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

Anyang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 262 (27 February 2023)
Division:GENERAL DIVISION
File Number(s): 2022/10195
Re:Anyang Lual Anyang
APPLICANT

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

Decision
Tribunal:Deputy President Britten-Jones
Date:27 February 2023
Place:Adelaide

The decision of the Tribunal is to affirm the decision under review.
.......[Sgnd].................................................
Deputy President Britten-Jones
Catchwords
MIGRATION – mandatory cancellation of Class XB Subclass 202 Global Special Humanitarian visa – applicant has substantial criminal record and has had his visa cancelled – whether there is another reason to revoke mandatory cancellation decision – the primary considerations of the protection and expectations of the Australian community and family violence outweigh the countervailing considerations – the decision under review is affirmed
Legislation
Migration Act 1958 (Cth)
Cases
CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124
Minister for Immigration and Border Protection v Le (2016) 244 FCR 56, 70-71 at [61]; [2016] FCAFC 244
Minister for immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; [2014] FCA 673
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
Secondary Materials
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021)
REASONS FOR DECISION
Deputy President Britten-Jones
27 February 2023

This is an application for review of a decision to not revoke the mandatory cancellation of the applicant’s Class XB Subclass 202 Global Special Humanitarian visa (the visa) under s 501(3A) of the Migration Act 1958 (Cth).[1]
[1] All references to legislation are to the Migration Act 1958 (Cth) unless otherwise stated.
The decision to cancel the visa AND SUBSEQUENT PROCEDURAL HISTORY
On 9 June 2020, the visa was mandatorily cancelled (the cancellation decision) by a delegate of the Minister under s 501(3A) on character grounds due to his substantial criminal record and because he was serving a sentence of imprisonment of over 12 months.
On 20 May 2022, the applicant was invited to make representations to the Minister about revoking the cancellation decision. On 6 June 2022, the applicant sought revocation of the cancellation decision and made representations in support of that request. Further submissions and documentation in support of the applicant were provided by his legal representatives, No Borders Migration Advocates, on 17 June 2022.
On 6 December 2022, a delegate of the Minister decided not to revoke the cancellation decision under s 501CA(4) (the non-revocation decision). On 13 December 2022, the applicant applied to the Tribunal for review of the non-revocation decision.
The applicant had legal representation up until the Friday before his hearing. Those legal representatives provided to the Tribunal a statement of facts, issues and contentions dated 30 January 2023, together with some further supporting documents. The applicant represented himself at the hearing. His speaking and comprehension of English is very good, but an interpreter was present at the hearing to assist if requested.
Legislative Framework
Under s 501(3A), the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test referred to in s 501(3A) is outlined in s 501(6). Relevantly, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by ss (7)). For the purposes of s 501(6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[2]
[2] Migration Act 1958 (Cth) s 501(7)(c).
Where a visa has been cancelled as set out above, the Minister has a power under s 501CA(4)(b) to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is “another reason” why the original decision should be revoked:
501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for making the original decision; and
(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a) give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.
Issues before the Tribunal
The applicant does not pass the character test prescribed under s 501(6)(a) as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has a “substantial criminal record” as defined under s 501(7). Therefore, the applicant cannot rely on s 501CA(4)(b)(i) to have the mandatory visa cancellation revoked.
Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision, to assess if there is “another reason” why the cancellation decision should be revoked. This assessment is made by reference to the representations made by the applicant which I am required to read, identify, understand and evaluate.[3] Deciding whether or not to be satisfied that “another reason” exists might be the product of necessary fact finding, or the product of making predictions about the future, or it might be about assessments or characterisation of an applicant’s past offending.[4]
