Angok and Minister for Home Affairs (Migration)

[2019] AATA 112

Angok and Minister for Home Affairs (Migration) [2019] AATA 112 (11 February 2019)

Division:GENERAL DIVISION

File Number(s):      2018/6943

Re:Michaeil Kon Arkangelo Angok

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member M Griffin QC

Date:11 February 2019

Place:Sydney

The decision of the Respondent dated 21 November 2018, to refuse to revoke the Applicant’s visa cancellation decision made under s 501(3A) of the Migration Act 1958, is affirmed.

.........................[sgd]...............................................

Senior Member M Griffin QC

CATCHWORDS

MIGRATION – Revocation of visa cancellation – Applicant failed to pass the character test – whether there is another reason why the decision-maker should exercise its discretion to revoke the original visa cancellation decision – Ministerial Direction No. 65 applied – primary considerations – protection of Australian community from criminal or other serious conduct – best interests of minor children in Australia – expectations of Australian community – other considerations – international non-refoulement obligations – extent of impediments if removed – strength, nature and duration of ties – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth)

CASES

Aciek and Minister for Home Affairs [2018] AATA 2755

Ali v Minister for Immigration and Border Protection [2018] FCA 650

SECONDARY MATERIALS

Direction No. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

REASONS FOR DECISION

11 February 2019

1. The Applicant seeks review of a decision of a delegate of the respondent (Minister) dated 21 November 2018 not to revoke, pursuant to s.501CA(4) of the Migration Act 1958 (Cth) (Act), the mandatory cancellation of the Applicant’s Class XB (Subclass 200) Refugee visa (the visa).

   BACKGROUND

2. The Applicant is a 23 year old national of South Sudan who first arrived in Australia at age 9 on 15 September 2005 as the holder of a Class XB-200 Refugee visa. He has not departed Australia since that time.

3. On 2 March 2016, the Department issued the Applicant with a notice that his visa had been cancelled under s.501(3A) of the Act, and on 30 March 2016, the Applicant made representations seeking revocation of the cancellation.

4. On 21 November 2018, a delegate of the Minister decided under s.501CA(4) of the Act not to revoke the mandatory cancellation.

5. On 27 November 2018, the Applicant applied to the Tribunal for review of the delegate’s decision.

6. On 18 February 2016, the Applicant was convicted of four counts of Aggravated sexual intercourse with a person over 14 years and under 16 years and sentenced to an aggregate term of imprisonment of 45 months, with a 2 year non-parole period. In fact, he served a large part of that sentence in custody.

7. The Police records also reveal that the Applicant’s history whilst a minor involved many incidents of violence, drug use and failure to comply with Police instructions. The incidents resulted in cautions being issued.

   ISSUES

8. The issue in this review is whether the original decision to cancel the Applicant’s Visa should be revoked pursuant to section 501 of the Migration Act 1958 (the Act). The Tribunal may revoke the original decision if the Tribunal is satisfied:

   (a)That the Applicant passes the character test as defined by section 501 of the Act; or

   (b)

   There is another reason why the original decision should be revoked

   
   

   (s 501CA(4)(b)).

   RELEVANT LEGISLATION AND POLICY

9. Ministerial Direction No. 65 - Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (Direction 65), the relevant paragraphs of which are set out below, describes the framework within which the Tribunal‘s discretion is to be exercised in this case.

10. Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: see s 501CA(1).

11. Subsection 501CA(4) provides that:

    1 The Minister may revoke the original decision if:

    (a) the person makes representations in accordance with the invitation;

    and

    (b) the Minister is satisfied:

    (i) that the person passes the character test (as defined by section 501); or

    (ii) that there is another reason why the original decision should be revoked.

12. The character test is defined in s.501(6) of the Act. Relevantly, a person will not pass the character test if a court in Australia has convicted the person of one or more sexually based offences involving a child (s.501(6)(e)(i)). A person will also fail the character test if they have a ‘substantial criminal record’: s.501(6)(a). The phrase ‘substantial criminal record’ is defined in s.501(7) and includes circumstances where a person has been sentenced to a term of imprisonment of 12 months or more.

