Bier and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) - [2023] AATA 2717

Bier and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 2717 (24 August 2023)
Division:GENERAL DIVISION
File Number: 2023/3977
Re:Deng James Jok Bier
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:24 August 2023
Place:Melbourne

The Tribunal affirms the reviewable decision.
........................................................................
Senior Member A. Nikolic AM CSC
CATCHWORDS
MIGRATION - Mandatory visa cancellation – citizen of South Sudan – Class XB Subclass 202
Global Special Humanitarian visa – multiple criminal convictions – violent offending – family
violence – failure to pass good character test – substantial criminal record – where visa previously
cancelled in 2019 – non-revocation of second visa cancellation decision – whether there is another
reason to revoke the mandatory cancellation – Ministerial Direction no. 99 applied – decision
affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Aggregate Sentences) Bill 2023 (Cth)
Migration Regulations 1994 (Cth)
CASES
AEK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022]
FCAFC 175
Ali v Minister for Home Affairs [2020] FCAFC 109
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Applicant S270/2019 v Minister for Immigration & Border Protection (2020) 94 ALJR 897
Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83
BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021]
FCAFC 199
BNGP v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 111
Beezley v Repatriation Commission (2015) 150 ALD 11
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021)
287 FCR 294
Brown v Minister for Immigration and Citizenship [2009] 112 ALD 67
Brown v Minister for Immigration and Citizenship (2010) 114 ALD 477
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021]
FCAFC 69
CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101
DOB18 v Minister for Home Affairs [2018] FCA 1523
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021]
FCAFC 78
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Hernandez v Minister for Home Affairs [2020] FCA 415
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA
1120
Maxwell v R (1996) 184 CLR 501
Minister for Home Affairs v Omar (2019) 272 FCR 589
Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021]
FCAFC 133
Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Murphy v Minister for Home Affairs [2018] FCA 1924
Nathanson v Minister for Home Affairs (2022) 96 ALJR 737
Nathanson v Minister for Home Affairs [2022] HCA 26
Pearson v Minister for Home Affairs [2022] FCAFC 203
Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497
Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219
PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA
1050
QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA
1394
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285
FCR 187
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
VNVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020]
AATA 3502
YKSB v Minister for Home Affairs [2020] FCAFC 224
Secondary Materials
Direction No. 99 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation
under s501 and revocation of a mandatory cancellation of a visa under s501CA
Sentencing Advisory Council (Vic), ‘Imprisonment’, (Web Page, 28 April 2022)
< Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)
Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3
(entered into force 2 September 1990)
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137
Art 33(1) (entered into force 22 April 1954)
Convention Relating to the Status of Stateless Persons, opened for signature 28 September 1954,
360 UNTS 117 (entered into force 6 June 1960)
International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999
UNTS 171 (entered into force 23 March 1976)
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
24 August 2023
INTRODUCTION

This review application relates to the Respondent’s decision not to revoke the mandatory cancellation of the Applicant’s Global Special Humanitarian Visa (“the visa”).
The hearing was held in person at the Tribunal’s Melbourne Registry from 16 to 18 August 2023. The Applicant was previously assisted by lawyers from Refugee Legal and the Asylum Seeker Resource Centre (“ASRC”) but was self-represented at this hearing. The Respondent was represented by Ms Thompson, instructed by HWL Ebsworth Lawyers.
For the following reasons the Tribunal affirms the reviewable decision.

LEGISLATIVE FRAMEWORK

Section 501(3A) of the Migration Act 1958 (Cth) (“the Act”),[1] read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a visa granted to a non-citizen if the Minister is satisfied the person does not pass the character test. This includes if the non-citizen has been sentenced to a term of imprisonment of 12 months or more.
[1] Any reference to “the Act” relates to the Migration Act 1958 (Cth) unless otherwise stated.
The ‘character test’ is defined in s 501(6) of the Act:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or …
Section 501(7) of the Act sets out six sets of circumstances in which a person is taken to have a substantial criminal record, including if the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c) of the Act), or to two or more terms of imprisonment where the total of those terms is 12 months or more (s 501(7)(d) of the Act).
The Minister is obliged under s 501CA(3) of the Act to provide notice of the cancellation decision as soon as practicable, and invite the affected person to respond. Under s 496 of the Act, the Minister may delegate these powers
Section 501CA(4) of the Act confers a discretionary power upon the Minister or their delegate to revoke the original decision, if the non-citizen makes representations in accordance with the invitation extended to them, and if the Minister is satisfied the person either passes the character test, or 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.
Non-revocation decisions by ministerial delegates are reviewable by the Tribunal.[2]
[2] Section 500(1)(ba) of the Act, read in conjunction with s 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).

BACKGROUND

The Applicant is 38 years’ old and was born in what is now South Sudan.[3] He is of Nuer ethnicity and Christian religion.[4] The Applicant claims he became separated from his family during the war, lived in Khartoum with a maternal uncle, finished high school there,[5] and relocated with his uncle to Egypt at the age of 13.[6] He claimed their departure from Sudan in 2001 was because his uncle was arrested a few times and the authorities tried to forcibly recruit the Applicant to join the Army.[7]
[3] Exhibit R1, 101; 106.
[4] Ibid 167 [6].
[5] Ibid 137 [7];164; 167 [7]. In his oral evidence he stated that he completed Year 11.
[6] Ibid 137.
[7] Ibid 137 [7].
The Applicant claimed that after moving to Egypt he discovered his mother and younger sister were not dead but living in Australia. His mother subsequently sponsored their migration to Australia in October 2004 and purportedly told him his father was killed during the war in Sudan.[8] The Applicant’s documentary claims about life in Sudan are inconsistent with aspects of his oral evidence and that of other witnesses during the hearing, which is later discussed.
[8] Ibid 121.
The Applicant has made documentary claims that he became an Australian citizen by virtue of inclusion in his mother’s citizenship by conferral in 2002,[9] but there is no evidence to corroborate this. He was not living in Australia in 2002 when his mother became a citizen and instead arrived in Australia in 2004. In his oral evidence he also referred to previously applying for Australian citizenship but said this was rejected because of his offending. There is also no corroborating evidence for this claim.
[9] Ibid 120.
The Applicant’s two brothers moved to Australia in 2006, while another sister continues to live overseas. The Applicant claimed in documentary evidence to have discovered from his mother in 2008 that this other sister has four children and lives in Egypt.
The Applicant stated in documentary evidence he undertook English studies in Australia and completed Year 11 here.[10] At the current hearing, however, he referred only to English language training followed by work in an abattoir, tannery, factories, a warehouse, in mines, picking fruit, and as a cleaner.[11] He claims to have financially supported his mother and sister in Australia, and his other sister in Egypt. The Applicant said his three siblings in Australia have supported their mother during his imprisonment and detention.
[10] Ibid 167 [12].
[11] Ibid 138 [17]-[18].
The Applicant’s extensive criminal history in Australia includes repeated use of violence since 2007.[12] On 3 June 2019, he was convicted in the Melbourne Magistrates’ Court of offences that included unlawful assault and contravening a family violence final intervention order.[13] He also breached a Community Correction Order (“CCO”) imposed after earlier violent offending and breaches of the Court’s conditional liberty provisions. His visa was first mandatorily cancelled on 22 August 2019 because of these crimes (“first cancellation decision”).[14] The Applicant made representations to have the first cancellation decision revoked, but on 10 June 2020 the Respondent declined to do so.[15] On 7 September 2020, the Tribunal, differently constituted, revoked the first cancellation decision, which resulted in the Applicant being released from immigration detention.[16]
[12] Ibid 42-46.
[13] Ibid 72-93.
[14] Ibid 277.
[15] Ibid 358-359.
[16] The Applicant was then referred to by the anonym VNVT. See VNVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3502.
The Applicant reoffended and was taken into custody in early November 2021. On 25 July 2022 he was found guilty in the Melbourne Magistrates’ Court of contravening a family violence safety notice with the intention of causing harm or fear, common law assault, entering a private place without authority or excuse, and theft from a shop. He was awarded an aggregate of 12 months’ imprisonment, which triggered a second mandatory cancellation of his visa on 18 August 2022 (“second cancellation decision”).[17]
[17] Exhibit R1, 270-276.
The Applicant’s appeal against the July 2022 convictions was heard in the County Court of Victoria on 20 October 2022. Judge Murphy reduced the sentence from 12 months’ imprisonment to 286 days already served on remand. The sentence reduction brought it below the 12-month statutory threshold for mandatory cancellation. The Respondent has since submitted that the Applicant nevertheless fails the character test because he has been sentenced to two or more terms of imprisonment where the total is 12 months or more.[18]
[18] The Act, s 501(7)(d).
The aggregate nature of the Applicant’s July 2022 sentences was impacted by the Full Court’s December 2022 decision in Pearson.[19] Their Honours held that an aggregate sentence cannot be relied upon when assessing if a person has a substantial criminal record for the purpose of mandatory cancellation decisions. The Applicant was released from detention on 28 December 2022. On 17 February 2023, however, he was notified that Parliament’s enactment of the Migration Amendment (Aggregate Sentences) Bill 2023 (Cth) (“Amending Act”) validated the second cancellation decision with retrospective effect. The Applicant spent just under ten weeks at liberty in the community before being re-taken into immigration detention where he has since remained.
[19] Pearson v Minister for Home Affairs [2022] FCAFC 203 (‘Pearson’), (Allsop CJ, Rangiah and Derrington JJ).
On 26 February 2023, the Applicant asked the Tribunal to review the cancellation decision within the permissible period under s 5 of the Amending Act.
On 30 May 2023 a delegate of the Minister decided not to revoke the second cancellation decision (“non-revocation decision”).[20]
[20] Exhibit R1, 4-8; 13-14.
On 8 June 2023, the Applicant asked the Tribunal to review the non-revocation decision.[21]
[21] Ibid 4-9.
Under s 500(6L) of the Act, the Tribunal must decide this application within 84 days of the Applicant being properly notified of the reviewable decision. If this does not occur, the decision is affirmed by operation of law. The 84^th day in this matter falls on 25 August 2023, which is the fifth working day after the hearing ended. A decision was made, and these reasons handed down, within the permissible statutory timeframe.