[3] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [22] and [36].
[4] Minister for immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41 at [14].
The applicant concedes that he does not pass the character test and that the only issue for the Tribunal is whether there is “another reason” to revoke the cancellation decision having regard to the principles and considerations in Direction 90.[5]
[5] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021).
Direction 90
The purpose of Direction 90 is to guide decision-makers in performing functions or exercising powers under s 501 and s 501CA. Under s 499(2A), the Tribunal must comply with a direction made under s 499.
The relevant principles that the Tribunal must apply to the task of deciding whether to revoke a mandatory cancellation are set out in paragraph 5.2 of Direction 90 as follows:
(1)    Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)    Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)    The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)    Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other 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.
(5)    Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(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.
In making a decision under s 501CA(4), the following are primary considerations:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
In making a decision under s 501CA(4), other considerations must also be taken into account, including (but not limited to):[6]
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community, including:
(i)strength, nature and duration of ties to Australia; and
(ii)impact on Australian business interests.
[6] Direction 90 at 9.
In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.[7]
SOME BACKGROUND FACTS[8]
[7] Direction 90 at 7.
[8] Exhibit 1 (G-documents); Exhibit 4 (Respondent’s Tender Bundle); Applicant’s statement of facts, issues and contentions, 30 January 2023.
The applicant was born in Kenya in June 1997, from parents of Dinka ethnicity who are from what is now South Sudan. He is the eldest of six children who all live in Australia with their mother in Toowoomba. His parents are separated and his father lives in Brisbane.
The applicant arrived in Australia as a refugee with his family on 5 August 2006, when 9 years old. He had a very difficult life and witnessed distressing violence as a young child. His parents were forced to leave South Sudan and he was born and lived in a refugee camp in Kenya. He remembers two significant visits to see relatives in Khartoum in South Sudan. In cross examination he described his parents as citizens of South Sudan. He speaks Dinka and describes himself as a Dinka. Before coming to Australia, his father was away at war, and he was brought up mostly by his mother who was assisted by his uncle and his grandmother.[9]
[9] Applicant’s statement of facts, issues and contentions, 30 January 2023.
As a teenager, the applicant commenced experimenting with alcohol and cannabis and, then later, ice. He also commenced having mental health issues and was diagnosed as a schizophrenic and with PTSD due to the violence that he witnessed as a child before coming to Australia. He dropped out of school in year 10 when he became influenced by negative peers. He commenced committing crime, and in 2012 he was charged with numerous offences and appeared in the Toowoomba Children’s Court in January, February and November for stealing-related offences, including an armed robbery and an assault. He was sent to a juvenile detention centre for nine months. He continued to offend in 2014 and 2015, and on 11 April 2016 in the Toowoomba District Court he was sentenced to a two years and six months supervision order. He committed his most serious offending in 2018 and 2019, including domestic violence for which he was sentenced in the Supreme Court on 15 May 2020 to a term of imprisonment of three years, six months.
CONSIDERATION
Protection of the Australian community – 8.1 of Direction 90
When considering the protection of the Australian community, I have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. Entering 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. As required by paragraph 8.1(2) of Direction 90, I give consideration below to:
a)the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the non-citizen’s conduct – 8.1.1 of Direction 90