13. Subsection 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.

14. The Minister has made written directions pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4) (Direction 65). Section 1 of Direction No 65 sets out preliminary matters, including general guidance and principles for decision-makers, which relevantly includes that:

    (a)the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens (cl 6.2(1));

    (b)the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes in Australia or elsewhere (cl 6.3(2));

    (c)a non-citizen who has committed a serious crime, including of a violent nature, and particularly against vulnerable members of the community such as minors, should generally expect to forfeit the privilege of staying in Australia (cl 6.3(3));

    (d)in some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa (cl 6.3(4));

    (e)while Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, or contributing to, the Australian community for only a short period time, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age (cl 6.3(5)); and

    (f)the length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused (cl 6.3(7)).

15. Part C of Direction 65 identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen's visa. It comprises three "primary considerations" and several specified, but non-exhaustive, "other considerations", which must be taken into account.

16. Pursuant to Part C of Direction 65, the Tribunal must, to the extent that they are relevant to this case, take into account three primary considerations and other considerations. Primary considerations should generally be given greater weight than the other considerations and one or more primary considerations may outweigh other primary considerations. These principles are of course dependent upon the facts and circumstances of each case.

17. The three primary considerations are:

    (a)Protection of the Australian community from criminal or other serious conduct;

    (b)The best interests of minor children in Australia; and

    (c)Expectations of the Australian community.

    Primary Consideration 1 – Protection of the Australian community from criminal or other serious conduct

18. Paragraph 13.1 of Direction 65 provides:

    1 When considering protection of the Australian community, decision-makers should have regard to the principle 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. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.

    2         Decision-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.

19. The two limbs of paragraph 13.1(2) that the Tribunal must consider when assessing the protection of the Australian community are set out below.

    The nature and seriousness of the conduct

20. Sub-paragraph 13.1.1 of Direction 65 provides a list of factors to be considered in determining the nature and seriousness of a person's criminal offending or other conduct to date, which includes:

    (a)the principle that violent and/or sexual crimes are viewed very seriously (sub­paragraph 13.1.1(1)(a));

    (b)the principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), government representatives or officials due to the position they hold, or in the performance of their duties, are serious (sub-paragraph 13.1.1(1)(b));

    (c)the sentence imposed by the courts for a crime or crimes (sub-paragraph 13.1.1.(1)(c));

    (d)the frequency of the non-citizen's offending and whether there is any trend of increasing seriousness (sub-paragraph 13.1.1.(1)(d));

    (e)the cumulative effect of repeated offending (sub-paragraph 13.1.1.(1)(e));

    (f)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (sub-paragraph 13.1.1.(1)(g)); and

    (g)where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention is serious (sub-paragraph 13.1.1.(1)(h)).

    The risk to the Australian community

21. Paragraph 13.1.2 of Direction 65 states that decision makers should have regard to the following:

    (a)the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were repeated, is so serious that any risk that it may be repeated is unacceptable;

    (b)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

    (c)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending.

    Primary Consideration 2 – Best interests of minor children in Australia affected by the decision

22. The considerations include:

    (a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

    (b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

    (c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

    (d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

    (e)Whether there are other persons who already fulfil a parental role in relation to the child;

    (f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

    (g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

    (h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

    Primary Consideration 3 – Expectations of the Australian community

23. Paragraph 13.3 of Direction 65 provides:

    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa. Decision-makers should have due regard to the Government's views in this respect.

24. The principles to be applied, as set out in paragraph 6.3 of Direction 65, state that the right of a non-citizen to remain in Australia is a privilege conferred in the expectation that he or she will be law-abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australia community. It is also the expectation of the Australian community that a visa should be cancelled if the holder commits serious crimes (sub-paragraph 6.3(2) of Direction 65).

    Other Considerations

    International non-refoulement obligations

25. Considerations include:

    (a)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has Convention and Protocol non-refoulement obligations.

    (b)The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen's visa.

    (c)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).

    (d)Where a non-citizen makes claims which may give rise to international non­refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.

    (e)Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated.

    Strength, nature and duration of ties

26. Considerations include:

    (a)how long the non-citizen has resided in Australia, the period of offending, positive contributions to the Australian community.

    (b)the strength, duration and nature of any family or social links with Australian citizens, including the effect of non-revocation on the non-citizen’s immediate family.