ANONYMS

The following anonyms are used in these reasons:

PERSON	ANONYM
Applicant’s mother	Madame M
Applicant’s younger brother	Mr G
Applicant’s other younger brother	Mr J
Applicant’s current girlfriend	Ms AD
Applicant’s previous girlfriend from 2017	Ms PG
Applicant’s previous girlfriend from 2021	Ms SN

ISSUE TO BE DETERMINED

At the commencement of the hearing, the Applicant accepted he fails the character test because of his criminal record. The Tribunal agrees. He has a substantial criminal record due to being sentenced to two or more terms of imprisonment exceeding 12 months[22] and cannot therefore rely on s 501CA(4)(b)(i) to have the mandatory visa cancellation revoked.
[22] The Act, s 501(6)(a), read in conjunction with s 501(7)(d).
The ASRC has previously claimed that the Applicant passes the character test because of a reduction in sentence following his appeal in October 2022.[23] The Tribunal disagrees because as held by Middleton J in PYDZ, the Tribunal is entitled to consider the broad version of the character test when considering an application de novo:[24]
58. The applicant relies on this construction of s 501CA(4) in order to contend that it was not open to the Tribunal to apply the broad version of the character test to ‘cure’ the s 501(3A) cancellation decision that he says is invalid. I do not accept that, in determining whether to revoke a cancellation decision in exercise of the powers in s 501CA(4), the Tribunal is confined to the narrow version of the character test in s 501(3A)(a). As I have already indicated by reference to the decision of Burley J in XJLR (at [88]-[89]), the Tribunal is not standing in the shoes of the original decision-maker when exercising the revocation power. The Tribunal has a separate task that it is required to perform under the Act. As the Minister submits, s 501CA(4) effectively provides for merits review of a decision made under s 501(3A) and in doing so the Tribunal is entitled to consider the broad version of the character test. This construction of s 501CA(4) is supported by the express reference in paragraph (b)(i) to “the character test (as defined by section 501)” and the notable absence of any reference to s 501(3A)(a) of the Act.
59. …
60. I agree with the following observations of Burley J in XJLR:
[90] …as noted above, s 501CA(4) provides a means for the Minister or a delegate of the Minister and, on review, the Tribunal, to consider whether to revoke the cancellation decision. Section 501CA(4)(b)(i) introduces consideration of a broader version of the character test than that which was under consideration at the time of the mandatory cancellation decision made pursuant to s 501(3A) and, of particular relevance to the present case, opens consideration of multiple offences, including those served concurrently by the applicant at the time of the decision being made under s 501CA(4).
[91] The application of the broader version of the character test accords with the statutory scheme of enabling mandatory cancellation under s 501(3A) to take place only in the clearest of cases, and more nuanced consideration to take place under s 501CA(4), when an application has been made to review the mandatory cancellation.
61. Once it is accepted that the Tribunal is entitled to look at the broad character test in s 501 then it was clearly open to the Tribunal on the evidence before it to find that the applicant did not pass the character test…
[23] Exhibit R1, 169 [27]-[28].
[24] PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1050, [58]-[61].
The issue to be determined under s 501CA(4)(b)(ii) of the Act is whether the discretion to revoke the cancellation decision is enlivened by the Tribunal’s satisfaction that there is ‘another reason’ to do so.[25] The Full Court in Bettencourt[26] reflected with approval upon the approach taken in Viane,[27] about how this is determined. Their Honours summarised the following principles at [27]:
(1) If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.
(2) The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.
(3) The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.
(4) However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.
(5) Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.
(6) If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation.
[25] Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187, [3]-[5] (Katzmann J); [24] (Derrington J) [103] (O’Bryan J).
[26] Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 294.
[27] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).

More recently, in Plaintiff M1/2021,[28] the plurality of the High Court stated how representations made under s 501CA(4) of the Act should be approached:
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.
23. It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered.
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…the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
25. It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
(Citations omitted).
[28] Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497 (‘Plaintiff M1/2021’), [22]-[27] (Kiefel CJ, Keane, Gordon and Steward JJ).

DIRECTION 99

The Tribunal must address the question of whether there is another reason for revocation in compliance with a ministerial direction made under s 499(1) of the Act known as ‘Ministerial Direction 99’ (“the Direction”).[29] This commenced on 3 March 2023. The Tribunal ‘stands in the shoes of the original decision-maker’ and must make ‘the correct or preferable decision’[30] based on the material currently before it.[31]
[29] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 96 ALJR 497, [4] (Rares, O’Callaghan and Jackson JJ); Nathanson v Minister for Home Affairs [2022] HCA 26 (‘Nathanson’), 2 [4].
[30] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68 (Bowen CJ and Deane J); Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [96]-[98] (Hayne and Heydon JJ); Nathanson v Minister for Home Affairs (2022) 96 ALJR 737.
[31] AEK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 175, [25] (Wigney, Abraham and Rofe JJ); Nathanson; Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78, [10]-[11] (Logan, Perry, and Beach JJ); Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51]; Beezley v Repatriation Commission (2015) 150 ALD 11, [68]Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 299 [40], 315 [100], 324-325 [134].
The following principles at cl 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(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.
(5)With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.5(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.
Clause 6 of the Direction provides that, informed by the principles in cl 5.2, a decision-maker must have regard to clauses 8 and 9, where relevant to the decision. Clause 8 of the Direction identifies the following primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)Whether the conduct engaged in constituted family violence;
(c)The strength, nature, and duration of ties to Australia;
(d)The best interests of minor children in Australia;
(e)Expectations of the Australian community.
Clause 9 of the Direction sets out a non-exhaustive list of other considerations:
(a)Legal consequences of the decision;
(b)Extent of impediments if removed;
(c)Impact on victims; and
(d)Impact on Australian business interests.
Clause 7(1) provides that appropriate weight should be given to ‘information and evidence from independent and authoritative sources’.
Clause 7(2) states that ‘Primary considerations should generally be given greater weight than the other considerations’. This does not preclude the Tribunal, however, from giving an ‘other’ consideration the equivalent of or greater weight than a primary consideration.[32]
[32] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
Clause 7(3) states that ‘One or more primary considerations may outweigh other primary considerations’. The weighing process, however, is left to individual decision-makers.[33]
[33] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, [57].

EVIDENCE
Documentary evidence

The following were taken into evidence at the hearing:
(a)G-Documents numbering 389 pages;[34]
(b)Supplementary G-documents numbering 1223 pages;[35]
(c)Document referring to the Applicant’s online attendance at five Smart Recovery sessions between 13 July and 10 August 2023;[36]
(d)Five-page Health Assessment Summary Report dated 10 August 2023 from a counsellor with The Victorian Foundation for Survivors of Torture;[37] and
(e)Two-page Statutory Declaration of the Applicant’s brother dated 23 July 2023.[38]
[34] Exhibit R1.
[35] Exhibit R2.
[36] Exhibit A1.
[37] Exhibit A2.
[38] Exhibit A3.

Applicant’s evidence

The Applicant speaks reasonably good English and his comprehension of what was being said was very good. Much of his oral evidence was given directly in English. On some occasions, however, he used the services of an interpreter in the Nuer language to clarify something or provide a response in his own language. The Tribunal has considered the Applicant’s extensive documentary evidence, including as presented by Refugee Legal and the ASRC during two revocation processes.[39] The Applicant said he is self-represented in the current matter because the ASRC could only provide documentary submissions and assist him with statements. He claimed to have asked his family to pay for legal assistance but stated: ‘no one put their hand up to help me’.
[39] Exhibit R1, 155-230.

Life prior to arrival in Australia

The Applicant’s evidence about his life in Sudan was somewhat inconsistent and aspects of it were contradicted by his mother and a younger brother, which is later discussed.
When asked what happened to his biological father, the Applicant said he ‘passed away during the war’. He claimed to have only discovered this upon re-uniting with his mother in Australia. When asked how his father died, the Applicant said he did not enquire about this. When asked if his father was a combatant or civilian, the Applicant said he ‘used to do normal work – like civilian jobs – not the Army’.
The Applicant initially stated his mother left him when he was five or seven years old and he ‘went to stay in a different village’. He later claimed to have last seen his mother in Sudan when he was 13, at which time he came under the care of her brother - his maternal uncle.
The Applicant said he and his uncle travelled to Khartoum and lived there for ‘one or two years’. He recalled completing Year 11 while living in Khartoum. The Applicant said he and his uncle moved to Egypt because others told them there were a lot of Sudanese people living there and it was unsafe to remain in Sudan. When asked to elaborate on his claim that they had ‘a lot of problems in Sudan’, the Applicant said his uncle went ‘to uni’ but found it difficult to find sufficient work and provide for their food and rent. When asked if any other problems were experienced, the Applicant said authorities wanted to ‘force uncle to be Muslim and join the Army’. The Applicant said he also feared being press-ganged into military service but this did not occur in his case.
The Applicant claimed he was unaware of his mother’s whereabouts until discovering from other ‘Sudanese people in [Egyptian] camps’ that his mother and younger sister were in Australia. After staying in Egypt for two or three years, the Applicant said his mother sponsored him and his uncle to migrate here.