In October 2012, the applicant pleaded guilty to two counts of assault occasioning bodily harm in company and one count of robbery in company with personal violence. He was sentenced in the Children’s Court of Queensland to 9 months detention. No convictions were recorded but the sentencing judge described the offending as very serious, and said:[10]
You have a very poor attitude. It seems to me that while you may have had little previous offending, you have committed a number of serious offences for which you are not remorseful. There is no alternative but to a period of detention with respect to this offending.
[10] Exhibit 4, R5 at p140.
On 11 April 2016, the applicant was convicted on a guilty plea in the Toowoomba District Court of armed robbery in company and was sentenced to a period of probation for 30 months. Convictions were also recorded in relation to other summary offences, including stealing, public nuisance, wilful damage, received tainted property, breach of bail and assault or obstruct police officer. The sentencing judge said:[11]
The circumstances are concerning because they show an attack on a vulnerable target, at night and while wearing clothing that hid your appearances and, unfortunately, involve the use of a machete.
[11] As above at p146.
On 15 May 2020, the applicant was convicted on a guilty plea in the Supreme Court of Queensland for trafficking in cannabis, for a period of two months, domestic violence offences on 3 December 2019 and assault on a fellow prisoner on 28 December 2019. He was sentenced to a term of imprisonment for three years, six months. The sentencing judge said:[12]
Your partner, who is the mother of your two children and who is expecting to give birth in the next few weeks to your third child, had the benefit of a domestic violence protection order that was taken out on March 2018 which required you to be of good behaviour. Late on the evening of 3 December 2019 you went to her unit. You acted in a dreadful way. You used scissors to cut bank cards. There were children sleeping. You cut up a pair of shoes with scissors. You attempted to dominate your partner, told her to brush her teeth, grabbed her, then you used some implement or other to scratch a 4 cm cut in the front of her neck. That, in itself is disgraceful behaviour, but it did not end with that stupid, wilful, evil, infliction of a wound on someone who was entitled to be protected by the law, and who needed protection rather than assaulting.
She went back into her bedroom, you followed her. You again dominated her. You put two of your fingers in her throat for about 10 seconds, causing her to gag. Your hands squeezed her neck…
As if that was not bad enough, you punched her to the left side of the face six times. She was holding a child at that time.… It is disgraceful that any child should be in a mother’s arms while the mother is punched to the head. You punched her. Her lip bled. She attempted to resist this attack. You then stomped twice on her chest with your bare foot.
…
You have been in custody since 4 December 2019. This brings me to your assault on a fellow prisoner on 28 December 2019. … You go to a table where he is sitting. You punch him in the face with a closed fist. You continue to punch at least 10 times to his upper body and face. He is on the ground and you continue to assault him a couple more times in the face. So this is a further act of violence.
Whatever provocation may have been caused to you, your impulsivity and preparedness to resort to violence warrants punishment as a way of deterring you from committing violence against fellow prisoners, or anyone else, and to also make it clear to others in the corrective system that violence will not be tolerated.
[12] Exhibit 1, G5 at p44-45.
The sentencing judge referred to the three separate episodes of drug trafficking, domestic violence and the assault in custody. The drug trafficking involved the aggravating circumstance of supply to minors who were in the order of 16 or 17 years old. The sentencing judge described the domestic violence offence as prolonged and cowardly. He said that the assault occasioning bodily harm in prison as a standalone sentence would justify a sentence of between nine and 12 months because of the importance of general deterrence.
I disregard the juvenile offending, for which the applicant received no convictions. Since then, the applicant’s criminal offending has been of the most serious kind. It involved numerous acts of violence including against his female partner. It also involved the supply of drugs to minors. The seriousness of the offending is reflected in the lengthy prison sentence. The offending was frequent and there is a trend of increasing seriousness. I take into account the cumulative effect of the repeated offending.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 8.1.2 of Direction 90

