion as follows:
The principles below provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The factors (to the extent relevant in the particular case) that must be considered in making a decision under section 501 or section 501CA of the Act are identified in Part 2.
1Australia 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.
2Non-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.
3The 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 risk of causing physical harm to the Australian community.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
5Decision-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 8.4(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 risk of causing physical harm to the Australian community.
Paragraph 7 of the Direction sets out guidance in relation to the manner in which relevant considerations are to be taken into account as follows:
1In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
2Primary considerations should generally be given greater weight than the other considerations.
3One or more primary considerations may outweigh other primary considerations.
While the Direction provides that primary considerations should generally be given more weight, it is now well-established that in exercising its discretion the Tribunal can give equal or greater weight to any consideration where the Tribunal considers it appropriate to do so.[2]
CONSIDERATION
[2] Schuster-McFadyen v Minister for Immigration and Citizenship (2011) 124 ALD 68, 75–76 [42]; [2011] FCA 1303.
Primary considerations
Paragraph 8 of the Direction lists the primary considerations as follows:
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the best interests of minor children in Australia; and
(d)expectations of the Australian community.
Protection of the Australian community
Paragraph 8.1 of the Direction provides that:
1When considering protection of the Australian community, decision-makers should 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. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
2Decision-makers should also 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.
Nature and seriousness of the conduct
The Tribunal accepts that the National Criminal History Check Report dated 21 September 2021 included in evidence is an accurate record of the applicant’s offending history.
The applicant’s history of offending is significant.
The applicant first commenced offending as a juvenile when he was approximately 17 years of age. The applicant was found guilty of a number of public order offences for which he received a fine without conviction. He was also found guilty later that year for a series of offences involving assault police and resist police and being drunk in a public place. The matter was adjourned without conviction.
In July 2008 the applicant was convicted of a series of offences including criminal damage, handle/receive/dispose of stolen goods, unlawful assault, threat to kill and fail to answer bail. The applicant was placed on a community-based order for 12 months.
In March 2009 the applicant was convicted of a further series of offences including criminal damage, recklessly cause injury, resist police, attempt to escape police, assault police and fail to answer the bail. The offences resulted from an incident that occurred at a railway station. According to the police records the applicant was found intoxicated at a railway station early one morning. While being searched the applicant attempted to escape police but was re-apprehended after a few steps. He continued to resist police by attempting to loosen the police’s grip on him and also by pushing his feet against the door of the police van. The applicant was sentenced to an aggregate term of imprisonment of 12 months for these offences and was also sentenced to 6 months imprisonment for breach of the community-based order but to be served concurrently. In addition, the applicant was fined $600 for using indecent language.
In February 2012 the applicant was convicted of a series of offences including drunk in a public place, stating a false name, criminal damage, unlawful assault, assault police and contravene family violence order. The applicant was placed on a community corrections order for 12 months and ordered to pay $105 compensation.
In April and May 2012 the applicant was convicted of a number of further offences including drunk in a public place, resist police and theft from a shop. The applicant was convicted and discharged for these offences.
In October 2012 the applicant was convicted of a series of further offences including contravene community correction order, unlawful assault, assault police, contravene family violence order and stating a false name. The applicant was sentenced to an aggregate term of imprisonment of 3 months for these offences to be served concurrently.
In 2017 the applicant was convicted of driving offences including exceeding the prescribed alcohol limit and dangerous driving. The applicant was sentenced to a community corrections order for 12 months and had his driving licence cancelled.
In August 2018 the applicant was convicted of a further offence of exceeding the prescribed alcohol limit and driving while suspended. The applicant was also convicted of unlawful assault, contravene family violence notice and order, stating a false name and failing to answer bail. The applicant was sentenced to a further community corrections order for 18 months and had his driving licence cancelled.
In September 2018 the applicant was found guilty of contravening a community corrections order. The applicant was also convicted of possessing cannabis, contravening a family violence order and failing to answer bail. The applicant was convicted and discharged.
In July 2021 the applicant was convicted for his most recent series of offences including possess methylamphetamine, obtain property by deception, commit indictable offence on bail, handling stolen goods, fail to answer bail, contravene community corrections order, unlicenced driving, exceed speed limit and refusing to undergo a further breath test. The court transcript at sentencing included a description of the offending which the applicant did not seek to challenge at the hearing and which the Tribunal accepts is accurate. According to the transcript the applicant was at a shopping mall and was asked by protective service officers to produce evidence of purchase. In the process of retrieving his receipt from his pocket a small plastic bag fell out. It was later found to have contained methamphetamine. There had also been a complaint about unauthorised transactions on a lost credit card amounting to approximately $300 which resulted in the charges relating to obtain property by deception and handling stolen goods. The applicant had also been recorded as driving 117kph in a 70kph zone. The applicant admitted to police that he was not licensed. He tested positive in a preliminary breath test but refused to undergo an evidentiary test at the police station. The applicant was sentenced in aggregate to 3 months imprisonment and a 12-month community correction order on release for these offences.
The Tribunal is satisfied that the applicant’s offending is very serious.
It reaches this conclusion for a number of reasons.
While there is limited detail in relation to much of the applicant’s offending included in the evidence before the Tribunal, a number of the applicant’s offences include a violent aspect, in particular, his unlawful assault and assault police offences. The Tribunal is satisfied that these offences amount to violent crimes for the purpose of the Direction and are appropriately considered to be very serious. The offences against police officers are also offences involving officials in the course of their duties and, in the Tribunal’s view, are very serious for that reason also.
There was also limited detail in relation to the applicant’s offending involving breaches of family violence intervention orders. On the eve of the hearing the respondent made a late application seeking to include into evidence further internal police reports relating to some of the applicant’s offending in this regard. The Tribunal declined to do so on the basis that it was not satisfied that the applicant would be in a position to obtain legal advice in relation to the additional material prior to the date by which the Tribunal was required to decide the expedited application. While it was open to the Tribunal to adjourn the matter for a number of days to afford the applicant the opportunity to seek to obtain such advice, given that the applicant had not secured representation for the hearing itself and given the limited time period available, the Tribunal was not confident the applicant would be successful in doing so. In those circumstances, when weighing the relative prejudice to each party the Tribunal formed the view that the most appropriate decision was to refuse to receive the further materials into evidence.
In his direct evidence the applicant conceded that a family violence intervention order had been taken out against him prior to his offence of breaching the order in 2012. The applicant told the Tribunal that the order had been taken out as a consequence of him being intoxicated at his mother’s house but that his mother had not specifically sought the order, rather it had been put in place at the insistence of police. When pressed further the applicant conceded that he had been intoxicated at his mother’s house and had broken a window to get inside the house “and I think that scared my mother a bit and she called police”. The applicant denied that his mother had been physically harmed as a result of the incident. The applicant also told the Tribunal that he had been drinking very heavily during this period in his life.
In the Tribunal’s view, it is reasonable to infer from the applicant’s evidence that prior to the taking out of the family violence intervention order which he was subsequently convicted of breaching, the applicant had, on at least one occasion, forcibly entered his mother’s house by the breaking of a window while intoxicated and had caused his mother to be fearful for her personal safety. In the Tribunal’s view, it is also reasonable to infer that his mother had not wished for the applicant to be present in the house at that time due in some part to the extent of his intoxication. In the Tribunal’s view, this constitutes an act of family violence for the purpose of the Direction. The Tribunal is also satisfied, consistent with the direction, that the applicant’s conduct in this respect was very serious. In reaching this conclusion the Tribunal acknowledges that the applicant has not been found guilty of any crime in respect of this conduct although the applicant was convicted of subsequently breaching the order which in the Tribunal’s view is, in and of itself, a further example of serious offending.