Life and ties in Australia

The Applicant said his mother, two younger brothers, and a younger sister live in Australia. He has another younger sister living in Egypt but claimed to have ‘no information’ about her. After arriving in Australia in 2004 he lived with his mother for about five years. The Applicant recalled doing English language tuition and then working in several roles, including a factory and abattoir. He also recalled worked in the mining industry with his uncle in the Northern Territory and Western Australia before returning to Melbourne in 2013. When the Tribunal asked the Applicant for his uncle’s telephone number, he claimed not have it, purportedly because he changed numbers frequently and lost his uncle’s contact details. The Applicant could not recall when they were last in contact because the Applicant said he ‘did [his] own thing’ after their work in the mining industry ended over a decade ago. There is no statement in evidence from this uncle, who the Applicant referred to as a father figure.
The Applicant said after returning to Melbourne in 2013 he lived with his mother and sister until they ‘called the police’ and ‘kicked [him] out’ because he was purportedly playing music too loud in his caravan at the rear of their house. He claimed to have told his mother that if she kicked him out, he would ‘not come back again’. He claimed to be unaware they called police and took an intervention order out against him.
The Applicant said he was homeless for a time and lived with friends before being granted a public housing apartment in 2014. He retains this apartment allocation during his time in custodial settings, but stated it is a ‘high rise’ with ‘lots of bad people’ and an environment where he ‘can’t say no’ to alcohol. He intends living with his mother and sister if released, then eventually relocating to a different public housing apartment away from adverse peers.
The Applicant said he has no biological children but a ‘very close’ relationship with his nieces and nephews. He also invoked the interests of his current girlfriend’s two minor children. The Tribunal will refer to his girlfriend in these reasons as “Ms AD”. When asked the names of MS AD’s children the Applicant could not recall. He claimed to have met Ms AD sometime in January 2023 during a 10-week period of release from immigration detention. When asked where Ms AD lives, the Applicant responded: ‘she lives in [suburb redacted] or somewhere’. When asked by Ms Thompson for a more precise location, the Applicant responded: ‘I know where she lives’ without specifying an address. The Applicant agreed he moved to Adelaide on 10 February 2023 for employment,[40] very soon after he met Ms AD, and did not tell her about this. He returned from Adelaide soon after because his lawyer told him he was likely to be re-taken into immigration detention after Parliament passed the Amending Act.
[40] Exhibit R1, 142 [51].
The Applicant said one of his brothers has a partner and four children, while the other brother has a partner and one child. His younger sister has no partner or children. When asked who the fourth child named in his Personal Circumstances Form is,[41] the Applicant seemed unsure and responded: ‘I think that’s [Mr J’s] daughter’. On the form, however, the Applicant stated it was Mr G’s daughter. When referred to a Statutory Declaration dated 14 March 2023, in which he said Mr G has five children instead of four, the Applicant explained the fifth child is Mr G’s stepdaughter. When asked why his Statutory Declaration stated Mr J has two children instead of one as claimed in oral evidence, the Applicant said he forgot about one child. When asked why he could not remember some of the children’s names if he has a very close relationship with them, the Applicant said: ‘the younger ones’ were born while he was imprisoned, and he does not ‘like to ask about names on the phone’. The Applicant was unable to recall any of the children’s precise ages, often responding with several age options such as: ‘8 or 6 – something like that’. When challenged about this he responded: ‘I’m not focussed on their age numbers – I’m focussed on my issues’.
[41] Ibid 126.
When asked how often he speaks on the telephone with the ‘8- or 6-year-old’ child, the Applicant estimated it was two months ago when he said: ‘Happy Birthday on Facebook’. He also talks with the children on the telephone when speaking with his brother. His brother had told the children the Applicant is ‘on holiday’ in preference to letting them know he is imprisoned, because it is inappropriate to tell young children their uncle is imprisoned. The Applicant said only Ms AD had visited him while he was in custody, and he talks with family members on the telephone ‘because they are busy’. When asked by Ms Thompson if there are weekend visiting hours at his detention centre, the Applicant responded: ‘I’m not sure – I didn’t ask’. When asked about his documentary claim that the children whose interests he invokes would ‘struggle psychologically’ in the event of a non-revocation decision, the Applicant explained it was because he was the ‘older son’ and treats the children differently to his other siblings by ‘giving them gifts’. The Applicant agreed that his documentary claim about being the ‘only uncle’[42] is inaccurate.
[42] Ibid 127.

Alcohol and drugs

The Applicant said after arriving in Australia in 2004 he started ‘drinking, partying, and clubbing’, which was not allowed in Sudan and Egypt. He did not know how to control his alcohol intake and said: ‘it takes a while to stop’ when he starts. He drinks even more when stressed because he wants to forget his troubles, is ‘annoyed’ he does not have solutions, and there is no one he can ‘ask to fix this’. The Applicant referred to negative peers with whom he drank who keep telling him: ‘don’t worry about it’. He has used cannabis for some time because of an inability to sleep, including after incidents like being arrested. He recalled ‘smoking ice’ in 2019 but said he stopped because he did not like it.
The Applicant said he always enjoyed parties and having fun but now realises alcohol makes him do ‘stupid things’. He claimed to ‘stay out of problems a bit’ when employed. When out of work, however, he drinks every day because he is angry at himself. This is because his siblings and friends are working and have good lives. After being released from detention after his first visa cancellation was revoked by the Tribunal, the Applicant said he relapsed into alcohol abuse and offending because of COVID restrictions. He recalled: ‘I found a job, I lost a job, then went back to drinking’.

Offending

The Applicant said he never intended to hurt anybody when offending and apologised generally to ever person he has harmed, including his ‘ex’s’. He now realises violence is wrong. On several occasions the Applicant invoked unfamiliarity with Australian laws and a lack of understanding about family violence and intervention orders as contextually relevant to his circumstances. He said that a session on family law in prison[43] clarified his understanding of family violence. Prior to this the Applicant said he did not understand the difference between a Safety Notice and Intervention Order, but now realises the seriousness of family violence.
[43] Ibid 242.
When taken through his criminal history by Ms Thompson, the Applicant was frequently unable to recall the circumstances of his offending, citing intoxication or the passage of time. Incidents raised with the Applicant include:
(a)A police report relating to the assault of a female in September 2005.[44] The Applicant is alleged to have rubbed the victim’s thigh while she was standing at a telephone box, harassed her, put his face two inches from hers, again rubbed her shoulders and thighs, ignored passer-by requests to leave, and followed the victim. The Applicant said he could not remember this because it was a long time ago.
(b)A police report dated 5 September 2008 where the Applicant is alleged to have been asked to stop loudly singing lyrics from a song containing swearing, while travelling on a train.[45] He is reported to have responded: ‘I’m not Australia. I can do what I want’. It is alleged he pushed the person who asked him to stop singing to the ground when they exited the train, punched him twice to the head and neck, then walked off. The Applicant claimed not to recall this incident because of intoxication and stated: ‘Maybe it happened, maybe not – I can’t remember what happened. I was new in Australia and didn’t know about the law’.
(c)A police report dated 22 December 2015 stated that a victim waiting to catch a train was punched in the face by a heavily intoxicated Applicant without provocation.[46] The Applicant said he could not recall this because he was ‘arrested a lot of times’. When asked if he recalled hitting people in the face without reason, the Applicant stated: ‘there had to be a reason – maybe a misunderstanding because I was intoxicated’.
(d)A police Preliminary Brief referred to an incident on 5 January 2016, where the Applicant reportedly struck a person known to him to the face and head three times with a closed fist.[47] The Applicant agreed he struck this person but claimed it was because they assaulted his pregnant girlfriend. He first claimed she was ‘pushed’ on the stomach then later said she was ‘punched’.
[44] Exhibit R2, 1165.
[45] Ibid 1154.
[46] Ibid 1164.
[47] Exhibit R1, 71.

Intimate relationships and family violence

The Applicant was asked about his mother and sister taking out an intervention order against him, but said he was unaware they called police or that an order was raised. The Applicant was also referred to family violence committed during two previous intimate relationships. He said all his past relationships became ‘toxic’ and explained that ‘sometimes there are misunderstandings’. He also said some former intimate partners started incidents that led to his violence. When asked by Ms Thompson if he was saying he does not start things, the Applicant responded: ‘Some of [the incidents] they start it. Sometimes I started it. We’re not perfect - both sides’. The Applicant’s comments about family violence centred on two intimate relationships:
(a)A relationship with a woman who the Tribunal will refer to as “Ms PG”. The Applicant said he met Ms PG after moving to a public housing unit in 2014 and said they were together for 4-5 years. When asked about references in evidence to him having a wife and two children, the Applicant said Ms PG had two children from a previous relationship, but they were not his. He said during past relationships women told him he fathered a child, but he did not accept this because the birth certificates did not name him as father. The Applicant said he has no contact with the children of any previous girlfriends since their relationships ended and does not acknowledge any responsibility for these children.
(b)The Applicant said he and Ms PG abused alcohol and drugs, sometimes argued, but he ‘never hit her’. When asked by Ms Thompson if he recalled choking Ms PG or slapping her seven times,[48] the Applicant initially said he could not remember because of being drunk but added: ‘I never slapped her seven times – what would happen would not be good’. When asked how he knew that if he could not recall this incident because of intoxication, the Applicant responded: ‘I can’t remember what happened, but I know I didn’t slap her’. When asked about the cut to Ms PG’s eyebrow, the Applicant claimed Ms PG was ‘running and fell’.
(c)When asked about another incident on 27 November 2017 where he reportedly punched Ms PG in the face while in an elevator,[49] the Applicant recalled an argument between them but stated: ‘I can’t remember exactly what happened’. He could not recall kicking Ms PG in the groin. When asked if he could recall chasing Ms PG and continuing to kick and punch her, the Applicant responded: ‘Maybe it happened but it’s a long time ago and I can’t remember’. When asked if he accepted the report was accurate even though he could not remember, the Applicant said he did. He said his behaviour was ‘different’ when he was intoxicated but denied being violent: ‘I’m not violent towards my partner. If I’m violent they wouldn’t love me’.
(d)The Applicant was also asked about a relationship with a woman the Tribunal will refer to as “Ms SN”. The Applicant could not recall when he met Ms SN but later agreed with Ms Thompson it was in July 2021.[50] He said the relationship ended on 5 November 2021 when he was arrested for violent offending against her. When asked if he relapsed into alcohol abuse at the time he met Ms SN, the Applicant responded: ‘I’d started drinking a bit’. He said Ms SN called the police after incidents of family violence, but the Applicant contextualised these as verbal altercations only. He said police took him home and advised him to stay away from Ms SN. The Applicant denied subsequently breaking into Ms SN’s home through a window and said he did not push her or threaten her while holding a wine bottle.
(e)The Applicant was asked about the prosecutor’s submissions to the Court on 25 July 2022, in which the Applicant was noted to have broken in through Ms SN’s kitchen window.[51] When asked if it was him, the Applicant said he could not remember because he was ‘drunk and angry’ at the time. He denied chasing Ms SN after she ran out of the unit or pushing her down: ‘I didn’t chase her and I didn’t push her – I remember that’. He claimed Ms SN was swearing at him about his family, which provoked him. When asked about two witnesses hearing Ms SN say: ‘he’s trying to choke me’, the Applicant could not recall, citing drunkenness. When asked if he later returned to Ms SN’s home, tackled her on a nature strip, pinned her to the ground, and lifted a wine bottle over his head, the Applicant denied this. Given he pleaded guilty to these facts, Ms Thompson asked the Applicant if he was lying to the Court then or lying to the Tribunal now. The Applicant’s response did not assist the Tribunal and this line of questioning was curtailed on the basis that it is not open to the Tribunal to impugn convictions or their essential factual basis.[52]
[48] Exhibit R2, 1137-38.
[49] Exhibit R1, 69.
[50] Ibid 21 [39].
[51] Ibid 53.
[52] Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354 at 358; Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 at 244–245; HZCP v Minister for Immigration and Border Protection [2018] FCA 1803, [102] (Bromberg J)
The Applicant said he did an ‘Adapt’ course in April 2022. When asked to explain what the course was and what he learned, the Applicant said it was about ‘how to act with people’ and adapt to life in prison and outside. When asked about ‘Take Stock’ courses in 2022, he said they were about ‘trying to stay away from alcohol’, how to communicate with others, and the choices you make - like not partying. The Applicant said he had ‘learned a lot about all my addictions, alcohol, and relationships’. When asked about an Anglicare course called ‘Tuning Into Respectful Relationships’[53] the Applicant said it reminded him of past relationships with his ‘ex’s – how they started good [but] became toxic’. He also learned that ‘relationships mean a lot of things’ and ‘how to treat people good’. He intends to ‘take things slowly’ in the future and ‘listen more to people’. The Applicant explained that his rehabilitative journey is a ‘long process’ and it’s ‘not easy to change’ because he came from a different country and did not know the law in Australia. The Applicant said he would not be aggressive in future and had also ‘learned how to communicate better with police’.
[53] Exhibit R1, 241.