In considering the need to protect the Australian community from harm, I have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were repeated, is so serious that any risk that it may be repeated may be unacceptable.[13] As required by paragraph 8.1.2(2) of Direction 90, I also have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non- citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
[13] Direction 90 at 8.1.2(1).
In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J in Tanielu v Minister for Immigration and Border Protection.[14] Her Honour states that, to determine an unacceptable risk, one has to evaluate what the consequences of re-offending are as well as the likelihood of the person engaging in that conduct in the future.
Nature of harm if the applicant engaged in further criminal or other serious conduct – 8.1.2(2)(a) of Direction 90
[14] (2014) 225 FCR 424; [2014] FCA 673.
If the applicant were to engage in further similar criminal offending, then the nature of the harm would be very serious because the offending was violent and caused physical and mental harm to his victims, including his partner who is the mother of his children. The supply of cannabis to a minor, as noted by the sentencing judge, has a particularly poor effect on adolescent brains and stunts their development.[15]
[15] Exhibit 1, G5 at p47.
Likelihood of further criminal or other serious conduct – 8.1.2(2)(b) of Direction 90
The applicant was examined by a psychologist, Dr Melanie Mitchell, who prepared a report dated 30 January 2023.[16] She examined his risk of reoffending using two structured risk assessment tools. With respect to the risk of domestic violence, she found that the applicant represented a low to moderate risk for future intimate partner violence, but his overall rating was elevated to moderate due to the presence of historical factors. She said that if the applicant were to associate with substance using peers, and with peers with whom he used to commit crimes, there is a likelihood that he will relapse into substance abuse with a potential for him to return to criminal activity. If the applicant ceases mental health treatment, she said that it is also possible that he will experience stress caused by his symptoms and possibly have reduced resiliency for staying away from substances and crime.
[16] Exhibit 2.
There was an earlier psychological risk assessment report made for the Parole Board Queensland, on 10 May 2021, by a forensic psychologist, Garry Kidd.[17] He concluded that the applicant was currently assessed as being at medium risk for committing further violent offences and that he would benefit considerably from participation in higher intensity substance abuse treatment programs in custody.
[17] Exhibit 4, R6 at p218.
In 2020, the applicant participated in a low intensity alcohol and other drugs program over a five-week period. He obtained a Certificate lll in Fitness and has undertaken some work whilst in prison. He was involved in a relapse prevention plan and substance-abuse maintenance intervention in 2021. He completed a resilience program on 7 January 2022. The applicant explained that he has not completed any formal rehabilitative program directed towards domestic violence because it was not made available to him in prison and in detention.[18] The applicant has expressed remorse and exhibited a general level of understanding of the wrongfulness of his actions, but I consider that he has not undertaken sufficient rehabilitation, in particular, with respect to domestic violence and the treatment of women.
[18] Applicant’s oral evidence.
I find that there is a moderate risk that the applicant will reoffend by involving himself with drugs and engaging in violence, including domestic violence. Whilst he will benefit from the support of his family in Toowoomba, this is the very environment in which he got himself into so much trouble previously. Given his track record, I consider it unlikely that he will remain drug free and not engage in further criminal activity. I take into account that the applicant’s mental health and his abuse of drugs have been a major contributor to his offending. The applicant accepted that the alcohol and drugs messed with his medication, which worsened his mental health. His mental health in recent times appears to have stabilised and this would likely be sustained if he maintained his medication and remained drug and alcohol free. I accept that he will be able to live with his mother and siblings in a stable and supporting environment. However, I do have concerns that if he is returned to the same community in Toowoomba, a relapse would be likely. This is an unacceptable risk because the consequences of him reoffending are so severe coupled with a real likelihood that he will reoffend.
I conclude that the protection of the Australian community is a factor that weighs very heavily in favour of not revoking the cancellation decision.
Family Violence – 8.2 of Direction 90
The Government has serious concerns about conferring the privilege of remaining in Australia on non-citizens who engage in family violence. The applicant was convicted in 2020 for assault occasioning bodily harm inflicted on his partner, who is the mother of his children. As the sentencing judge said, this conduct was prolonged and cowardly. It occurred on the one night when he choked and punched his partner, scratched a four centimetre cut in the front of her neck, and cut up her clothes, credit cards, pram straps and the cord to the television. [19] I consider that these wilful acts designed to inflict physical and psychological harm on your partner were truly evil.
[19] Exhibit 1, G5 at pp44-8.
I remain concerned about the extent of the applicant’s rehabilitation and the extent to which he understands the impact of his behaviour on his ex-partner and his children.