There was also evidence before the Tribunal of the applicant engaging in a further breach of a family violence intervention order in 2018. The charge sheet described the applicant of having gone within 200 meters of the family home in breach of the order. The applicant told the Tribunal that the order had been taken out against him as a result of a fight he had with his girlfriend where “I lost control of my anger and punched her”. The applicant conceded that in the hours prior to the incident he had been drinking to the point of intoxication. On the basis of the evidence before it, the Tribunal is satisfied that the applicant’s conduct in this respect amounts to family violence for the purpose of the Direction and is very serious. In relation to the breach offence the applicant conceded that he had understood that the order prevented him from being within 200 meters of his home but that he had returned home because he had “nowhere else to go”. The Tribunal is satisfied that the applicant’s offending conduct involved him knowingly disregarding the order that had been put in place to provide protection for his then partner. In the Tribunal’s view this offending conduct is also very serious.
In addition, the Tribunal is also particularly concerned about the repeat driving offences including the excessive speeding, unlicenced driving and exceed prescribed alcohol limit offences. There is no question in the mind of the Tribunal that offences of that kind have a real potential to cause significant harm to members of the Australian community and the fact that the applicant has engaged in a repeat of such offending is also very serious conduct.
Further, when considered as a whole, the applicant’s offending history is significant and at various times the applicant has offended with a level of frequency which has a substantial cumulative impact and, for that reason also, the applicant’s offending conduct must be considered very serious.
The Tribunal also acknowledges that on more than one occasion the applicant’s offending has resulted in a term of imprisonment and on one occasion a term of 12 months. While any term of imprisonment is very significant, a term of imprisonment of 12 months is particularly significant and reflective of the seriousness with which the sentencing Judge treated the applicant’s offending conduct.
Risk to the Australian community
The Tribunal is satisfied that should conduct of a similar nature to the applicant’s offending and other serious conduct be repeated, it has the potential to cause very serious physical and psychological harm to members of the Australian community. That harm could potentially extend to members of the applicant’s own family including his partner. That is a matter of very real concern to the Tribunal.
In assessing the risk of the applicant reoffending, the Tribunal has had careful regard to the circumstances that have given rise to the applicant’s offending and other serious conduct, the steps taken by the applicant to address the conduct and other protective factors relevant to the risk of the conduct being repeated. The Tribunal has had particular regard to the factors set out in paragraph 8.1.2 of the Direction.
In the course of his evidence the applicant expressed his regret and remorse for his offending. He told the Tribunal that he regretted making the choices that he has made. In a written statement to the Tribunal the applicant stated that “I’m deeply sorry for my action to the Australian community” and expressed regret for the impact his offending has had on his family and in particular his mother who has made sacrifices to bring the applicant and his family to “this beautiful country”. The respondent submitted that the applicant’s statements of regret should not be considered to apply to the circumstances giving rise to the family violence intervention orders, and in particular the applicant’s assault of his former partner, as the applicant did not make a statement to that effect expressly. The Tribunal rejects that contention. The applicant stated his regret and remorse in very broad terms and the Tribunal accepts that those statements were intended to apply to the whole of his offending and other serious conduct and the Tribunal accepts those statements as being genuine.
In the Tribunal’s view, central to much of the applicant’s offending and other serious conduct has been his ongoing abuse of alcohol for much of his adult life as well as his drug use during various periods.
In his direct evidence the applicant told the Tribunal that he started drinking at around 18 years of age. He told the Tribunal that he was initially drinking a few drinks casually here and there and then his drinking spiralled out of control when he was about 19 years of age. He described at his peak drinking as much as 4 litres of wine a day in the period leading up to his first term of imprisonment. He told the Tribunal that when he was released from prison he took up drinking again at a similar level of intensity. He told the Tribunal that he reduced his drinking in around 2013 which is following his second term of imprisonment and that immediately prior to his most recent incarceration in 2021 he was typically drinking around a six pack of beer over the course of a weekend.
The Tribunal accepts the applicant’s evidence in this respect. It is very clear that the applicant has had a significant issue with abuse of alcohol for much of his adult life. This conclusion is reinforced by the fact that a substantial number of the applicant’s offences have involved alcohol in some manner. The applicant told the Tribunal that at the time of his 2009 offences he was very substantially impacted by alcohol. He also acknowledged that he was intoxicated at the time of smashing his mother’s window which led to the initial family violence intervention order being put in place. While the Tribunal accepts that the applicant had reduced his drinking to some degree prior to his most recent offending when compared to the level of drinking prior to his second term of imprisonment, the applicant’s drinking nonetheless continued to be problematic at least until as recently as 2017 and 2018 given that he was convicted of multiple exceed prescribed alcohol offences during that period. It is also of concern to the Tribunal that the applicant was convicted of an alcohol-related offence as recently as 2021.
At various times during his adult life the applicant has also had an issue with the use of illicit drugs. The applicant told the Tribunal that he commenced using methylamphetamine or “ice” in around 2016. He told the Tribunal that he had fallen in with the ‘wrong crowd” including people he met through his former partner who also used ice. The applicant told the Tribunal that he was using ice at the time he recommenced offending in 2017 and 2018 and that he believed his drug use had been a contributing factor in his offending at that time. The Tribunal accepts the applicant’s evidence in that respect and, further, is satisfied on the evidence that the applicant’s use of illicit drugs and ice in particular continued up until his most recent series of offences in 2021, which of course included a conviction for possession of methylamphetamine.
The Tribunal is satisfied that the applicant has experienced significant challenges during his childhood and early adolescence. The applicant’s father died in the Sudan war when he was very young and his mother remarried. After his family fled Sudan as a consequence of the war the family settled in a refugee camp in Egypt where they lived for approximately one year. The family then obtained visas and migrated to Australia. The applicant was approximately 11 years old when he arrived in Australia. Shortly after the family arrived the applicant’s mother and step-father separated and the family experienced a period of homelessness. The applicant described having a poor relationship with his step-father and stated that he had not maintained any contact with him since the separation. There was evidence before the Tribunal that the applicant’s step-father had been aggressive and violent towards the applicant’s mother and neglectful of the applicant himself. The Tribunal accepts that evidence. Following his mother and step-father’s separation the applicant had no father figure in his life. When he first arrived in Australia the applicant and the other members of his family found the cultural differences very challenging. The applicant was unable to speak English but took up English at language school and now speaks English fluently. Following language school the applicant attended a local primary school and then high school and ultimately completed year 11 before dropping out. The applicant described generally enjoying school and participating in sport including high jump, soccer, basketball and AFL. Following school the applicant took up factory jobs and labouring. The applicant told the Tribunal that after leaving school he began mixing with “the wrong crowd” and started to drink at that time.
While the applicant did not seek to rely on the challenges he faced in his early life as an excuse for his drinking and drug use or for his offending itself, the Tribunal is satisfied that his personal circumstances are relevant in understanding how it was that the applicant failed to complete school through to year 12 which in turn led to him initially falling in with “the wrong crowd” and commence drinking heavily. The Tribunal is satisfied that the applicant’s heavy drinking was a very significant contributing factor in the applicant’s subsequent offending. The Tribunal is also satisfied that the applicant’s subsequent use of illicit drugs including ice also significantly contributed to him falling back into offending in around 2017.