Recidivism risk

The Applicant repeated a claim previously made in his 2019 revocation submissions that he constitutes a low risk of reoffending because he has developed as a person and knows ‘how to deal with situations in a better way’.[54] When challenged by Ms Thompson about the repeat nature of these claims, the Applicant insisted he ‘turned [his] life around’ after the first cancellation decision, but claimed the ‘world changed due to COVID’. He agreed that he did not turn to counselling in response to COVID stressors but ‘started drinking again’.
[54] Ibid 115.

Conduct in custody

When asked on the first hearing day if he had any breaches or disciplinary hearings in custodial settings, the Applicant immediately responded: ‘No’. When recalled on the second day of the hearing, the Applicant was asked about several reports regarding misconduct and sanctions in custodial settings.[55] He frequently stated he could not ‘exactly recall what happened’ but accepted there were occasions when he ‘talked badly’ to custodial officers, or his conduct was investigated, or he attended internal disciplinary hearings, or was given sanctions like loss of privileges. On one occasion he recalled being transferred to another unit after a Governor’s Hearing, had ‘10 points’ deducted from his buy-ups, and was ‘banned from going to activities for 10 days’. He claimed this was because he intervened in a conflict between two other prisoners because he was ‘annoyed and upset about the argument and tried to disperse the quarrel’. The Applicant referred to other occasions when he was fined, or lost points, or had television or activity privileges removed.
[55] Exhibit R2, 960-963.
The Applicant was asked about an incident on 22 August 2018 when he reportedly became abusive towards staff, which required him to be placed in a holding cell. The report states he was directed to take a seat but refused and told an officer: ‘If you ever speak to me again, I will fucking kill you’.[56] The Applicant conceded ‘some of the comments were true’ and referred to prison being a ‘difficult place’ where disagreements with guards were common. He initially claimed not to recall the incident but equivocated somewhat when stating: ‘I’m not saying yes it happened or no it didn’t happen [just could not] say precisely no or yes’. When asked if he was truthful the previous day when stating he had no breaches or disciplinary hearings in custody the Applicant responded in an elaborate way through the translator as follows:
‘[He]…didn’t realise that some of the instances leading to this preliminary matters in jail in detention would some up as a part of…his case. When he responded to you yesterday he was not thinking of those things…and was thinking had all been done, where this didn’t apply to him in detention or jail. They always have incidents where they maybe see the governor, they may be two prisoners or one prisoner, they may be called to see the governor for disciplinary hearing, and he was not putting in his mind that this would be a part of how he would respond to everything he is responsible for. That is why yesterday when he responded to you, he was not thinking that those incidents would be a part of this case. He is saying that now you brought it to his attention, now he has recollection that yes that may have been some of the things he did have disciplinary in those environments, but he cannot remember exactly…But Senior Member, what Mr Bier is saying is that if there was any other matters that he doesn’t remember he is happy for you to bring those to his attention.’
[56] Ibid 962.
The following exchange occurred regarding this issue:
Mr Bier: “I apologise, because I didn’t understand yesterday when you asked me if I had any incidents from the prison or MITA or any detention centre, but yesterday I answered no, but of course I didn’t understand it, so apologies”
Senior Member: “If you didn’t understand the question, then why didn’t you say ‘I don’t understand the question’, why did you say no?”
Mr Bier: “I didn’t know you would bring it up today.”
Senior Member: “You’re saying because you didn’t think I’d bring it up you said no, but now that I’ve brought it up you can remember?”
Mr Bier: “Yeah I have it in my mind exactly, everything I do in my life at the moment I have to be focussing on it and know it and that’s why everything I can’t, and I thank you for the reminder for everything that I’ve done”.

Past chances, first cancellation decision

During cross-examination the Applicant was asked about the first cancellation decision in 2019, which was set aside by another Senior Member of this Tribunal in 2020. He understood that family violence offending against Ms PG, and breaches of a FVIO, which resulted in a 13-month sentence of imprisonment, were the reasons for visa cancellation. He also agreed the decision by the Senior Member in 2020 represented a second chance that he failed to take advantage of.
The Applicant claimed it was only in 2019 that he finally realised the nexus between his alcohol abuse and offending: ‘If I’m drinking or I use drugs, I’m different’. He attributed his relapse into alcohol abuse and further violent offending after the first visa cancellation to restrictions arising from COVID-19. When asked by Ms Thompson about the dates he was claiming to have been locked down in his public housing apartment complex, the Applicant could not recall. He said these restrictions caused him to be unable to engage with volunteer work and he relapsed after associating with adverse peers. He claimed that ‘a lot of things’ were going on in his life, which caused him to ‘get stressed’. When again challenged by Ms Thompson that publicly available information about COVID-19 lockdown periods did not correlate with his claims, the Applicant said even if it was not a lockdown, he was nevertheless confronted by COVID-related challenges.
The Applicant was asked about multiple past rehabilitative opportunities and his inability to meaningfully change the course of his life. The Applicant said that ‘last time it didn’t work’ because ‘changing takes a little bit of time’. When challenged that he had 15 years to make the changes that he still aspires to, the Applicant said it would be different ‘this time’ because he is determined to succeed. Although unable to recall all his past offending the Applicant thanked the Tribunal for bringing it to his attention, which he said made him better appreciate the consequences of his actions and reinforced the need for change. He claimed to have stopped drinking alcohol ‘forever’ since his last arrest. The Applicant claimed he had now learned that ‘addiction with alcohol’ is the primary cause of his problems and that complete abstinence is the only way to address it. The Applicant said he did one session of face-to-face counselling while living with his mother after being released from detention in late 2020 but said the agency he consulted with ‘didn’t call [him] back’. He did not follow up on this because he ‘got a job and focussed on the job’.

Medical issues

The Applicant said he has Tuberculosis that is monitored, controlled and the only medication he currently takes is an inhaler for asthma when needed. He said there is the prospect of Tuberculosis and Asthma flaring up and requiring more treatment in future.

Rehabilitation

Th Applicant said he had ‘tried [his] best but life is difficult in this world’. He does not know how he ‘ended up drinking’. On several occasions he claimed to have given up alcohol ‘forever’, but later in his evidence contradicted this by stating: ‘If I drink, I’ll have to be careful…I don’t want to go back to drinking because one bottle today is two bottles tomorrow’. When asked by Ms Thompson if he wanted to reduce his alcohol consumption or stop completely, the Applicant said: ‘stop completely because alcohol always brings [him] to court’.
The Applicant referred to ‘a lot of rehabilitation courses’ in the past and that he had ‘changed [his] life’, while concurrently conceding he relapsed into alcohol / drug use and reoffending. When asked about rehabilitative conditions on his 2007 and 2016 CCO’s, the Applicant insisted his alcohol and drugs rehabilitation only ‘started’ in 2019. When challenged by Ms Thompson, he claimed that he went to some appointments under these CCO and ‘stopped drinking a bit’ but missed other appointments and breached orders because he was ‘focussed on work’. He agreed that he did not undertake the drug and alcohol conditions on his 2018 CCO. The Tribunal inferred from the Applicant’s evidence that he was claiming to have only become serious about rehabilitative opportunities in 2019.
When asked about his revocation submissions after the first visa cancellation in 2019, in which he referred to completion of a drug and alcohol course at Melbourne Remand Centre,[57] the Applicant said he ‘did a couple of courses but…forgot that stuff quickly’. He claimed to have only had a ‘bit of an understanding’ about alcohol addiction in the past, but now intended to build on this and keep engaging with Smart Recovery. When asked about his plans to follow up on a residential rehabilitation opportunity referred to in his documentary evidence, the Applicant responded: ‘No – now I’m good. They said if I go out, to see them. My Mum is the one who will take me there’. When asked what he had learned from past alcohol and other drug (“AOD”) rehabilitation and a ‘Self Esteem’ course, the Applicant referred to hangovers being a ‘circle again’. The Tribunal found it difficult to follow the learnings he was seeking to convey from this course, which came across as general at best. He also gave a somewhat rambling response to a question about the Smart Recovery sessions, including that they ‘mean a lot of things for people like me…there are lots of people online with lots of problems and sharing how to deal and recover with their problems’. He said it was open to him to continue doing as many of these Smart Recovery sessions as needed. The Applicant said his most powerful motivator was to show his mother he could meaningfully change his life, which included no violence or ‘drugs and alcohol’ in his body. He ‘promised [his] mum’ he would not drink alcohol if released.
[57] Exhibit R1, 115.