The Government has serious concerns about those who engage in family violence, and I consider that this is a factor that weighs heavily against revoking the cancellation decision.
Best interests of minor children – 8.3 of Direction 90
I must determine whether non-revocation of the cancellation of the visa is, or is not, in the best interests of a child who is affected by the decision. The best interests of each child should be given individual consideration to the extent that their interests may differ. The following factors that I must consider, and which are relevant to this application, include:
(a)The nature and duration of the relationship between the child and the applicant. 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;
(b)the extent to which the applicant is likely to play a positive parental role in the future;
(c)the impact of the applicant’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 applicant would have on a child, taking into account the ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; and
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The applicant has three children, aged 7, 3 and 2. He missed the births of his first and third child because he was in prison. His partner, and the mother of these children, has also spent about a year in prison since their birth and the children have been removed from her custody. They are currently being looked after by the partner’s auntie.
The eldest child was born in May 2015, and the applicant spent time with him upon his release from prison in November 2015 up until going into custody in May 2019. The applicant developed a strong bond with this child, but he was not provided with a stable family environment as is evidenced by the domestic violence protection order granted against the applicant in March 2018 and the domestic violence in the family home on the night of 3 December 2019. The applicant has said, and I accept, that if he is released into the community, he wants to play a parental role and be a role model for his children. I accept that continued separation from the applicant would have a negative impact on the child. If the applicant were returned to South Sudan, then the child may never see his father again. I consider his release to be in the best interests of this child, but I give this factor less weight because the children are currently being cared for by the partner’s auntie; because of the long period of absence whilst in prison; and due to the prior conduct of domestic violence and the risk of further domestic violence.
The younger children have not had an opportunity to develop any meaningful relationship with their father because of their age and because he has been absent. It is of great concern that the applicant put his second child at risk of harm when he punched his partner who was holding the child in her arms. I have found that there is a risk of further domestic violence if the applicant is released, and this would obviously have a seriously negative impact on the children. These children are also being cared for by their mother’s auntie and it is unknown at this stage if they will return to the care of their mother (the applicant’s ex-partner). The applicant has said, and I accept, that if he is released into the community, he wants to play a parental role and be a role model for his children. I accept that continued separation from the applicant would have a negative impact on these children. If the applicant were returned to South Sudan, then these children may never see their father again. I consider his release to be in the best interests of these younger children, but I give this factor less weight because the children are currently being cared for by their mother’s auntie; because of the long period of absence whilst in prison; and due to the prior conduct of domestic violence and the risk of further domestic violence.
The applicant has three younger siblings who are minors, whose interests need to be considered. They are aged 11, 13 and 15. These children live with their mother and their two older siblings in Toowoomba. Their parents are separated, and their father lives in Brisbane, but they have contact with him. Continued separation from the applicant would have a negative impact on these children. If the applicant were returned to South Sudan, then these children may never see their brother again. It would be in the best interests of these younger siblings if their oldest brother, the applicant, were released and able to provide a brotherly role for them. This role is particularly important because in the South Sudanese culture the eldest male in the family has a significant role. However, I would give these interests very little weight because the brother’s role is non-parental, and the children have the support of their mother and two older siblings at home together with some aunties who provide support to the family. Less weight is also given because of the significant period of absences when the applicant has been in prison.
Overall, this is a factor that weighs in favour of revoking the cancellation decision, but its weight is diminished due to the factors set out above.
Expectations of the Australian community – 8.4 of Direction 90
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, the Australian community, as a norm, expects the Government to not allow such a non-citizen to remain in Australia.[20]
[20] Direction 90 at 8.4(1).
Paragraph 8.4(4) of Direction 90 provides that, as a decision-maker, I must consider the expectations of the Australian community as a whole and proceed on the basis of the Government’s views expressed therein, without independently assessing the community’s expectations in the particular case. The violence towards his partner, a fellow prisoner and others, together with the supply of drugs to minors, means that the expectation of the Australian community is to not allow the applicant to remain in Australia[21] because he has engaged in serious conduct of a violent nature in breach of the Australian community’s expectation that he would obey laws while in Australia. There is an unacceptable risk of further violence, including of a domestic nature.