The respondent representative submitted that the applicant has not fully appreciated the significance of his alcohol and drug use as a contributing factor in his offending. The Tribunal does not accept that contention. While the applicant presented as quite articulate and was able to express himself very clearly at times, generally he presented as a person of very few words. He was also unrepresented at the hearing. While the applicant did not say a great deal on the subject of his alcohol and drug use it was clear to the Tribunal that the applicant understood that his alcohol and drug use has had a very negative impact on his life and has been a significant contributing factor in his offending and other serious conduct. The applicant conceded that he was intoxicated at the time of his 2009 offences. He told the Tribunal that he was intoxicated when he broke his mother’s window and that she did not like to see him in that state. He also acknowledged that his use of ice had contributed to him recommencing his offending conduct in 2017.
The applicant has had the benefit of a period of detoxification during his more recent time in custody and the Tribunal also accepts that it has given him a further opportunity to reflect on his conduct and what he needs to do differently to avoid repeating such conduct in the future. The Tribunal is satisfied that the applicant is genuinely committed to undertaking drug and alcohol counselling as well as men’s behavioural counselling if released back into the community. In his statutory declaration the applicant stated that he wants to undertake the counselling and acknowledged that he needs to make an effort in this respect in order to “be there for my family”. Both the applicant’s mother and partner have expressly stated their commitment to help ensure the applicant undertakes counselling on his release. The applicant’s community corrections order on release also requires him to undergo alcohol and drug counselling as well as assessment and treatment as directed. In the Tribunal’s view the existence of the order as well as the applicant’s stated commitment to comply along with the offers of support from the applicant’s mother and partner are all protective factors against the applicant relapsing back into drug and alcohol abuse and reoffending.
There was also evidence before the Tribunal of the applicant having experienced periods of depression during his adult life. The applicant gave evidence of feeling depressed during his separation from his former partner, AH, in particular as a consequence of being separated from his children who had moved to South Australia with her. This evidence was reinforced by the statement made by the applicant’s current partner, NM. The Tribunal is satisfied that the applicant’s feelings of depression have in part contributed to his drug and alcohol abuse, in particular, in the period leading to his most recent offending. The applicant’s ongoing mental health is therefore of some concern to the Tribunal in its assessment of the risk of the applicant relapsing back into drug and alcohol abuse and reoffending. The applicant stated that he is now in a better mental state however the Tribunal is satisfied that some of the underlying issues that gave rise to those feelings are still present in his life. In the Tribunal’s view, the fact that the applicant has acknowledged his feelings of depression and has the support of his current partner who is also aware of his mental health concerns is a positive step towards effectively managing those concerns should they re-emerge. The community corrections order also requires that the applicant undergo a mental health assessment and further treatment as directed and the applicant confirmed his commitment to complying with those requirements on his release. The Tribunal accepts that the applicant’s stated commitment to doing so is genuine and that he has the support of his partner and mother in this respect. In the Tribunal’s view, this acts as a protective factor in the proper management of the applicant’s mental health which in turn reduces the risk of the applicant relapsing back into drug and alcohol abuse and reoffending.
There was also evidence before the Tribunal of a willingness on the part of the applicant’s mother and current partner to provide support to the applicant on his release more generally. The applicant’s evidence was that he remains in a committed relationship with his current partner, NM, and that NM continues to be supportive of him and does not use drugs herself. There was also a statutory declaration by NM in evidence before the Tribunal in which NM confirms her support for the applicant and her desire to see him remain in Australia and to help raise their two children together with NM’s third child from a previous relationship. NM stated that she was committed to building a family together with the applicant and was committed to help keep him “on track". She stated that her longer-term plan was to be able to secure a house with the applicant and to live together as a family with their children and her mother. The Tribunal materials also included a statutory declaration from the applicant’s mother in which she describes the applicant as being an important support to her and the person “I have always relied upon” and confirms her commitment to support the applicant and to help him focus on his family and undertake any necessary course and reporting requirements. The Tribunal accepts that the statements of support from the applicant’s partner and mother are very genuine. Given the applicant’s prior history of “falling in with the wrong crowd” the support on offer from the applicant’s partner and mother is a further protective factor that can provide the applicant with a level of support which in turn reduces to some degree the risk of the applicant relapsing back into drug and alcohol abuse and reoffending.
However, the Tribunal is very mindful that these protective factors, the applicant’s most recent statements of commitment and the other supports on offer have not yet been tested in the community. The applicant has had the opportunity to remain free from drugs and alcohol on release from prison previously and yet failed to do so. When asked why the Tribunal should have confidence that the applicant will remain free from drugs and alcohol and avoid mixing with the “wrong crowd” on his release this time around, the applicant told the Tribunal that “I have got four children and I am at an age now when I have to be serious about life”. The applicant stated that he wanted to be there for his partner and all of his children. He expressed a concern for the impact his removal from Australia would have for his partner in particular given that she had limited support otherwise to help her in raising their children together and also his mother given her limited English and the absence of her own partner to help her. The applicant told the Tribunal that on his release he plans to live with his mother until he can get a job and ultimately secure a house of own for his partner and children with NM. The applicant told the Tribunal that he was committed to helping NM raise their children together with NM’s third child. The applicant told the Tribunal that he also wanted to visit his other children and “step” children from his previous relationship as soon as he is able to arrange it. The applicant told the Tribunal that he was committed to playing a role in each of his children’s lives and to help them learn from his mistakes. When asked what work he would seek on his release the applicant told the Tribunal that he would initially look for some warehouse type work as he has a forklift licence and then he would like to explore the possibility of an apprenticeship – perhaps in plastering.
The Tribunal is satisfied that these factors are, to some degree, different to the circumstances the applicant faced on the previous occasions he has been released from prison and relapsed back into drug and alcohol abuse. The applicant has this time around been forced to face the prospect of being relocated to South Sudan which was not a consequence he faced quite so directly when he was previously incarcerated. On this occasion he also has the offer of support from a partner who herself does not use drugs. The applicant is also of an older age and with very significant parental responsibilities. The Tribunal is also satisfied that the applicant has developed future plans if released back into the community which the Tribunal found to be reasonably considered and grounded and that offer a strong incentive for the applicant to not relapse back into drug and alcohol abuse and reoffend.
Notwithstanding these conclusions, the Tribunal cannot ignore the fact that the applicant has been dealing with drug and alcohol abuse issues for much of his adult life and has previously had opportunities to remain free from drugs and alcohol after a period of incarceration and yet relapsed. The Tribunal accepts that the applicant’s statements of regret and remorse for offending is genuine and his statement of commitment to addressing his underlying issues including by complying with the requirements of the community corrections order to undertake drug and alcohol counselling is also genuine and that a number of other protective factors including offers of support from the applicant’s mother and partner exist which help reduce the risk of the applicant relapsing back into alcohol and drug abuse. The Tribunal is satisfied that the applicant understands that he has a great deal at stake if he were to reoffend again in a similar manner and is strongly motivated to avoid a relapse. The Tribunal is also mindful that the applicant has demonstrated periods in the past where his alcohol use was heavily reduced and where he was not using illicit drugs. It is noteworthy in this respect that the applicant recorded no offending between October 2012 and September 2017. Having considered the whole of the evidence the Tribunal is satisfied that the risk of the applicant relapsing back into drug and alcohol abuse is towards the lower-end but the risk cannot be dismissed as being minor or negligible. The Tribunal is satisfied that if the applicant were to relapse back into drug and alcohol abuse then the prospect of him engaging in further conduct similar to his past offending or other serious conduct is certainly not minor or negligible.