    Impact on Australian business interests

27. Direction 65 notes an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

    Impact on victims

28. Paragraph 14.4 of Direction 65 provides:

    'Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for visa cancellation has been afforded procedural fairness.'

    Extent of impediments if removed

29. Extent of impediments if removed requires consideration of the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account: age and health; whether there are substantial cultural barriers; and the availability of any social, medical and/or economic support.

    DISCUSSION

    The Character Test

30. The Applicant has been sentenced to 45 months imprisonment and, therefore, has a “substantial criminal record”. He fails the character test.

31. The determinative issue in this matter is whether there is another reason why the cancellation should be revoked.

    Protection of the Australian community (past conduct and future risk)

32. This factor involves consideration of (a) the nature and seriousness of the Applicant’s conduct to date and (b) the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.

    Nature and seriousness of conduct

33. Paragraph 13.1.1 of Direction 65 sets out the factors to be taken into account. Taking into consideration the factors relevant to the present application, the Applicant’s offences are particularly serious sexual offences committed against a minor in the company of others (paragraph 13.1.1(1)(a) and (b)). Furthermore, the Tribunal considers the age difference between victim and Applicant as a further exacerbating factor.

34. On 8 February 2014, the Applicant and three co-offenders were sitting outside of a house. The victim, her friend and her friend’s boyfriend were sitting outside of a nearby house. One of the co-offenders, MS, approached the victim to speak with her. MS was 16 years and 9 months at the time, and attended the same school as the victim. MS and the victim had sexual intercourse in a nearby park. The Applicant and the other two co-offenders approached MS and the victim while they were having intercourse and there was talk amongst the four offenders about “taking turns”. One offender put his penis in the victim’s mouth while MS was having intercourse with her. When MS stopped having intercourse with the victim, the Applicant had sexual intercourse with the victim and another offender put his penis in her mouth. During the incident, the victim heard one of the men say, “Let me have a piece of that”. The victim was about 14½ years old at the time.

35. The sentencing judge was satisfied beyond reasonable doubt that the Applicant was the second person to put his penis in the victim’s vagina, which occurred simultaneously with the act of oral intercourse performed by one of the co-offenders.

36. The Respondent submitted that the evidence supports a finding that the intercourse was non-consensual. The sentencing judge was unable to make such a finding. The Tribunal, likewise, is independently of the view that no such finding should properly be made. The issue of consent does not detract from the utter seriousness of the offences, in the Tribunal’s view.

1. The sentences imposed on him, in the absence of any prior sexual offending, are also indicative of the level of seriousness of the offences, in the Tribunal’s opinion, such that the Tribunal views those offences, absent any other considerations, as being worthy on non-revocation of the Delegate’s order (Direction 65 13.1.2(1)).

   Risk to the Australian community

2. In assessing whether the Applicant represents an unacceptable risk of harm to the Australian community, regard must be had to paragraph 13.1.2 of Direction 65, which provides that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Decision-makers must have regard, cumulatively, to:

   (a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

   (b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the Applicant re-offending.

3. In the Tribunal’s opinion, the nature of harm to victims if the Applicant were to re-offend in the future would be extremely serious.

4. The sentencing judge accepted that the Applicant was genuinely remorseful and considered that his rehabilitation prospects were good. Consultant psychologist Tim Watson-Munro provided a report in January 2019 to similar effect. The Applicant was assessed as part of the CUBIT custody-based residential therapy program to be in the moderate-high risk category in comparison to other sexual offenders.

5. The Respondent submitted that, according to the report, people in the same risk profile as the Applicant have been seen to re-offend sexually at 5.5% and generally at 19.6% over two years, and sexually at 8.1% and generally at 30.3% over four years.

6. It goes without saying, that the assessment of risk to the Australian community should not be undertaken based upon whim, fanciful speculation or prejudice, nor however, in this case, does this Tribunal regard the assessment of the Applicant committing offences in the future as properly based on so called “statistics of re-offending according to offender profile”.

7. The Tribunal rejects the Respondent’s submissions based upon this method and which are included in the CUBIT report.

8. Risk and its assessment must be based upon accepted objective evidence, properly drawn inferences and credible subjective evidence.