Intentions if released in Australia

The Applicant said if released in Australia he wants to apply the welding skills he learned in prison. He also has several vocational qualifications in meat processing, cleaning, warehousing, and workplace OH&S to draw upon.[58] After completing a Traffic Management Course he also referred to possible work in the construction industry. The Applicant intends living with his mother and listening to what she tells him. He will also rely on other family members to assist him in maintaining an abstinent and law-abiding life, stay away from adverse peers, and re-engage in church and volunteering with the African community.
[58] Ibid 243-248.

Intentions if returned to South Sudan

The Applicant referred to South Sudan as ‘my country’ but said he left there when very young and expressed concerns about how he could re-establish himself without family support. He claimed not to currently be a citizen of any country and said he was worried about accessing medical treatment if needed. The Applicant agreed he could communicate in South Sudan because he speaks English, Arabic, and Nuer. He is worried about the general security situation and stated: ‘The Sudan War is never finished’. When asked if his work and vocational skills in Australia might assist him in getting a job, the Applicant said: ‘They don’t have these jobs in South Sudan’. He does not know what jobs there are but claimed they are ‘mainly for the young’. His knowledge about South Sudan is based on what he sees on television and hears from friends.

Evidence of the Applicant’s mother

The Applicant’s mother, who the Tribunal will refer to as “Madame M” speaks some English but gave her evidence predominantly with the assistance of an interpreter in the Nuer language. She claimed to have written a four-page Statutory Declaration herself and subsequently adopted its contents as true and correct. The Tribunal has considered her other documentary evidence as part of the Applicant’s earlier revocation submissions.[59]
[59] Ibid 249-252.
Having listened to Madame M’s oral evidence, the Tribunal has doubts she wrote her Statutory Declaration herself or that its contents are completely true and correct. That is because of significant inconsistencies between the documentary claims in that statement and Madame M’s oral evidence. Some of her oral claims and responses were general and inconsistent, including about the circumstances she took one child to Australia but left three older children in Sudan. The Tribunal’s concerns relate primarily but not exclusively to the section titled ‘Life in South Sudan’.
Madame M said she left Sudan for Australia in 2000 with her youngest daughter and left the Applicant and her other three children there because the war broke them up. Several questions were asked about the circumstances in which this occurred, but Madame M reverted to a general reference about ‘the war’ breaking them up.
Madame M said her husband worked for the Government as a ‘cashier’ and had ‘disappeared’. She does not know what happened to him or whether he is dead or alive. This directly contradicts information in her Statutory Declaration, in which it states he ‘was tracked down and killed in our village’.[60]
[60] Ibid 249 [7].
Madame M said the Applicant lived with her from birth until the age of 13 and went to school in Sudan. When she left Sudan with her youngest daughter, she left the Applicant and his siblings with a church friend called Martha. She said Martha took the Applicant to Khartoum because he was unwell, suffered from malaria, and there was insufficient food in the village. The Applicant then came under the care of Madame M’s brother Thomas who was living in Khartoum. Madame M said after arriving in Australia she remained in contact with Thomas and Martha in Khartoum and decided the Applicant and Thomas would go to Egypt to speed up the process of migration to Australia. When asked if there was any other reason, she said they also left Khartoum because of ‘stress’, about which she did not elaborate.

After the Applicant arrived in Australia in 2004, Madame M recalls him living with her and her daughter for about a year, and then during 2006 and 2007 said he was ‘hanging out with friends and coming and going’. Madame M initially claimed the Applicant was ‘quiet and hardworking…a really good kid’ and caused ‘no problems at all’. She also initially claimed he did not drink alcohol while living at her home. These claims are inconsistent with the Applicant’s criminal history and other more persuasive evidence, including Madame M’s later evidence during cross examination.
When asked if she and her daughter called police in 2007 and on other occasions to deal with the Applicant’s objectionable conduct, Madame M variously claimed it was only on one occasion, then two, then later agreed there were more. She recalled an occasion when he was living in a caravan at the back of her property and played music very loudly in the early hours of the morning. This disturbed her household and adjoining neighbours. Madame M asked the Applicant to turn the music down but he ‘wouldn’t listen’ so she called police. When asked if the Applicant was drunk, Madame M said she wasn’t sure, but claimed he did not appear like someone who was drunk. When referred by Ms Thompson to police reports in which she told police the Applicant was drinking heavily, Madame M accepted this: ‘Yes – he must have been drinking’. When asked about other reports about calls she and her daughter made to police, Madame M insisted there was only one call during the music-caravan incident. She then recalled another incident when the Applicant wanted ‘a certain dish cooked for dinner’, but Madame M had already prepared something else. A ‘confrontation’ ensued after which she called police and told the Applicant he had to move out because he is a ‘man now’. Madame M agreed she sought an intervention order, claiming this is how the Applicant ‘ended up living in his own place’.
In terms of the Applicant’s offending, Madame M said this occurs ‘when he drinks and argues with friends and girlfriends’. She never knew his conduct involved punching, slapping, or choking former partners. It was the Applicant’s ASRC lawyer who informed Madame M about family violence convictions rather than the Applicant.
Madame M said she has not visited the Applicant in prison or detention because she is very busy working and often does two shifts a day as a cleaner. She looked after some of her grandchildren, however, when one of the Applicant’s brothers visited him. If the Applicant is released in Australia, Madame M said the Applicant will live with her and alcohol will not be tolerated in her house. She agreed this would not stop him accessing alcohol if he wanted to. She also agreed he retained his public housing unit and could live there if he wished. When asked what would stop the Applicant relapsing into alcohol abuse, Madame M said he feels ‘embarrassed’ that his brothers have stable employment, partners, and children, and intends changing his ways because of their example. Madame M said she had a ‘thorough discussion’ with the Applicant and told him: ‘it’s not a joke anymore’. She feels he has ‘really reflected on his actions and is now ready to learn what can come next’. She is confident he ‘won’t go near alcohol again’. Madame M feels that with family support the Applicant can abstain from alcohol and live a law-abiding life.
Madame M said that in addition to her jobs she receives Centrelink payments and supports herself financially. Her other children, who all work, also assist her at times. When he was working the Applicant also assisted her financially. In recent years family members have assisted the Applicant financially with payments of $100 or $200 when required, and are willing to continue to provide financial, practical, and emotional support in the future.
If the Applicant is returned to South Sudan, Madame M said she would continue to support him financially and emotionally but fears he may not be able to establish himself or get medical treatment if needed.
When asked at the conclusion of Madame M’s evidence if he had any questions for her in re-examination, the Applicant said he did not.

Evidence of Applicant’s younger brother

The Applicant’s younger brother, who the Tribunal will refer to as “Mr G” speaks English and did not require the assistance of an interpreter. He stated that he wrote his two-page Statutory Declaration himself and adopted its contents as true and correct.[61]
[61] Exhibit A3.
Mr G says he has a defacto partner and five children who are between two and seven years of age. One of these children is a seven-year-old stepchild who Mr G has treated as his own since the child was one. Mr G said the Applicant’s relationship with his children is ‘great’ and when not imprisoned or in detention, he visited them, picked some of them up from childcare when Mr G or his partner were busy, played basketball with them, and bought presents. He said the Applicant’s relationships with a seven-year-old child and Mr G’s seven-year-old stepchild are the closest, because ‘he was around them a little bit before prison’. During the Applicant’s ten-week period of release in early 2023, the Applicant came to Mr G’s home about once a fortnight before moving interstate for work and helped Mr G ‘a bit around the house’.
When asked what contact the Applicant has with his nieces and nephews, Mr G said: ‘they just know him as uncle’ and had spoken to him ‘maybe three times in the last month’ on the telephone. Mr G has not told the children the Applicant is imprisoned but that he is ‘busy at work’. Mr G said he had not visited the Applicant in prison but did so ‘a couple of times’ in immigration detention.
Mr G says he has a high regard for the Applicant as an older brother who helped raise him like a ‘second father’. There is an eight-year age difference between them and he recalled the Applicant returning from Egypt to Sudan ‘a lot of times’ to help Mr G and their younger siblings with food and other necessities. He could not remember when those trips occurred but admired the Applicant for ‘taking that risk’. When asked why he came to Australia about two years after the Applicant, Mr G reverted to the general explanation used by other family members: ‘We separated because of the War’. He explained that after their mother and younger sister left, he, the Applicant, Mr J, and their elder sister lived together in Khartoum with their maternal uncle Thomas. When asked why only the uncle and Applicant went to Khartoum, Mr G responded: ‘I had school’. Mr G’s evidence differed considerably to other evidence before the Tribunal, including the ASRC submission that the Applicant only discovered in 2005 that his two brothers were alive.[62]
[62] Exhibit R1, 167 [10].
Mr G said the Applicant arrived in Australia two years before he did in 2008. He had seen the Applicant drink alcohol before, but said he was not violent or aggressive, and had maybe ‘two drinks and went to bed’. He said the Applicant lived and worked interstate for a ‘good while’ before returning to Melbourne. During this time Mr G went to school and won a sporting scholarship. He now works and supports his family.
When asked what he knew about the Applicant’s offending, Mr G said it related to family violence against former partners. He was unaware, however, that this conduct included punching, slapping, or choking former partners or violence against strangers. Mr G said that ‘alcohol leads to [the Applicant] being aggressive’.
Mr G is aware the Applicant’s visa was previously cancelled in 2019 and was surprised he reoffended. Mr G said the Applicant deserves another chance and has ‘faith he will change’ because God will assist him. Mr G said the Applicant previously found it ‘tough as a man’ to admit he has an alcohol problem, and it will ‘take time for him to open up’. If the Applicant is released in Australia, Mr G said he will provide financial support and wise ‘counsel’. When asked if he would continue to support the Applicant financially if he is removed, Mr G responded: ‘Yes – 100%’.
When asked at the conclusion of Mr G’s evidence if he had any questions, the Applicant sought to challenge Mr G’s recollection of what occurred when they were living in Sudan. This was more an assertion than a question, with the Applicant stating Mr G ‘doesn’t know the history and is too young to know what he is talking about’.