For these reasons, the Tribunal is satisfied that this consideration weighs against a decision to revoke the cancellation of the applicant’s visa and gives this consideration a moderate weighting.
Conduct involving family violence
The applicant has not been convicted of an offence amounting to family violence although he has been convicted or otherwise found guilty of contravening a family violence intervention order or notice on 5 occasions, two offences in 2012 and three offences in 2018.
As noted earlier in these reasons, there was limited detail in evidence before the Tribunal regarding the circumstances that led to the taking out of the family violence intervention orders that were the subject of those offences. However, the applicant did concede that he was involved in an incident at his mother’s house in 2012 that resulted in him breaking a window to gain entry that ultimately led to an order being put in place against him. In addition, the applicant also acknowledged in his evidence to the Tribunal that on one occasion he had punched his former partner which had also resulted in an order being put in place against him. For the reasons already stated, the Tribunal is satisfied that the applicant’s conduct in this respect amounted to family violence for the purpose of the Direction and was serious. The Tribunal is also satisfied that the applicant’s offences of breaching the orders in place were also serious offences given that the applicant knowingly engaged in the breaches and those orders had been put in place to ensure the safety of the applicant’s mother and former partner.
The Tribunal is not satisfied that the applicant has engaged in frequent family violence for the purpose of paragraph 8.2(3)(a) of the Direction nor can there be said to be a cumulative impact of repeated acts of family violence for the purpose of paragraph 8.2(3)(b) of the Direction.
The Tribunal is not satisfied that the applicant has engaged in any specific course of rehabilitation in respect of family violence. In his direct evidence the applicant made brief mention of having engaged in a counselling program through the Salvation Army but the details were scant and the Tribunal places no weight on that specific aspect of his evidence. The applicant has stated however that he is committed to undertaking drug and alcohol and men’s behavioural counselling on his release and as described earlier the applicant’s community corrections order requires both drug and alcohol counselling and a mental health assessment be undertaken. The Tribunal accepts the applicant is committed to ensuring compliance with that requirement and also that he has the support of his mother and partner in doing so.
The respondent contends that the applicant has not made specific mention of his family violence conduct in expressing remorse and regret. For the reasons already explained, the Tribunal does not accept this contention. The Tribunal accepts that the applicant’s statements of remorse and regret were broad in both words and intent and the Tribunal has understood them to include the whole of the applicant’s offending and other serious conduct. The applicant was forthright in his acknowledgement of his conduct. The applicant has also made clear that he understands the importance of avoiding a relapse back into drug and alcohol abuse and the importance of him undertaking further counselling to ensure he avoids a relapse and so that he can be there to support his family and be a better role model for his children. The Tribunal accepts the applicant’s statement of commitment in that regard as being genuine although it acknowledges a lower end level of residual risk of relapse as outlined in the section addressing the protection of the Australian community.
For these reasons, the Tribunal is satisfied that this consideration weighs against a decision to revoke the cancellation of the applicant’s visa and gives this consideration moderate weighting.
Best interests of minor children in Australia
In assessing this consideration, the Tribunal has had careful regard to the factors set out in paragraph 8.3(4) of the Direction.
The applicant has two children with his current partner, NM. They are Ay who is approximately 18 months old and Oc who is approximately 6 months old. Each of Ay and Oc reside with NM in Victoria.
In addition, the applicant has two children from his previous relationship with AH. They are Ma who is approximately 6 years old and Nv who is approximately 2 years old. AH also has two children from a previous marriage. They are Cu and Zy who are approximately 13 years old and 9 years old respectively. Each of Ma, Nv, Cu and Zy all currently reside with AH in South Australia.
In his evidence to the Tribunal the applicant stated that each of his children are extremely important to him, that he is committed to being present in their lives and to be a good role model for each of them. He told the Tribunal that he is committed to being a father figure to each of the children. The applicant stated that prior to his most recent incarceration he had been providing some financial support to his mother and each of NM and AH for the benefit of the children and that he wanted to continue to provide support to them.
The applicant told the Tribunal that Ma enjoyed art and dancing and that she loves school and wants to grow up to be an artist. Prior to being incarcerated he enjoyed taking Ma to the park or the shops and that sometimes they would watch movies together. He has not yet met Nv in person but speaks to her through FaceTime and that he wants nothing more than to be able to meet her in person. He said that he would typically speak to the children about once a week.
The applicant told the Tribunal that Cu is in year 7 at high school and is very tall for his age and enjoys playing soccer and video games. He described Zy as enjoying video games and also movies. He said that when he had lived with them he would take them to the park or play sport or sometimes go to the movies together. Again, the applicant said that he would typically speak to the children by phone about once a week.
The applicant told the Tribunal that Ay is “a cheeky girl” and that he previously enjoyed taking her to the park, pushing her on swings and playing around the house. He has not yet met Oc in person as she is only 6 months old but that she is a good sleeper. He stated that he was desperately wants to see Oc in person and hold her in his arms and “welcome her to the world”. The applicant told the Tribunal that he speaks to Ay and Oc on the phone every time he gets the chance, which again he estimated to be about once a week.
The applicant told the Tribunal that if released back into the community he planned to get a job and ultimately secure a house of his own and live together with NM, Ay and Oc as a family. He told the Tribunal that he intended to continue to be a father to the children and to be a positive role model for them. He also stated that he wanted to be there to help support NM.
He told the Tribunal that if released he also planned to make arrangements to travel to South Australia and spend time with Ma and Nv and again to continue to be a father figure in their lives. He also hoped to be able to see Cu and Zy and spend time with them. He stated that he found his separation from Ma, Nv, Cu and Zy as a consequence of his separation from AH to be very difficult. He stated that he also loved and treated Cu and Zy as his own and that he still loves and cares for them very much.
He told the Tribunal that currently AH is caring for Ma, Nv, Cu and Zy in their own house in South Australia. AH is on Centrelink benefits and he was not aware of any other support that AH has in raising the children. AH has a father in South Australia but the applicant does not believe AH’s father helped out with the children and he does not believe AH is in contact with her mother.
The applicant told the Tribunal that Ay and Oc currently live with NM in Victoria together with NM’s sister. NM is also unemployed and in receipt of Centrelink benefits. The applicant told the Tribunal that NM gets very little help from her sister in raising Ay and Oc because she does not have the time to help out as she is working.
In her statement before the Tribunal NM stated that she supported the applicant as her partner and the father of her children Ay and Oc. She expressed her concern that if the applicant is not able to stay in Australia then the children will be without their father and also she will not have her partner to care for and love. She stated that if the applicant was not released it will be very difficult for the family.