9. In this case, the author of the CUBIT report was not called to give evidence, or for that matter, be available for cross-examination by the Applicant or questioning by the Tribunal. The Tribunal accepts the opinion by Mr Watson-Munro that the Applicant has suffered long-standing depressive illness. The CUBIT report writer singularly failed either to appreciate this or refer to it as a potential relevant factor.

10. Furthermore, the report, prepared as it was for sentencing proceedings in 2015, is not a satisfactory contemporary report. The Tribunal, therefore, places little weight on it and the conclusions expressed therein.

11. As for the Watson-Munro report of January 2019, although contemporary, the author, in the Tribunal’s opinion, was insufficiently equipped with certain relevant facts which casts doubt upon the conclusion and opinion expressed as to the Applicant’s rehabilitation and low risk of re-offending.

12. Although the Tribunal accepts Watson-Munro’s view that the periods in prison and detention custody have had a salutary effect on the Applicant, this may well be of temporary duration having regard to other factors discussed below and the Tribunal, therefore, places little weight on this opinion and the ultimate conclusions reached.

13. The contrary view that the Applicant reformed is supported by objective evidence from prison and detention centre records which disclose that the Applicant has demonstrated violent, aggressive and oppositional behaviour whilst in custody. Furthermore, the Applicant admitted taking a “contraband substance” (the Applicant’s words) whilst in custody on numerous occasions. In evidence, the Applicant accepted that this was the opioid, subuxone. (This is a material fact which the Applicant failed to disclose to the psychologist Watson-Munro.)

14. Under searching cross-examination, evidence showed that the Applicant continued to demonstrate behaviour in custody that was impulsive and uncontrolled.

15. Even allowing for the “hot house” institutional environment, the Tribunal concludes that the Applicant ultimately is an unacceptable risk of committing further offence in the future.

16. The protection of the Australian community weighs heavily against revoking the mandatory cancellation of the Applicant’s visa.

    The best interests of minor children in Australia

17. The Applicant has a number of nieces and nephews in Australia who are minors. Less weight should be given to this consideration as he does not have any parental responsibility for them although the Applicant, it is accepted, plays a limited role in all their lives. This consideration weighs in favour of revocation, but it should be given limited weight.

    Expectations of the Australian Community

18. Paragraph 13.3(1) of Direction 65 indicates that cancellation may be appropriate simply because the nature of the offences is such that the Australian community would expect that the person should not hold a visa, or where a non-citizen has breached the trust provided by the Australian community that its rules will be obeyed while living in Australia. In the Tribunal’s opinion, given the nature of the Applicant’s sexual offending against a minor in company of others, the Australian community would expect that the Applicant should not hold a visa.

19. The Australian community may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life. The Applicant has resided in Australia since age 9.

20. Even taking into account the Applicant’s traumatic childhood and psychological problems, given the nature of his offences, the risk of re-offending and the serious consequences that repeat offending would have on the public, these factors, in the Tribunal’s view, weigh strongly against the Applicant and revocation of the cancellation decision.

    OTHER CONSIDERATIONS

    Impact on Australian business interests

21. There is no evidence currently available to suggest that the Applicant is involved in the delivery of a major project or of an important service in Australia. Accordingly, this consideration is not relevant to the Applicant's circumstances.

    Impact on victims

22. There is nothing in the material which suggests that this consideration is relevant to the Applicant’s case.

    International non-refoulement obligations

23. A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.

24. The Applicant claims to fear harm if returned to South Sudan as he would be “subjected to further abuse by the very people who caused my family to flee to Australia”, because he is a Christian Dinka, and also on the basis of ongoing internal conflict.

25. The Applicant was the holder of a Subclass XB-200 Refugee visa. However, as a dependent Applicant, the Applicant was not assessed against any of the primary criteria for grant. Given that a Subclass XB-200 Refugee visa is not a protection visa as defined by s.35A of the Act, it is open to the Applicant to make an application for a protection visa, which would then compel the Minister to assess and determine his non-refoulement claims. In those circumstances, and noting the existence of Direction 75 which requires delegates to assess an Applicant’s protection claims prior to the ineligibility criteria or refusal under s.501 of the Act, the obligation to consider non-refoulement obligations does not compel the Tribunal to make a determination on whether non-refoulement obligations are owed [Ali v Minister for Immigration and Border Protection 2018 FCA 650 at 28 and 34].