Evidence of Ms AD

The Applicant’s girlfriend, Ms AD, gave evidence by telephone and without the assistance of an interpreter. She claimed to have personally written a three-page Statutory Declaration and adopted its contents as true and correct.[63]
[63] Exhibit R2, 11-13.
Ms AD recalled first meeting the Applicant ‘randomly in a parking lot’ during his brief release from detention in early 2023. She said they like the same movies and she started ‘liking him from there’. They were getting to know each other for ‘like two or three weeks’ before the Applicant interstate departure for work. When asked if he told her about the interstate move, she responded: ‘He mentioned something like that’. Ms AD could not recall how long the Applicant was away for but said they called and texted each other. She agreed the Applicant was taken back into immigration detention after returning to Melbourne. They used to be in contact daily when their relationship first commenced but now stay in touch about once a week by telephone because Ms AD is very busy with work and her children. She had visited the Applicant once in immigration detention some time ago.
Ms AD said she has two minor children from a previous relationship and their biological father only sees them ‘once a month or on the weekend’. The Applicant had met her children twice while she was picking them up.
Ms AD said she met the Applicant’s uncle but could not remember his name. She also spoke to one of the Applicant’s brothers on the telephone but could not precisely recall his name. She does not know the names of any of the Applicant’s other family members. When asked what she knew of the Applicant’s offending, Ms AD responded somewhat generally: ‘He told me he was like family violence and robbery and stuff like that’ (sic). She said the Applicant told her that he and an ex-partner were ‘pretty violent against each other’. When asked if she was aware the Applicant was violent against strangers and his family violence against ex-girlfriends involved ‘punching, slapping, and choking’, Ms AD responded: ‘Yes’. Her response was somewhat tentative, however, and the Tribunal was unpersuaded about the extent of her knowledge before being asked by Ms Thompson. When asked if the Applicant would be a good influence for her children, Ms AD said the Applicant is ‘really nice’ to her children and had ‘never done anything’ to her and she is ‘not concerned at all’.
Ms AD said that after the Applicant’s release from immigration detention in early 2023 he was ‘drinking a lot because of stresses he had’. When asked to confirm the occasions she observed him drinking excessively, she replied: ‘It’s a recent thing, plus he told me…he drinks more now because he got out of the detention centre and was stressed out’. Although Ms AD confirmed she had seen the Applicant drinking ‘a few times’, she did not observe him using illicit drugs. When asked if there are any steps the Applicant should take to address his tendency to reoffend, Ms AD said he ‘should do something about his drinking…when he doesn’t drink, he does things like getting a job…he has goals he wants to achieve and is slowly working towards them’.
Ms AD said she is aware the Applicant’s visa was previously cancelled but believes he has now learned his lesson. If the Applicant is released in Australia Ms AD said she wants him to focus on getting a job and helping her with the children. She said they plan to move in together one day. When asked if they had discussed the future, Ms AD responded: ‘I’m waiting to see how things go’. When asked if he had any questions to put to Mrs AD at the conclusion of cross-examination, the Applicant did not.

Other statements

The Tribunal has considered a Statutory Declaration dated 4 May 2023 from the Applicant’s sister, whose evidence was accepted by the Respondent unchallenged.[64] She wants the Applicant to remain in Australia and believes he will separate himself from negative peers. She also believes he will be guided by family support, including for his rehabilitative needs. She believes it would be too dangerous for the Applicant to be returned to South Sudan and ‘devastating’ if he remained in detention for an indefinite period.
[64] Exhibit R1, 253-256.

PRIMARY CONSIDERATIONS
Protection of the Australian community from criminal or other serious conduct

Clause 8.1 of the Direction states:
(1) When 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. In this respect, decision-makers should have particular regard to the principle that entering or 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.
(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.

The nature and seriousness of the conduct

Under cl 8.1.1 of the Direction, the following factors are to be considered in determining the nature and seriousness of the non-citizen’s criminal and other conduct to date:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)    violent and/or sexual crimes;
(ii)   crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)    causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)   crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197 A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has reoffended 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 (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
(h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Applicant has committed numerous crimes during a 15-year period between 2006 and 2022. He has findings of guilt or convictions recorded against him every year during that period except for 2012, 2020, and 2021. Despite no convictions being recorded during these three years, he was nevertheless under some form of conditional liberty for some of that time. Many of the Applicant’s crimes are of a very serious nature and have been committed in four states and the Northern Territory. They can be categorised as follows:
(a)Crimes involving violence, threat of violence, or possession of weapons. This includes: multiple counts of intentionally causing injury; recklessly causing injury; fighting in a public place; multiple counts of contravening safety notices, family violence orders, or final intervention orders; unlawful assault; multiple counts of assaulting, obstructing or resisting police; threatening to cause damage to a police gaol; possessing a controlled weapon without excuse; and possessing ammunition without a licence;
(b)Conditional liberty offending. This includes: multiple counts of failing to answer bail; failing to comply with a Community Based Order; contravening a Community Corrections Order; and failing to appear in accordance with undertaking;
(c)Property damage, public drunkenness, or other nuisance. This includes: drunk in a public place; multiple counts of wilfully damaging property; damaging a building or motor vehicle; using threatening words in a public place; possessing a dangerous article; failing to leave licenced premises; disorderly behaviour in a public place; acting to the prejudice of security or good order in a custodial setting; failing to state name and address; multiple counts of public nuisance; and fail to obey order given by an officer.
(d)Dishonesty offences. This includes: multiple counts of theft; dealing with property suspected of being the proceeds of crime; and using false, misleading or incomplete documents.
The remarks of the Magistrates’ Court of Victoria on 3 June 2019 dealt with the Applicant’s repeated contraventions of a CCO.[65] It was noted he failed to attend multiple appointments with his Corrections Worker,[66] arrived smelling of alcohol on one occasion, and reoffended while on the CCO. An interim order to protect Ms PG was also extended.
[65] Ibid 72-93.
[66] Ibid 76 [16].
The sentencing remarks of the Magistrates’ Court of Victoria on 25 July 2022 state ‘there is very little’ in the Applicant’s history that ‘suggests he would be an appropriate candidate for a further corrections order’, because of his inability or unwillingness to comply with such orders.[67] The charges he then faced were referred to as ’very serious’, which was uncontested by his lawyer.[68] They related to offences against Ms SN, which occurred after the first cancellation decision was revoked. The Applicant was not dissuaded from repeat violent offending despite the risk of further immigration detention or removal from Australia. The Court stated during sentencing:
‘Then there is the common law assault…They are really serious allegations…they are to be a repetition in relation to the conduct over such a period of time really does cause me some concern. That is just really perhaps a longhand way of saying that the offending is very serious, Mr Deng. The orders were put in place to protect the complainant, and you wilfully attempted your communications and breaches with her, and there were very clear orders in place.
You have got a criminal history of some length with a large number of matters that relate to previously contravening family violence intervention orders, and as I understand it, against a previous partner...
As I said, there is no victim impact statement before the Court today, but I think it is self-evident that your former intimate partner must have felt distress, concern and fear when you continued to disregard the orders that had been put in place to protect her, and there was very little regard to the consequences of any breach.’[69]
[67] Ibid 59 [45].
[68] Ibid 62 [15].
[69] Ibid 63-64.

No protection finding has previously been made regarding the Applicant and he is eligible to apply for a Protection Visa. It is noteworthy he has not applied during almost 20 years in Australia, including after the first cancellation decision was revoked in 2020. Contrary to the ASRC submission that the Tribunal should not speculate about whether the Applicant will or won’t apply,[146] the Applicant stated during the hearing he intends doing so.
[146] Ibid 181 [92].
The ASRC contends the Tribunal should proceed to make protection findings based on the information currently before it. The Respondent contends the Tribunal should defer consideration of the Applicant’s claims to a Protection Visa process. For the following reasons, the Tribunal has decided to defer assessment of the Applicant’s protection claims.
The Tribunal does not accept the ASRC submission that the Class XB Subclass 202 – Global Special Humanitarian Visa previously granted to the Applicant means Australia’s ‘non-refoulement obligations have been proven’.[147] There is no evidence the Applicant has any prior status as a refugee under Article 1A of the Refugee Convention.
[147] Ibid 182 [96].
As noted earlier in the summary of the Applicant’s oral evidence, he did not raise many of the ASRC documentary submissions during the hearing, such as seeing people ‘raped and murdered’[148] or ‘hunted by Dinka’,[149] but instead expressed fears linked to practical impediments such as finding work, providing for himself without family support, and accessing medical care. He did not state where he would live if returned to South Sudan. There are also significant differences and inconsistencies between the past circumstances claimed by the Applicant in South Sudan, documentary submissions form Refugee Legal / ASRC, and the oral evidence of other witnesses. This includes who cared for the Applicant and three of his siblings after Madame M left Sudan, his father’s purported military role and fate in Sudan,[150] the reasons for his and his uncle’s departure from Sudan, the Applicant’s multiple returns to Sudan from Egypt as stated by one sibling, and his mother’s continuing contact with her brother, while caring for the Applicant in Khartoum. These inconsistencies raise concerns about the probative value of the Refugee Legal and ASRC submissions. The Tribunal prefers the oral evidence of the Applicant’s mother and brother during the hearing, which was freely given and rang true when regard was had for the totality of their testimony.
[148] Ibid 193.
[149] Ibid 163.
[150] Ibid 156 [9]-[12].
When asked about the inconsistency between his evidence about life in Sudan prior to departing for Egypt, and that of his mother and brother, the Applicant claimed he had ‘never heard’ the claims from his mother before and disputed his brother’s recollections. When asked if he accepted his mother’s evidence was true, the Applicant said he did. The only other living person with direct knowledge of what occurred during the Applicant’s time in Sudan is the maternal uncle who cared for him from the age of 13 until arrival in Australia. The Applicant worked with this uncle for several years in the mining industry, but now claims there has been little to no contact between them for a decade and he does not have his uncle’s telephone number. When the Tribunal asked the Applicant for his uncle’s telephone number to consider the necessity for further enquiries, the Applicant claimed not to have it. There is no statement from his uncle in these proceedings, despite the Applicant’s claim that his mother and uncle continue to communicate with each other. As the Applicant’s adult caregiver in Sudan and Egypt, the uncle could have provided important testimony regarding the Applicant’s non-refoulement claims, particularly given the Applicant’s evidence that he: ‘can’t remember a lot of things’ because he was too young.
There is no dispute South Sudan is a dangerous place and there is a fluctuating risk from generalised violence as hostilities between warring factions wax and wane. This risk confronts the entire population. The breadth of the current non-refoulement claims submitted by the Applicant, and inconsistent nature of some of that evidence, is such that the Tribunal is unable to make reliable findings within the available statutory timeframe (five working days after the hearing ended). His current claims, however, do not persuasively link to a Convention-related reason but appear stronger when it comes to the risk of generalised violence, or access to healthcare for any recurrence of his Tuberculosis or Asthma, or ability to find accommodation, work, and access medical support. A sense of isolation may develop from the lack of immediate access to family support, depending upon the extent to which his family in Australia continue to support him. Isolation may make him more susceptible to some of the risks referred to. The Tribunal does not accept the Applicant would be impecunious or forced to live in poverty, given the financial and other support his family members said they would continue to provide. This financial support may also be of assistance if he needs to access medical support. Importantly, if the Tribunal were to make a non-revocation decision, it remains open for the Applicant to apply for a Protection Visa. Any claims about fearing persecution or a real risk of suffering harm in South Sudan can be considered in that application by the Migration and Refugee Division of this Tribunal. It is a specialist Division focussed on assessing if protection obligations are owed under the eligibility criteria at s 36 of the Act. This in-depth assessment would be based on the most recent country information and perhaps more detailed and reliable claims by the Applicant. It is therefore appropriate to defer assessment of the Applicant’s claims to a more comprehensive and conclusive s 36A process. His protection claims would be assessed first before character or security concerns are considered.
Notwithstanding the Applicant’s intention to apply for a Protection Visa, the Tribunal accepts there is at least the possibility he may face a real risk of suffering harm if removed to South Sudan, on which some weight is placed.