[21] Direction 90 at 8.4(1).
My conclusion as to the expectations of the Australian community is that it is a factor that weighs heavily against revoking the cancellation decision.
Other Considerations
In deciding whether there is “another reason” to revoke the cancellation of the visa, I must also take into account the other considerations listed in Direction 90, but these are not exhaustive.[22] I must consider and understand the representations received from the applicant.[23] I must also consider the consequences that would flow from not revoking the cancellation decision.[24]
[22] SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303.
[23] See above at [11].
[24] Minister for Immigration and Border Protection v Le (2016) 244 FCR 56, 70-71 at [61]; [2016] FCAFC 244.
International non-refoulement obligations – 9.1 of Direction 90
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.[25]
[25] Direction 90 at 9.1(1).
The applicant has articulated the prospect of Australia breaching its non-refoulement obligations as a reason for revoking the cancellation decision. This is in addition to, and distinct from, his underlying claimed fear of harm if removed to South Sudan.
I will consider separately the risk of harm if removed to South Sudan, but I note that the risks of harm that the applicant will face if removed are also relevant to non-refoulement obligations and the extent of impediments if removed.
The respondent submits that the Tribunal is entitled to and should defer consideration of non-refoulement obligations because it is open to the applicant to apply for a protection visa. The applicant has said that he would apply for a protection visa if he is not successful with this application.
The applicant says that there is sufficient evidence for the Tribunal to make a finding that non-refoulement obligations are owed.
The recent decision of the High Court in Plaintiff M1/2021 v Minister for Home Affairs (Plaintiff M1/2021)[26] addressed the issue of decision-makers’ approach to non-refoulement:
[21] It is in that context that the specific issue in this case is to be addressed — whether a decision-maker considering revocation under s 501CA(4) is required to determine whether non-refoulement obligations are owed to the former visa holder where the person makes representations which raise a potential breach of those obligations but the person remains free to apply for a protection visa. As has been stated, the dispute between the parties was not if, but how, such representations should be considered by the decision-maker.
Decision-makers’ approach to representations
[22] Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision-maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason“ why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is “another reason” for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is “another reason” for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.
… [24] Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. …
Decision-makers’ approach to non-refoulement
… [29] Where the representations do include, or the circumstances do suggest, a non-refoulement claim by reference to unenacted international non-refoulement obligations, that claim may be considered by the decision-maker under s 501CA(4). But those obligations cannot be, and are not, mandatory relevant considerations under s 501CA(4) attracting judicial review for jurisdictional error — they are not part of Australia’s domestic law.
[30] Where the representations do include, or the circumstances do suggest, a claim of non-refoulement under domestic law, again the claim may be considered by the decision-maker under s 501CA(4), but one available outcome for the decision-maker is to defer assessment of whether the former visa holder is owed those non-refoulement obligations on the basis that it is open to the former visa holder to apply for a protection visa.
(Footnotes removed)
[26] [2022] HCA 17.
It follows that I am required to read, identify, understand and evaluate the representations made by the applicant. Those representations included a claim of non-refoulement under domestic law. The High Court said that such a claim may be considered by the decision-maker, but that one available outcome is to defer assessment of whether the applicant is owed those non-refoulement obligations.[27] I intend to defer assessment because it is open to the applicant to apply for a protection visa. That does not mean that I ignore the representations made by the applicant. Plaintiff M1/2021 makes it clear that a decision-maker must not do that,[28] but “one available outcome” is the deferral of the substantive assessment of such a claim.[29]
[27] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [30].
[28] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [23].
[29] CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124 at [105].
The comments in Plaintiff M1/2021 were made in the context of Direction 65, which has been revoked, but they still apply to the decision I must make under s 501CA(4). The current direction is Direction 90 which provides at 9.1:
(4) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa under section 501 of the Act, in a request to revoke under section 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).
(5) International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.
(6) It may not be possible at the section 501/section 501CA stage to consider nonrefoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of nonrefoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.
(7) Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the noncitizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.