NM, also has a son, Le, from a previous relationship. Le is approximately 9 years old. Le also lives with NM in Victoria. Le has a form of ADHD. In her statement NM stated that prior to being incarcerated the applicant was spending time with Le and they were developing their relationship and getting closer and closer. NM described the applicant and Leo playing video games and soccer together and that Le was also asking to see the applicant. NM also stated that the applicant’s other children with AH are very special to him and that it hursts him to be away from them. NM also stated that she and the applicant had plans to get a house together and for all of her children, including Le, to live together as a family if he is released. NM stated “He [the applicant] and I are committed as a family. We are in this together and I am counting on him being here. We want to focus on getting a house. We want to get the kids settled and for the two of us to figure ourselves out as adults”. She stated “It is so important to each member of my family to allow [the applicant] to be given his visa back. His children need him, his mother needs him and I need him here. I don’t want my children to be without a father. Le already has no father and its hard for him, his father calls when he wants but he is not around. [The applicant] is taking on that role for him. [The applicant] needs to be able to meet his daughters and be there for them when they are growing up. All of his kids need that. Though his connection with [AH] is awkward, it is something that we have to embrace as a couple because he and his children there also need each other”. “Without [the applicant] we will struggle to get by. I find it difficult to think of my children’s life without their father in it and that is not something I want to put them through”. “I cannot overstate how important it is for our family to have [the applicant] remain with us in Australia and see that he is a good man who is trying his best for all of us”.
On the basis of the evidence the Tribunal is satisfied that the applicant has a genuine love and affection for each of his children and is genuinely committed to playing a positive parental role in their lives. The Tribunal acknowledges that the applicant has yet to physically meet the two youngest children but there is no doubt in the Tribunal’s mind that he has developed a connection with the children through the electronic contact he has maintained to this point in their lives and he is genuinely desperate to be able to meet them face to face and be able to develop his parental relationship with them. The Tribunal notes that the children are all still young and therefore the role the applicant has the potential to play in their lives up until the time they turn 18 is significant. The Tribunal is satisfied that the role the applicant is committed to playing in each of the children’s lives extends to emotional, financial and practical support and care to the extent the applicant is able to offer it. The Tribunal satisfied that the applicant is committed to playing a very similar role in the lives of AH’s two other children from a previous relationship, Cu and Zy. The Tribunal is satisfied that the applicant has assumed a father type relationship with each of those children also and has a genuine love and affection for them in that context. The applicant is also committed to providing each of them with emotional, financial, practical support and care to the extent he is able to do so.
The Tribunal is satisfied that in the event the applicant is denied the right to remain in Australia his capacity to continue to play a parental role in the lives of each of these children is very materially reduced. In the Tribunal’s view, despite a theoretical capacity to maintain a connection of some kind by electronic means, in the even the applicant is relocated to South Sudan it is highly unlikely that he will continue to play a significant parental type role in their lives given the extent of geographical dislocation, particularly against the backdrop of what has otherwise been an interrupted relationship and the challenges the applicant himself is likely to face in South Sudan. There is no suggestion that the children would be relocated back to South Sudan to live with the applicant and the Tribunal is satisfied that such an outcome is extremely improbable, as is the prosect of the children travelling to South Sudan to visit him, and certainly not on any regular basis.
In the Tribunal’s view, a decision which has the effect of denying the children the opportunity maintain and further develop their relationship with their father, and in the case of Cu and Zy, a father figure, is extremely serious and has the potential to have a life-long impact on each of the children. In addition, the inability for the applicant to be able to provide any meaningful support for either of AH and NM in the role in caring for the children will also have a significant adverse impact on each of the children, as well of course for AH and NM themselves.
For these reasons, the Tribunal is satisfied that a decision not to revoke the cancellation of the applicant’s visa would not be in the best interests of any of the children.
The Tribunal has given this consideration significant weight for each of Ay and Oc because it considers it likely that the applicant will play a direct and substantial role in their lives as they grow up given his likely physical proximity to them and his ongoing commitment to his relationship with their mother NM, and their joint intention to live together as a family as soon as they are able to secure a house of their own. In reaching this conclusion the Tribunal acknowledges that the applicant’s relationship with each of Ay and Oc has, up until this point in their lives, been significantly interrupted due to his incarceration, and in the case of Oc that extends to not yet having physically met her.
In the case of the South Australian based children Ma, Nv, Cu and Zy, the Tribunal has given this consideration somewhat less weight given that, in the Tribunal’s view, it is less likely that the applicant will play as direct a role in their day to day lives because of the applicant’s ongoing geographic separation from them, the fact that he is no longer in a relationship with their mother, AH, and also that AH has assumed the role of caring for the children day to day as a single parent and without the substantial assistance of the applicant. This is not to suggest that the applicant cannot or will not continue to play an important parental type role in each of their lives. The Tribunal is satisfied that the applicant is genuinely committed to doing so, but his capacity to do so is likely to be somewhat constrained due to the circumstances the Tribunal has identified.
On the basis of the evidence before it the Tribunal is satisfied that a decision not to revoke the cancellation of the applicant’s visa is also not in the best interests of NM’s other child, Le. The Tribunal has also given this consideration somewhat less weight given the different nature of the relationship the applicant has with Le. It is clear on the evidence that the applicant has not yet developed the same level of a father type relationship with Le. When describing his children the applicant does not mention Le. However, in his statement the applicant made clear his affection for Le. In her statement NM also emphasised the significance of the applicant’s relationship with Le given the otherwise absence of a father figure in his life. NM described the applicant’s relationship with Le as one that is developing. The Tribunal accepts this evidence. The Tribunal also accepts that Le has a level of special needs as a consequence of his ADHD condition and that having a father type figure in his life and someone to assist NM in his care will be particularly important for him for that reason also. The Tribunal is satisfied that if the applicant were to be removed from Australia this would very materially and adversely impact his capacity to play a positive and constructive role in Le’s life and that such an outcome would be to Le’s detriment. Again, while it is theoretically possible for the applicant to maintain contact with Le by electronic means in the event he is forced to relocate to South Sudan, given that his relationship with Le is still developing and for the reasons identified with respect to the other children, the Tribunal considers it improbable in those circumstances that the applicant would maintain a significant role in Le’s life. In the Tribunal’s view, such an outcome would be significantly adverse to Le’s best interests.
For these reasons, the Tribunal is satisfied that this consideration weighs very significantly in favour of a decision to revoke the cancellation of the applicant’s visa.
Expectations of the Australian community
Paragraph 8.4 of the Direction provides as follows:
1The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen as 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 allows such a non-citizen to enter or remain in Australia.
2In 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;
(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;
(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;
(f)worker exploitation.
3The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
4This 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.

The Direction’s wording in paragraph 8.4(4) above would appear to be an adoption of a line of Federal Court authority that considered the meaning to be given to the “expectations of the Australian community” in the context of the former Direction 79 including, in particular, the Federal Court’s decision in FYBR v Minister for Home Affairs.[3] Paragraph 8.4(4) of the Direction makes clear that the Tribunal is required to give consideration to the Government’s views of the expectations of the Australian community as a whole, as articulated in the Direction itself, and does not involve the Tribunal independently assessing the community’s expectations in a particular case.[4]
[3] [2019] FCAFC 185.
[4] See also PYDZ v Minister for Immigration, Citizenship. Migrant Services and Multicultural Affairs [2021] FCA 1050 at [82].
In addressing this consideration, the Tribunal has had regard to the Government’s stated view of the expectations of the Australian community. The Tribunal is satisfied that the applicant’s offending is very serious and of a nature such that the Australian community would expect that the applicant not continue to hold his visa. This conclusion is reinforced by the Tribunal’s assessment that there remains a residual risk of the applicant relapsing back into drug and alcohol abuse and reoffending that is not so low as to be minimal or negligible. This conclusion is also further reinforced by the fact that the applicant’s offending includes breaches of family intervention orders and also on the basis that the Tribunal is satisfied that the applicant engaged in forms of family violence involving his mother and former partner which gave rise to the intervention orders being put in place as described earlier in these reasons.