Indefinite detention

The ASRC documentary claims that the Applicant faces the prospect of immigration detention indefinitely, unlawfully, or ‘until his death’[151] (permanent detention), was not repeated during the Applicant’s oral evidence. The ASRC submissions state that indefinite detention places Australia in breach of its human rights obligations under various international instruments, including the: International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (“ICCPR”); and Convention Against Torture and other Cruel and Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) (“CAT”):
‘Consequently, the legal and practical consequences of a decision not to revoke Mr Bier’s visa cancellation remain refoulement to South Sudan or indefinite detention, or a combination of the two. Both involve breaches of Australia’s international obligations, including the Convention relating to the Status of Refugees 1951 (and the 1967 Protocol) (Articles 1, 33), the International Covenant on Civil and Political Rights (Articles 6, 7, 9, 10), and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Articles 1, 2, 3, 16)…’
[151] Ibid 186 [114]-[120].
The Applicant’s criminal offending resulted in visa cancellation. This rendered him an unlawful non-citizen within the meaning of s 14 of the Act. In the event of non-revocation, he would continue to be detained under s 189 of the Act until removed or granted a visa.[152] Because of the operation of s 501E of the Act, he would be prevented from applying for visas other than a Protection Visa or a Bridging R (Class WR) Visa, pursuant to reg 2.12A of the Migration Regulations 1994 (Cth). There is no evidence how the process of removal may evolve, or even if it is reasonably practicable. The courses and consequences of events after a non-revocation decision are uncertain and include, for example, the time taken to consider a Protection Visa application, or for an appeal against an adverse decision to be considered by the Federal Court, or for a Minister to consider a request for the exercise of a non-compellable discretion.[153] Detention of a non-citizen is permissible while such applications are considered. Other factors that can influence the course of future events include rapidly changing circumstances in a receiving country, a request for voluntary removal, or possibility of third-country relocation. There is no evidence regarding any of these options at present. The Tribunal declines to accept the ASRC submissions that the Applicant ‘will almost certainly not be granted a protection visa’, or that the Minister is unlikely to exercise a non-compellable personal discretion even if an application to be made.[154] These submissions are speculative because any such applications turn on the information submitted and the often-irresoluble branches and sequels of future events.
[152] The Act, s 196.
[153] For example, under s 195A or s 197AB of the Act. Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219; Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180, 191 [16].
[154] Exhibit R1, 182 [92]; [96].
If the Applicant did apply for a Protection Visa, as he is entitled to do, and the application is rejected, he would be on a pathway to removal as soon as reasonably practicable.[155] If his non-refoulement claims were accepted, however, s 197C(3) of the Act provides that s 198 does not require or authorise removal of a person for whom a protection finding is made. In this circumstance there is the potential he may be detained for a prolonged or indefinite period, but this is not an immediate consequence of a non-revocation decision. Irrespective of options that might emerge, non-revocation would represent a significant, adverse outcome for the Applicant. It gives rise to the prospect of continuing deprivation of his personal liberty, possible deterioration of his mental health, and adverse emotional effects for those closest to him, like his mother, siblings, Ms AD, and perhaps his uncle.
[155] The Act, s 198(2B).
The Tribunal is not required to engage in speculation[156] and respectfully adopts the reasoning in Aliv Minister for Immigration and Border Protection (“Ali”):[157]
‘The prospect that future decision-making may confront the Minister with difficult choices, it is respectfully considered, cannot presently impact upon the present exercise of the power conferred by s 501CA(4). No matter how real the prospect may be of future decisions being impacted upon by the adverse assessment made by the Assistant Minister on 25 October 2017 for the purposes of s 501CA(4)(b)(i), the power exercised on that date was to be exercised – and was in fact exercised – by reference to the facts and circumstances then prevailing...’
[156] BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199.
[157] [2018] FCA 650.
In DOB18 at [35], Griffiths J reflected favourably on the reasoning in Ali and similarly cautioned against speculating about the course of future decision-making:[158]
…Justice Flick’s reasoning in Ali was adopted and applied by Logan J in Greene at [19] and by Farrell J in Turay at [40]…Contrary to the applicant’s submissions, I do not consider that the reasoning in this trio of cases is plainly wrong. Indeed, I consider that it is plainly correct. In my respectful view, it properly recognises the importance of the different stages of decision-making under the Act and the need to avoid speculation as to what might or might not occur in future decision-making...
[158] [2018] FCA 1999.
Notwithstanding the lawfulness of the Applicant’s detention and the unknown branches and sequels of future events, he is confronted by continuing detention in the event of a non-revocation decision. This may be lengthy with little, if any, specificity about when the detention may end, and may have adverse consequences for the Applicant’s mental health. This prospect therefore weighs somewhat in favour of revocation.

International reputational effects

The ASRC submissions on the Applicant’s behalf invite the Tribunal to conclude that there is nothing ‘substantive preventing Mr Bier’s refoulement…in the event of a non-revocation decision’ and that:
‘…the immediate consequence of a negative decision is removal to South Sudan, in breach of Australia’s international obligations, and that, even if a protection visa process were to occur, removal would remain a possibility, because Mr Bier could request it, or his application could be unsuccessful’.[159]
[159] Exhibit R1, 185 [111], citing Ali v Minister v Home Affairs [2020] FCAFC 109, [90] and Hernandez v Minister for Home Affairs [2020] FCA 415, [63].
The ASRC goes on to state at [112]-[113]:
‘Australia’s reputation and the standalone importance of its international obligations are also relevant for this determination. The long-standing international conventions to which Australia voluntarily committed are, as the Federal Court has observed:
[T]he consequence of non-compliance with Australia’s treaty obligations does not only impact on the person who might be returned to their home country. It impacts upon Australia’s reputation and standing in the global community.
The prospect of removal of Mr Bier from Australia to South Sudan is an extremely serious matter, going as it does to the international standing of this country. This prospect must weigh heavily, and indeed determinatively, in favour of revocation.’
The ASRC submissions seem premised on the following logic:
(a)Because of ss 189, 196, and 197C(3) of the Act, the Applicant must be detained;
(b)Because the Applicant has not applied for a Protection Visa he must be removed from Australia as soon as practicable;
(c)Even if he did lodge a Protection Visa application, removal remains a possibility because the Applicant ‘could request’ voluntary removal;
(d)Even if a protection finding were to be made, the protection against removal can be ‘abnegated by an event in s 197C(3)(c) of the Act, including if the decision in which the protection finding was made is quashed or set aside, if the Minister determines the finding no longer applies, or, if the Applicant asks in writing to be removed’ which amounts to ‘constructive refoulement’ because of pressure experienced in immigration detention.
(e)Even if the Applicant was not refouled but kept in detention indefinitely, this breaches Australia’s international obligations under various instruments to which it is a party, most notably as arbitrary detention contrary to Article 9 of the International Covenant on Civil and Political Rights (“ICCPR”).[160]
[160] Exhibit R1, 186 [footnote 58].
The ASRC submissions relate to a Protection Visa application yet to be made and proceed on the inaccurate premise that the Applicant is yet to decide whether he will apply. The Applicant confirmed during this hearing he does intend to apply. The ASRC submissions also purport to predict the likely course of future decision-making, including what a Minister may or may not do in the future. This is again speculative because of the contestable nature of future legal actions and consequences. As held in BNGP:[161] ‘It is within ordinary human experience that, over time, Ministers change and Ministers change their minds’.
[161] BNGP v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 111, [34]; [107]-[108]; [111]-[112] (Perry, Bromwich, and Kennett JJ)
Moreover, the issue of international reputational effects arising from the Australian Government possibly acting in contradiction of its international obligations is not a mandatory relevant consideration under the Direction.[162] The prospect of this is speculative, uncorroborated, and contestable. The ASRC contention about this issue, and that the Applicant will be permanently detained until he dies,[163] come across as far-fetched. There is no basis on currently available information, to find that Australia will breach its international obligations as an inevitable and direct consequence of a non-revocation decision,[164] or that the Applicant will be detained until death. The Tribunal also rejects any suggestion the Applicant’s detention is unlawful. The framework under which he is detained is properly established under Australian law. As discussed earlier, there are several possible pathways to how the Applicant’s detention may end, depending on what he or the Respondent do in the aftermath of a non-revocation decision. No weight is placed on the prospect of Australia breaching its international obligations.
[162] Plaintiff M1, [20]; Applicant S270/2019 v Minister for Immigration & Border Protection (2020) 94 ALJR 897, [33]-[35] (Nettle, Gordon, and Edelman JJ).
[163] Exhibit R1, 181 [85].
[164] BNGP v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 111 (Perry J, with whom Bromwich and Kennett JJ agreed).
Extent of impediments if removed
Clause 9.2(1) of the Direction provides:
(1) Decision-makers must consider 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:
a)        The non-citizen’s age and health;