In this case, the applicant has clearly raised claims which may give rise to international non-refoulement obligations. Paragraph 9.1(6) of Direction 90 provides that it may not be possible at the s 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. That sub-paragraph applies in this case and allows the decision-maker to defer substantial assessment of non-refoulement issues. I do note that the delegate making the non-revocation decision[30] considered that a conclusive finding as to whether non-refoulement obligations were owed was not possible without a full and comprehensive assessment through a process similar to what is required to assess a protection visa application, but nevertheless the delegate accepted that there is at least a possibility that the applicant could face a real risk of suffering harm in South Sudan.
[30] Exhibit 1, G3 Decision of the delegate 6 December 2022 at p32.
Applicant’s representations including as statelessness and risk of harm
The applicant made representations concerning statelessness in the statement of facts, issues and contentions, dated 30 January 2023, provided by his legal representatives. However, at the hearing, the applicant described his parents as citizens of South Sudan. He said that he speaks Dinka and describes himself as a Dinka. He has been taught about the culture of South Sudan and to respect it. I do not consider that the applicant is stateless. His parents are South Sudanese, he identifies as a South Sudanese person, and he would be eligible for South Sudanese citizenship under the laws of South Sudan. Any practical difficulties contended for by the applicant would likely be overcome.
The applicant says his life will be at risk if he is returned to South Sudan because he is a Dinka and because he would be recognised as a western returnee. He also says he would most likely end up fighting in the civil war and be killed. The country information, including as reported in the Arab News in September 2022, says that South Sudan is on the brink of further civil war and that conditions remain perilous. I accept the applicant’s evidence that he would face a real and genuine risk of serious harm, including death, if he is returned to South Sudan. This risk of harm would be exacerbated because of his mental health issues. This is a factor that weighs in favour of revoking the cancellation decision, but I give it less weight because the applicant still has the opportunity to apply for a protection visa, which he intends to do.
Consequences of cancellation and non-revocation
The consequence of the cancellation[31] of the visa is that he is an “unlawful non‑citizen” as defined in s 14.
[31] CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124 at [45] to [49].
If an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, the officer must detain the person under s 189(1). A person so detained must be kept in immigration detention until he or she is removed from Australia accordance with s 198, deported under s 200, or granted a visa under s 196.
If the cancellation decision is not revoked, s 198(2B) would require the applicant’s removal from Australia if he did not make an application for another visa. If he does make an application for another visa, he would be liable to be removed from Australia under s 198(6) if that application were to be refused.
If the cancellation decision is revoked, it is taken not to have been made pursuant to s 501CA(5). In that event, the applicant would not meet the description of an unlawful non‑citizen and would not be subject to removal from Australia as mandated by s 198(2B) or s 198(6) as the case may be.
The applicant contends that if the cancellation decision is not revoked, he will either be removed to South Sudan or face ongoing detention. In either event, the consequence for the applicant would be serious. In South Sudan he would likely be harmed and face discrimination for being a Dinka and a western returnee. In detention, his mental health will deteriorate, and he will continue to be separated from his family.
I note that if the visa cancellation is not revoked, the applicant may remain in detention whilst any protection visa application is considered or while the Minister considers the possibility of re-settlement or the exercise of a personal discretion in favour of the applicant. There is no evidence before me suggesting that re-settlement or the exercise of a personal discretion would be considered. Ongoing detention would impact the mental health of the applicant and would have adverse consequences. In WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs Kenny and Mortimer JJ considered the impact of further detention, which is apposite to the applicant:[32]
… The period of a person’s loss of liberty may be very lengthy, and have no chronologically fixed endpoint, being dependent on the completion of various administrative and executive steps and inquiries. The person concerned will have no accurate conception of when her or his detention might end.
[32] [2021] FCAFC 55 at [132].
The prospect of further detention is a factor that weighs in favour of revoking the cancellation decision.
Extent of impediments if removed – 9.2 of Direction 90
Direction 90 requires that I consider the extent of any impediments that the applicant may face if removed from Australia to South Sudan in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the applicant’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to him in that country.
The applicant is 25 years old and in relatively good physical health. He has been diagnosed with schizophrenia and PTSD and he experienced psychotic symptoms when using drugs. Dr Mitchell reported that when non-compliant with medication, he was non-responsive to directions and could become agitated. His diagnosis was revised to mania with psychotic features in 2014 and the schizoaffective disorder in 2015. If removed to South Sudan it is unlikely that he would receive the necessary mental health treatment, which would result in a significant decline in his mental health.
The applicant speaks Dinka but has difficulty reading and writing it. His English has now improved to a good level. He has been taught about the South Sudanese culture, but there would be significant cultural barriers since he has never lived in South Sudan except for two visits many years ago. The applicant’s immediate family is in Australia, and he has no known relatives left in South Sudan. I conclude that he would find it very difficult in South Sudan to establish himself and to maintain a basic living standard without any family or social support, which would be exacerbated by a likely decline in his mental health. As a western returnee with mental health issues, he would find it difficult to access social, medical and economic supports.