In determining the weight to be given to this consideration the Tribunal has also had regard to:
(a)the applicant’s broader personal circumstances including, in particular, his difficult upbringing;
(b)the protective factors against a further relapse back into drug and alcohol abuse as identified in the section dealing with the protection of the Australian community;
(c)the applicant’s stated commitment, which the Tribunal accepts as being genuine, to undertake drug and alcohol and men’s behavioural counselling on his release with a view to mitigating his risk of relapsing back into drug and alcohol abuse and reoffending; and
(d)the significant consequences that a decision to remove the applicant to South Sudan is likely to have for the applicant personally and also for other members of his family including his children, mother and current partner.
For these reasons, the Tribunal is satisfied that this consideration weighs against a decision to revoke the cancellation of the applicant’s visa and gives this consideration a moderate weighting.
Other considerations
Paragraph 9 of the Direction sets out a non-exhaustive list of other considerations to be taken into account including:
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)links to the Australian community.
International non-refoulement obligations
The Tribunal materials include written representations made on behalf of the applicant that were prepared by Refugee Legal. Among other things, those representations include submissions regarding the potential for the Australian Government to be in breach of its international non-refoulement obligations in the event of a decision being made in this matter that requires the applicant to relocate to South Sudan. It was submitted on behalf the respondent that it is open to a decision-maker in respect of this matter to defer a consideration of any claim that the applicant may be owed international non-refoulement obligations on the basis that he is able to apply for a protection visa. During the course of the hearing in this matter the High Court delivered its judgement in Plaintiff M1/2021 v Minister for Home Affairs (“M1”) which considered this question in the context of a delegate making a decision as to whether or not to revoke a cancelled visa.[5] The Tribunal provided the parties with the opportunity to make post-hearing submissions in relation to the implications flowing from the High Court’s decision in M1. In its post-hearing submissions the respondent submitted that the decision in M1 further supported the respondent’s previous submission that a decision-maker in the position of the Tribunal is entitled to defer assessment of whether an applicant is owed non-refoulement obligations where an applicant is able to apply for a protection visa. In the present case the applicant has indicated his intent to make such an application although to this point he has not done so. The respondent further submitted that notwithstanding this position, in accordance with the Full Court in Minister for Home Affairs v Omar [2019] FCAFC 188, the decision-maker would still nonetheless be required to consider the underlying claims of harm made by the applicant in the context of impediments if removed.
[5] [2022] HCA 17.
While the Tribunal accepts the respondent’s contention that in his direct evidence the applicant did not expand significantly in respect of his claims to fear harm if relocated to South Sudan, the applicant did address those claims in more detail in his written statement which is before the Tribunal. In addition, the written submissions prepared on his behalf by Refugee Legal also addressed in some detail the applicant’s claims of harm and as well as the potential for Australia’s international non-refoulement obligations to engaged. In the Tribunal’s view, the decision in M1 does not prohibit the Tribunal from considering the claims as put by or on behalf of the applicant in considering whether there is another reason why the applicant’s visa cancellation should be revoked including the question of whether Australia’s intentional non-refoulement obligations might be breached. To the contrary, the High Court acknowledged that it is entirely proper for a decision-maker to do so and the Tribunal has proceeded on that basis.
It was put on behalf of the applicant that he is a person who engages Australia’s international non-refoulement obligations under various international treaties due to his status as a refugee and due to the risk of harm he would be exposed to should he be required to relocate to South Sudan. Those treaties include the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (the “Refugee Convention”), the 1984 Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (the “CAT”) and the 1966 International Covenant on Civil and Political Rights (the “ICCPR”). It was put on behalf of the applicant that a decision that requires the applicant to be relocated to South Sudan would put Australia in breach of its international non-refoulement obligations.
It was submitted on behalf of the applicant that:
(a) the applicant faces a real chance of being persecuted if relocated to South Sudan due to his race, religion, nationality, political opinion or membership of a particular social group which would engage Australia’s non-refoulement obligations under the Refugee Convention; and
(b) the applicant faces a real chance of being subjected to torture or crule, inhumane or degrading treatment or punishment or death if relocated to South Sudan which would engage Australia’s non-refoulement obligations under the CAT or the ICCPR.
It is was further submitted on behalf of the applicant that the applicant fears harm if relocated to South Sudan on account of:
(a) his prolonged departure from the country which result in an almost entire lack of familiarity with local customs, social norms or language;
(b) a lack of familial or social connections of any kind;
(c) his ethnicity on account of his Dinka ethnicity;
(d) his imputed political opinion on account of his Dinka ethnicity.
(e) his religion on account of his Christian faith;
(f) his membership of a social group as a consequence of perceived wealth and association as a foreigner; and
(g) his membership of a social group as a consequence of being male and at risk of forcible recruitment by armed groups.
It was submitted that the fear of harm due to the factors identified above give rise to a risk that the applicant would be harmed directly as well as a risk that he would suffer discrimination that will mean that he is more susceptible to serious generalised risk of criminal or militant activities or suffering the adverse effects of famine and “the other humanitarian crises that are rampant throughout South Sudan”.
The Tribunal accepts the applicant’s evidence that he was born in the former province of Kordofan, Sudan, and that he is Christian and of Dinka ethnicity. The respondent contends that the applicant’s birth-place is in an area that is now known to form part of South Sudan. The Tribunal accepts the respondent’s contention in this respect. The Tribunal also accepts the applicant’s evidence that the applicant departed Sudan at the age of approximately nine and has not returned since that time. In addition, the Tribunal accepts the applicant’s evidence that he has not maintained any substantive connection with anyone who currently resides in South Sudan. In his direct evidence the applicant told the Tribunal that he fears harm if he is forced to relocate to South Sudan as he does not speak the language well and he does not know anyone there. The applicant responded to the Tribunal’s direct questions on this point in what could reasonably be described as being in broad terms. He told the Tribunal that he had a fear that he could be robbed or held to ransom or taken advantage of in some way as a consequence of being recognised as a foreigner or someone less familiar with the language. The applicant denied that his religion would be likely to represent a risk of harm in South Sudan although he thought it could if he travelled to the North. In response to a direct question the applicant stated that he believed he could be at risk of harm due to his Dinka ethnicity because of ongoing tribal conflict. The applicant told the Tribunal that he has no idea where within South Sudan he would live if relocated there as he does not have any connection to the country or any family or social ties there.
In his written statement the applicant states:
If I was forced to return to Sudan I would fear for my safety. I have not been in Sudan since I was a child. We have no family there, I know no one and nothing about the place. I believe I may be a target as I am from a Western country and I am Christian… I understand some of the language but cannot speak it well at all. I don’t believe that many people speak English there either, so I would stand out and would have no chance of finding a job or building a life for years.
On the basis of the DFAT Country Information Report on South Sudan dated 5 October 2016, the Tribunal is satisfied that there continues to be outbreaks of intercommunal violence, particularly in the more remote areas as well as neighbouring countries, although there has been some reduction in ethnic based violence within the capital city of Juba in particular. The Tribunal is satisfied that the general security situation in South Sudan continues to be extremely volatile and unstable. The Tribunal accepts the submission on behalf of the applicant that the Amnesty International Report for 2020/2021 supports a conclusion that the current state of affairs in South Sudan continues to be extremely dire with high levels of political instability, intercommunal and generalised violence. The Australian Government Smartraveller Guide for South Sudan last updated on 28 October 2021 (the “Guide”) maintains an overall advice level of “Do not travel to South Sudan, including Juba, due to instability and ongoing conflict”. The Guide advises that “fighting and instability continues across the country, the situation is volatile and can worsen without warning. Border areas are especially dangerous. If you’re in South Sudan, leave as soon as possible. Terrorist attacks could occur without warning…. Kidnapping, murder, shootings, home invasions, armed robbery, carjacking and sexual assault are common throughout South Sudan, including Juba”. The Guide also notes that “thousands of people have been killed in South Sudan since violence began in December 2013. Intercommunal and criminal violence and fighting between armed groups continues across the country there is a serious risk of attacks on civilians. National or international events could prompt attacks on foreigners. Armed conflict, military activity, tribal and other violence make border areas especially dangerous”. The Guide also acknowledges an increase in anti-foreigner sentiment.