26. The Respondent contends that the Tribunal should take the approach adopted in Aciek and Minister for Home Affairs [2018] AATA 2755, and conclude that it is appropriate for the determination of the Applicant’s non-refoulement claims to be made in response to any protection visa application by him. A further contention of the Respondent is that if the Applicant were dissatisfied with the Department’s decision on such an application, it would be open to him to seek review of the decision in the Migration and Refugee Division of this Tribunal, and subsequently to seek judicial review of any adverse decision by the Tribunal.

27. Despite these submissions and the decision in Aciek, the Tribunal recognises the responsibility to consider non-refoulement obligations. Even accepting that the Applicant’s claimed risk of harm in South Sudan is genuine and therefore carries weight, it is nonetheless substantially outweighed by the Applicant’s offending history, accepted risk of offending in the future and the expectations of the Australian community.

28. In any event, the Tribunal has taken into account all those concerns raised by the Applicant in evidence and in his material as to his concerns about safety should he be returned to Sudan and the likely difficulties he will experience and assessed and considered them as part of the consideration impediments to removal. The tribunal also notes that, in evidence, the Applicant was quite vague about his Dinka faith, his present involvement in the practise of that faith and had some difficulty, in the Tribunal’s view, actually articulating specific concerns in relation to his safety in Sudan because of the faith.

29. Given the Applicant’s offending history, in the Tribunal’s view, the primary considerations of the protection and expectations of the Australian community under Direction 65 outweigh any considerations in favour of revocation, including the claims concerning non-refoulement obligations.

    Strength, nature and duration of ties

30. The Applicant has substantial ties to Australia. He arrived here as a child, and his immediate and extended family are Australian citizens residing in Australia. The impact that removal of the Applicant would have on his family members would result in the Applicant and family members suffering emotional hardship.

31. The Applicant’s removal to South Sudan will involve a physical and emotional separation from his family.

32. This consideration weighs in favour of revocation.

    Extent of impediments if removed

33. Employment prospects in South Sudan are generally poor and that physical and mental health treatment facilities and social welfare support systems are very limited. These facts are accepted by the Respondent.

34. The Applicant, it is accepted, has no family support, and has a fear of harm if he were to return to North Sudan or South Sudan; “his grandparents who lived in Sudan are all deceased”. The Applicant has completed schooling up to Year 11. Apart from mental health issues, there is nothing else to suggest that he is of poor health. He is able to speak basic Arabic.

35. The Minister submits that while the Applicant may face initial difficulty re-establishing himself in South Sudan, the evidence does not demonstrate that the impediments would be insurmountable. Expressed in this way, the submission by the Respondent appears unnecessarily callous. The Tribunal is in no doubt that sending the Applicant back to Sudan would be extremely traumatic. This consideration clearly weighs in favour of revocation.

36. The Applicant claimed that he is stateless, although that submission was not pressed at hearing. Nonetheless, country information indicates that in 2011, the new South Sudanese government adopted the Transitional Constitution of 2011, the Nationality Act 2011 and the Nationality Regulations 2011. These laws entitle South Sudanese nationality to anyone who is a member of an ‘indigenous ethnic community’ of South Sudan, or has a parent, grandparent or great-grandparent who was born in South Sudan.

37. The Applicant’s father indicated that he was born in Aweil, located in South Sudan, and later moved to Khartoum. As the Applicant appears to be of Dinka ethnicity, and his father was born in South Sudan, the Applicant is eligible for South Sudanese nationality.

38. In the event, the Tribunal does not consider that this issue is supported by the evidence.

    CONCLUSION

39. In summary, however, even although these are all compelling considerations weighing in the Applicant’s favour, the Tribunal concludes that they are outweighed by the primary considerations of protection of the Australian community and expectations of the Australian community. Those considerations weigh heavily against revocation, in the Tribunal’s view.

40. The Tribunal is not satisfied that there is another reason why the mandatory cancellation should be revoked.

41. The decision is affirmed.

I certify that the preceding 77 (seventy -seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC

..............................[sgd]..........................................

Associate

Dated: 11 February 2019

Date(s) of hearing:	31 January 2019
Applicant:	By video conference
Solicitors for the Respondent:	Ms M Donald, Sparke Helmore Lawyers