This is a factor that weighs heavily in favour of revocation of the cancellation decision.
Impact on victims – 9.3 of Direction 90
The applicant relies on evidence of support from his ex-partner, who is the mother of his children. She is the victim of the domestic violence perpetrated by the applicant. Despite this violence, she has indicated a willingness to rebuild a relationship with him, in particular so that he can have a parental role with the children. Any positive impact on her from having the applicant in her life to help with the children would need to be weighed up against the risk she faces that he will commit more domestic violence. In any event, I will consider her interests under the heading of links to the Australian community and hence I give no weight to her positive evidence. This factor is neutral.
Links to the Australian community – 9.4 of Direction 90
The applicant has significant links to the Australian community due to his extensive family and because he arrived 17 years ago. He arrived in Australia aged 9, in 2006.[33] His parents, siblings, aunts and uncles live in Australia as permanent residents or Australian citizens.
[33] Applicant’s statement of facts, issues and contentions, 30 January 2023.
Since arriving in Australia at the age of 9, he has been to primary school, and high school up to halfway through year 10. From the age of 15 he found himself regularly before the courts due to his frequent offending. He has had very little employment. He worked in a scrap metal company for two months in 2019 and held other casual jobs for short periods. He participated in work activities in prison which he said he enjoyed and benefitted from. He participated in some fundraising activities for his church group and was involved in a soccer club and with touch football. He is a good athlete and dreamed of running for Australia before his dream was ruined by drugs.[34] Overall, however, the applicant’s positive contribution to the Australian community has been limited.
[34] As above; Applicant’s oral evidence.
The applicant’s mother and father and his adult sister all gave written and oral evidence of their support and how they will be deeply saddened if he is not released into the community. His immediate family members will be adversely impacted if his application fails, especially because he is the eldest child, which gives him an important status within the family. The applicant’s ex-partner also supports his application. She will be adversely impacted as a result of not having him to assist her to bring up their children. I also take into account that he became part of his partner’s aboriginal community and that they would miss him if he is not released.
There would be no impact on any Australian businesses if the applicant is not allowed to stay in Australia.
In conclusion with respect to his links to the Australian community, I consider this to be a factor that weighs in favour of revocation of the cancellation decision, but I give it less weight because of the frequent offending from the age of 15 years old.
Conclusion as to whether to revoke the cancellation of the visa
I have considered the specific circumstances relating to the applicant as part of my consideration. I am now required to carry out the evaluative exercise of weighing up the factors to determine whether I am satisfied that there is “another reason” to revoke the cancellation decision.
I give very significant weight to the primary considerations of the protection and expectations of the Australian community and domestic violence, which weigh in favour of not revoking the cancellation decision
The most significant countervailing factor is the interests of the children, because they are very young and find themselves in a dreadful situation of not having either of their parents to look after them. However, it there was no evidence to suggest that they were not being adequately cared for by their great aunt. The release of their father from detention would be beneficial to the children, but it would also involve some risk of further offending which, if it occurred in the family home (as it did in the past), would have a negative impact on them. I have also placed some weight on the impact of non-revocation on the mother and father and siblings, who would all like him to be returned to their home. I place some weight on the likely consequence of further detention and on the risk of harm and extent of impediments if returned to South Sudan. However, these consequences, together with the other countervailing considerations, are outweighed by the primary considerations of the protection and expectations of the Australian community and because the applicant has engaged in family violence and because there is an unacceptable risk of further criminal behaviour.
I reach this conclusion by applying the principles in paragraph 5.2 of Direction 90 to the specific circumstances of the applicant, who has committed serious crimes involving drugs, stolen goods and domestic and other violence. Being able to remain in Australia is a privilege Australia conferred on the applicant in the expectation that he would be 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. The applicant has not been law-abiding; he has shown disregard for Australia’s law enforcement network by frequently reoffending; and he has caused harm in the domestic context and to the wider community. The applicant, as a non-citizen who has committed serious crimes including domestic violence, should generally expect to forfeit the privilege of staying in Australia. The Australian community expects that the Australian Government should cancel the visas of non-citizens who commit such crimes in Australia which raise serious character concerns.
It follows from the application of these principles that I am not satisfied that there is “another reason” why the cancellation decision should be revoked.
Decision
The decision of the Tribunal is to affirm the decision under review.

82. I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones.

....[Sgnd]..........................................
Associate

Date of Decision: 27 February 2023

Date of Hearing: 20 and 21 February 2023

Solicitor for the Applicant: Self-represented

Solicitor for the Respondent: Mr Kyranis
Sparke Helmore Lawyers

[2023] AATA 262

27 February 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Date of Decision:	27 February 2023
Date of Hearing:	20 and 21 February 2023
Solicitor for the Applicant:	Self-represented
Solicitor for the Respondent:	Mr Kyranis Sparke Helmore Lawyers