On the basis of the evidence before it, the Tribunal is satisfied that violent crime such as kidnapping, murder, shootings, home invasions, armed robbery and carjacking continued to be widespread, including in the capital city of Juba. The Tribunal is satisfied that if the applicant is forced to relocate to South Sudan he would be exposed to these risks and that as a consequence there would be a real chance that the applicant would suffer serious harm, including serious physical harm and possibly death.
The Tribunal is also satisfied on the basis of the information included in the Country Information Report that there continues to be evidence of arbitrary arrest, and detention and other human rights abuses including extra-judicial killings. Again, the Tribunal is satisfied that if the applicant is forced to relocate to South Sudan he would also be exposed to such risks.
In the Tribunal’s view, the risk that the applicant would face in this respect is greater than that faced by the general population of South Sudan as a consequence of his lack of familiarity with the country and a reduced level of awareness of local customs and social, norms, a lack of familial or social connections and a reduced level of fluency in the local language. The Tribunal accepts the applicant’s direct evidence that it is less likely that the applicant’s risk of suffering harm is exacerbated as a consequence of his Christian faith within South Sudan itself. However, while the Tribunal accepts that the applicant’s Dinka ethnicity places him within the largest ethnic group in South Sudan, it is nonetheless satisfied that the applicant continues to be exposed to a significant risk in South Sudan due to his Dinka ethnicity as a consequence of the high levels of intercommunal violence that continue to exist, in particular, in the remote areas of the country and also in border areas. The Tribunal accepts that the applicant would also be exposed to a risk of serious harm due to imputed political opinion in connection with his Dinka ethnicity in these areas. The Tribunal is satisfied that if the applicant were to relocate to South Sudan he would be readily identifiable as being of Dinka ethnicity with no familial, social or community connections.
The Tribunal is also satisfied that as a person who had recently returned from the West with a lack of established support networks and a lack of familiarity with how the country operates the applicant is likely to be more exposed than the general population of South Sudan to the potential risk of serious violent crime or civil unrest, including in the capital city of Juba. Again, the Tribunal is satisfied that if the applicant were to relocate to South Sudan he would be readily identifiable as a returnee from the West and a person who is less familiar with local cultural practices and behaviours. The Tribunal also is satisfied that given the applicant’s distinguishing characteristics with the applicant is likely to be at a heightened risk of societal discrimination and violence generally in South Sudan, including in the capital city of Juba.
Having regard to the conclusions set out above the Tribunal finds that there are substantial grounds for believing that in the event the applicant is relocated to South Sudan there is a real chance he will suffer serious harm for Convention based reasons. The Tribunal is satisfied that Australia’s international non-refoulement obligations are engaged in respect of the applicant both under the Refugee Convention as well as the ICCPR.
In light of these conclusions, the Tribunal has considered the consequences of a decision to not revoke the cancellation of the applicant’s visa including that:
(a) the applicant would be subject to removal from Australia as soon as it is reasonably practicable for that to occur, and consequently could be exposed to the risk of harm identified above in breach of Australia’s international non-refoulement obligations;
(b) in the event the applicant is for any reason unable to be relocated to South Sudan the applicant would be exposed to an extended period of immigration detention;
(c) it would be open to the Minister to consider alternative management options such as the possibility of granting a visa under section 195A of the Act but again the applicant would be exposed to ongoing immigration detention during the period in which such options were being considered; and
(d) the applicant would not be subject to immediate removal from Australia if he applied for and was granted protection visa but in the event the applicant made such an application he is also likely to spend an extended period in immigration detention pending the outcome of the application.
For these reasons, the Tribunal satisfied that this consideration weighs very heavily in favour of the revocation of the mandatory cancellation of the applicant’s visa.
Extent of impediments if removed
The Tribunal is satisfied that the applicant is likely to face a number of very significant impediments if removed to South Sudan. In the Tribunal’s view, those impediments are likely to be further exacerbated by the fact that he would be recognised as a western returnee with a lack of cultural familiarity, less fluency in the local language and with no family or other social support networks to fall back on. The impediments are also likely to be further exacerbated by the extremely volatile and unstable economic and security situation in South Sudan.
The Tribunal is satisfied that the applicant would face significant difficulty in obtaining accommodation, securing employment and accessing government services without established support networks. In reaching this conclusion the Tribunal acknowledges that there was evidence in the DFAT Country Information Report of basic and ad hoc health and education services in South Sudan and also the presence of NGOs who provide some assistance to citizens including recent returnees.
The Tribunal is satisfied that the economic conditions currently being faced by South Sudan continue to be extremely challenging. While it is somewhat dated the current DFAT Country Information Report for South Sudan notes a number of extremely serious economic challenges confronting the country. In 2015 South Sudan was reported to have an annual per capita income of approximately US $790 and that 57.2% of the population are at or below the poverty line.
The Tribunal satisfied that in the short term the applicant is likely to find obtaining employment difficult again due to his lack of a support network, his less fluency in the local language and in light of the difficult general economic conditions currently being experienced in South Sudan. However, the Tribunal is satisfied that the applicant has the potential for better medium to long-term employment prospects given his relative young age and good physical health and also acknowledging the applicant’s reasonable level of education and prior work history in Australia.
The Tribunal is satisfied that the applicant would be required to undertake his transition into life in South Sudan without the support of his partner and other immediate family who all reside in Australia. The Tribunal accepts that if the applicant is forced to relocate to South Sudan it is highly likely that he will have very limited future contact with other members of his family based in Australia. The Tribunal is satisfied that the applicant is likely to experience very significant emotional hardship in his transition to life in South Sudan in these circumstances.

In his written statement the applicant expressed fears of the challenges he would face if relocated to South Sudan. He stated that:
I have not been in Sudan since I was a child. We have no family there, I know no one and nothing about the place.
.. I understand some of the language that cannot speak it well at all. I don’t believe that many people speak English there either, so I would stand out and would have no chance of finding a job or building a life for years.
Importantly, I wouldn’t be able to see my children again. We don’t have the luxury of having money will be able to travel. My children would be left here with no love or support or contact me. This is a very difficult thought for me, considering my background.
Australia has been my home for more than half my life I came here when I was 11 years old and am 33 now. It’s all I know.
The applicant’s mother also expressed her concerns if the applicant was relocated to South Sudan in her written statement as follows:
As a mother my children are the most important thing to me. I beg the Australian government not to take [the applicant] back to Sudan. There is no logic in doing so. It came here when he was very young. He knows nothing of Sudan. All of our relatives are lost, there is nobody there and he would have nowhere to start if he went back. Australia is his home.
For these reasons, the Tribunal is satisfied that the applicant would face very significant impediments on his return to South Sudan. Accordingly, this consideration weighs heavily in favour of a decision to revoke the cancellation of the applicant’s visa.
Impact on victims
There was no direct evidence from the applicant’s victims in respect of the matter before the Tribunal. Accordingly, this consideration weighs neither for nor against a decision.
Links to the Australian community
Strength, nature and duration of ties to Australia
The applicant first arrived in Australia in 1999 as an 11-year-old and has resided in Australia ever since. The applicant clearly considers Australia to be his home.
The applicant has significant family ties to Australia including his mother and siblings, his current partner, NM, his former partner, AH, and his children.
The Tribunal has already addressed the interests of the children earlier in these reasons.
The Tribunal is satisfied that a decision not to revoke the cancellation of the applicant’s visa will have a significant adverse impact on the applicant’s current partner, NM, and his mother.
The Tribunal did not have the benefit of hearing directly from NM or the applicant’s mother but they did each provide a statement that was included in evidence before the Tribunal. The Tribunal also heard directly from the applicant in respect of the impact his removal from Australia is likely to have on them.
The applicant’s mother stated that she considered the applicant to be the “number one” of her children in the sense that he is the person on which she has always relied. She noted that the applicant had helped to look after his siblings from the time they were very young and that the applicant continues to assume responsibility with respect to his siblings. She stated that the applicant has a good relationship with his siblings and has always endeavoured to provide them with advice and show them the right things to do. She stated that she works part-time as a cleaner in a nursing home and that she finds work hard because of her advancing age and also due to a bad back. She stated that she works as much as she is able to but she does appreciate the support that the applicant gives from time to time.
In his direct evidence the applicant told the Tribunal that he felt a responsibility to look after his mother because she does not have a husband or partner to help out around the house and to provide assistance financially. He also stated that he believed his mother needed his assistance because of practical difficulties she faced due to her limited English.
The Tribunal is satisfied on the basis of the evidence before it that the applicant’s mother relies on the applicant for practical support given the absence of a partner, her ageing years and her bad back as well as due to her limited English. The Tribunal is also satisfied that in the event the applicant is forced to relocate from Australia the applicant’s mother would be denied that practical support and that it would have a significant adverse impact on her.
The Tribunal was particularly concerned about the impact the applicant’s removal from Australia would have for his current partner, NM. On the basis of the evidence, the Tribunal is satisfied that NM is committed to her relationship with the applicant and is relying on the applicant to provide emotional, financial and practical support to her and to assist in the raising of their children and also her son from a previous relationship, Le.
While there was evidence that NM receives some level of support from her mother, in the Tribunal’s view that support is in no way a substitute for the type of support the applicant would be able to provide her. In the event that the applicant is forced to relocate from Australia NM would be left to raise her children without the in-person, practical support of the applicant. NM made it clear in her statement that she has no intention of relocating to South Sudan and has no capacity to travel to South Sudan on any kind of a regular basis. Given those circumstances, if the applicant is forced to relocate it is highly unlikely that the applicant would be in a position to be able to provide any substantive practical support to NM in the raising of the children or for her personally. Such an outcome would have a real and long-lasting adverse impact on NM. This is of particular concern to the Tribunal.
There was limited evidence before the Tribunal of the applicant’s ongoing relationship with his siblings although the Tribunal does accept that the applicant has played a significant role in respect of his sibling group and on that basis is satisfied that a decision requiring the applicant’s removal from Australia would have an adverse impact on the applicant’s siblings.
There was also limited evidence before the Tribunal in relation to the impact the applicant’s removal from Australia would have for the applicant’s former partner AH personally. The Tribunal has not given any significant weight to this consideration.
There was limited evidence before the Tribunal in relation to a broader positive contribution the applicant has made to the Australian community although the Tribunal accepts that the applicant has made a limited contribution to the community through his employment and also some contribution in a volunteer capacity.
For these reasons, and in particular due to the impact the applicant’s removal would have on the applicant’s current partner, the Tribunal is satisfied that this consideration weighs significantly in favour of the revocation of the cancellation of the applicant’s visa.
Impact on Australian business interests
There was no evidence of any impact on Australian business interests. Accordingly, this consideration weighs neither for nor against a decision.
CONCLUSION
The Tribunal is satisfied that the applicant does not pass the character test set out in section 501(6) of the Act. Therefore, the Tribunal is required to consider whether or not to exercise the residual discretion in section 501CA(4)(b)(ii) of the Act.
There are a number of considerations that weigh against revocation of the cancellation of the applicant’s visa.
The Tribunal is satisfied that the applicant’s offending history involves very serious offending another serious conduct including multiple breaches of family intervention orders and also includes acts of family violence against his mother and former partner. The Tribunal has been mindful of the fact that there are some changed circumstances as well as other protective factors that reduce to some degree the Tribunal’s assessment of the risk of the applicant relapsing back into drug and alcohol abuse and reoffending. The Tribunal also acknowledges that the expectations of the Australian community consideration weighs against revocation.
Counterbalancing this are a number of considerations that weigh in favour of the revocation of the cancellation of the applicant’s visa. The Tribunal has assessed the best interests of the children, international non-refoulement obligations, strength of ties to the Australian community and the impediments on removal considerations in favour of revocation. The Tribunal is satisfied on the basis of the evidence that a decision to remove the applicant from Australia would be materially adverse to the best interests of each of the relevant children. There is no question in the mind of the Tribunal that if the applicant is removed to South Sudan it is likely to have profound and lifelong consequence for the relationship that each of the applicant’s children will have with their father and that the applicant’s “step-children” and Le will have with a significant father figure in their life. This is of serious concern to the Tribunal.
In addition, the implications for the applicant’s broader family and his mother and especially his current partner are also significant. In the event that the applicant is removed from Australia the applicant’s mother will lose the benefit of the support of her eldest son and the child she has come to rely upon the most. The applicant’s current partner, NM, will lose the benefit of the personal support of a loving partner and the assistance of the applicant in raising of her children. This is also of significant concern to the Tribunal.
The Tribunal is also satisfied that if the applicant is removed to South Sudan he is likely to face very significant impediments in establishing himself there and, for the reasons set out, will be exposed to a real chance of serious harm including for Convention based reasons. The Tribunal is also satisfied that a decision that results in the removal of the applicant to South Sudan will put Australian in breach of its international non-refoulement obligations. In the Tribunal’s view, this consideration together with the other considerations weighing in favour of revocation are determinative of the matter.
For these reasons, the Tribunal is satisfied that the correct and preferable decision in the circumstances of this case is that the decision under review should be set aside and that it be substituted with a decision to revoke the cancellation of the applicant’s visa.
DECISION
The Tribunal sets aside the decision made by the delegate of the respondent dated 28 February 2022 and in substitution decides to revoke the cancellation of the applicant’s Refugee (Class BA) (Subclass 200) visa.

I certify that the preceding 140 (one hundred and forty) paragraphs are a true copy of the written reasons for the decision of The Hon. Matthew Groom, Senior Member

...............................[SGD]........................................
Associate
Dated: 22 June 2022

Dates of hearing: 12 and 13 May 2022

Applicant: Mr Tong Akon Mabuoc

Advocate for the Respondent: Mr Adam Cunynghame

Solicitor for the Respondent: Sparke Helmore

[2022] AATA 1780

20 May 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction

Remedies

Dates of hearing:	12 and 13 May 2022
Applicant:	Mr Tong Akon Mabuoc
Advocate for the Respondent:	Mr Adam Cunynghame
Solicitor for the Respondent:	Sparke Helmore