b)        Whether there are substantial language or cultural barriers; and

c)        Any social, medical and/or economic support available to them in that country.
The Applicant is 38 years old and speaks English, Nuer, and some Arabic, but has difficulty writing in Arabic. He has been taught Sudanese culture and practices while living there and undertook education to senior high school level. The Tribunal does not discern any substantial language or cultural barriers, except for a lack of family support. What family he has lives in either Australia or Egypt. The cultural emphasis on familial bonds and support in many African countries is such that this could be a considerable barrier in the Applicant’s ability to re-establish himself if returned. The Tribunal accepts the Applicant’s evidence that alcohol is not freely available in Sudan, South Sudan, and Egypt because of religious restrictions. There is also no evidence he commenced abusing alcohol until after arriving in Australia. That said, given the Tribunal’s finding about the Applicant’s risk of relapsing into alcohol abuse, if this did occur after removal, it is unlikely he could access comparable support networks available in Australia, including to advance his unmet rehabilitative needs. It is noteworthy, however, that rehabilitative opportunities in Australia did not previously assist the Applicant in meaningfully changing the course of his life.
At his sentencing in July 2022, the Court stated: ‘there is no formal diagnosis or evidence in relation to mental health matters’[165] and there were ‘no reported issues with [his] physical health’.[166] There is reference in the documents to the Applicant being admitted to the psychiatrist clinic while imprisoned in 2022 to treat ‘Alcohol withdrawal delirium’,[167] but he was discharged without diagnosis of any mental health conditions. The Applicant has Asthma and Tuberculosis, which is monitored and treated. On his own evidence he has been able to work consistently while living in Australia and aspires to an immediate return to work if released. He is multilingual and has gained additional vocational skills during the last two decades in Australia across a variety of employment sectors. The following submissions are made on his behalf by the ASRC:
‘121. The extent of impediments that Mr Bier would face on return to South Sudan would be substantial. These impediments largely reflect the risk of harm that Mr Bier will face in South Sudan as discussed above. However, he would also face difficulty in establishing himself in South Sudan and maintaining basic living standards because he has no support network that could assist him to reintegrate into South Sudanese society. It is highly likely that Mr Bier would face destitution and experience homelessness on arrival to South Sudan.
122. Mr Bier’s deportation to South Sudan is likely to exacerbate his mental health conditions. Given he was exposed to significant trauma in South Sudan, it would be expected that a return to South Sudan would trigger a decline in this mental health. In such circumstances, Mr Bier would require the provision of additional mental health support and rehabilitation services which are not available in South Sudan. The inability to access appropriate healthcare would prevent Mr Bier from establishing himself and surviving in South Sudan. Also, Mr Bier would face challenges due to COVID-19, which would be exacerbated by his chronic lung condition. Consequently, this consideration weighs strongly in favour of revocation of Mr Bier’s visa cancellation.’[168]
[165] Exhibit R1, 64 [18].
[166] Ibid 66 [1].
[167] Exhibit R2, 110.
[168] Exhibit R1, 187.

The Applicant will be able to rely on continuing financial and emotional support from his mother and siblings if removed from Australia. They also currently support another of the Applicant’s sisters in Egypt. This may assist the Applicant in finding stable accommodation, to provide for his basic needs, and access medical support for any emergent health issues. That said, the Tribunal accepts the Applicant would be confronted by significant impediments if removed. He left Sudan in his early teenage years and has not returned. He may suffer a reoccurrence of active Tuberculosis or exacerbation of his Asthma, which has the potential to lead to serious medical consequences if unable to access treatment. His respiratory conditions may make him more susceptible to COVID as he claims, although there is a dearth of expert evidence to establish that possibility. It is conceivable in these stressful circumstances the Applicant may experience deteriorating mental health, with concomitant impacts on his ability to provide for himself. Given the nexus between stressors and the Applicant’s alcohol abuse, it is also conceivable he may relapse into substance abuse for which he won’t be able to rely on comparable supports.
After living in Australia for 19 years without familial support in South Sudan, and after a relatively lengthy period in custodial settings, the Applicant is likely to experience significant impediments and hardship in establishing himself and maintaining basic living standards comparable to those generally available to other South Sudanese citizens. This is despite being able to rely on some financial and emotional support from family in Australia.
On balance, this consideration weighs very substantially in favour of revocation.

Impact on victims

Clause 9.3(1) of the Direction states:
Decision-makers must consider the impact of the section 501 or 501CA decision 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 information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There are undoubtedly numerous victims of the Applicant’s past crimes, but no evidence about the impact of a decision in this matter on victims or their family members. This consideration is therefore not enlivened and carries neutral weight.

Impact on Australian business interests

Clause 9.4 provides that a decision-maker must have regard to any impact on Australian business interests if the non-citizen is not allowed to remain in Australia. There is no evidence that Australian business interests are enlivened within the meaning of the Direction. This consideration carries neutral weight.

Additional considerations
Double punishment

To the extent it is submitted on the Applicant’s behalf that continuing detention or removal from Australia continues punishment from his criminal sentences,[169] the Tribunal rejects this. The High Court elaborated on this in Falzon:[170]
‘Gageler and Gorddon JJ…What s 501(3A) does is to require the cancellation of a visa in certain circumstances…That power is administrative in character. It forms no part of the judicial power of the Commonwealth. In particular, the exercise of that power does not trespass on the exclusively judicial function of determining or punishing criminal guilt.
Nettle J. …As a sovereign nation, Australia has the sole right to decide which non-citizens shall be permitted to enter and remain in this country. Consequently, as was decided in Robtelmes v Brenan and has ever since been regarded as settled law, Parliament has power under s 51(xix) of the Constitution to make laws for the deportation of non-citizens for whatever reason Parliament thinks fit. And, as Gibbs CJ observed in Pochi, it is only to be expected that it should be so; for such a power is essential to national security.
By s 501(3A) of the Migration Act 1958 (Cth), Parliament has conferred on the Minister for Immigration and Border Protection one of a number of powers calculated to give effect to Australia’s sovereign right to determine which non-citizens shall be permitted to remain in this country. Relevantly, the factum of its operation is that the Minister be satisfied that the subject non-citizen does not pass the “character test” because he or she has been sentenced to death, sentenced to life imprisonment or sentenced to a term of imprisonment of 12 months or more, or because he or she has been convicted or found guilty of one or more sexually based offences involving a child, and the subject non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution. Contrary to the plaintiff’s submissions, however, it does not follow that the provision imposes a punishment. Deportation may be burdensome and severe for a non-citizen, and, in the plaintiff’s case, I have no doubt it will be. But s 501(3A), either alone or by reference to ss 189 and 196, does not increase the punishment for the crime or crimes of which the non-citizen has been convicted or found guilty.
Punishment in the relevant sense consists of the measures taken in the name of society to exact just retribution on those who have offended against the laws of society and thus, it is hoped, to facilitate their rehabilitation.83 By contrast, powers of the kind conferred on the Minister by s 501(3A) give effect to Parliament’s right to rid the nation of persons who, in the judgment of the Parliament, have shown by their offending that their continued presence here would be opposed to the safety and welfare of the nation. Powers of such a kind are measures for the protection of society.
(Footnotes omitted)
[169] Ibid 227-228.
[170] Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333, [88] (per Gageler and Gordon JJ), and [90] (per Nettle J).

CONCLUSION

The Applicant does not pass the character test. In determining whether there is ‘another reason’ for revocation, the Tribunal has applied the Direction to the specific circumstances of his case. There is no reason, on these facts, to depart from the guidance in the Direction that greater weight ‘should generally be given’ to the primary considerations.
The Applicant has committed numerous crimes, which commenced soon after arrival in Australia, and which have persisted for over 15 years. This contrasts starkly with the law-abiding and hard-working lives led by his three siblings in Australia, who come from a comparable background.
The totality of the Applicant’s offending and other misconduct is very serious. Any positive contributions made through work, volunteering, or connexions with his ethnic or faith communities, is overshadowed by his past crimes and other conduct. This includes violence against intimate partners, complete strangers, and police. Both the Applicant’s visa cancellations result from serious family violence. He displays limited insight into the costs and consequences of his offending and has not meaningfully changed the course of his life despite the court’s corrective penalties, rehabilitative opportunities, and the setting aside in 2020 of the first cancellation decision by this Tribunal. The Applicant has caused harm to numerous victims and his conduct reflects a disdain for Australia’s law enforcement framework and the rights of others. A repeat of his violent offending, including punching, kicking, or choking others could result in death or serious injury.
The Applicant advances unpersuasive excuses for his persistent relapses into substance abuse and crimes. He has substantial unmet rehabilitative needs, including for AOD abuse, anger, and violence. He does not convey a persuasive plan to meaningfully address these. Given the nexus between his substance abuse and offending, his relapse into alcohol use during a brief period of release in early 2023 is troubling. The protective factors he currently advances are comparable to those of the past, but did not assist him to change his ways. Given the Applicant’s repeated failures to learn from his mistakes and the recurring cycle of relapse into substance abuse and re-offending, the Tribunal has little confidence in his current assurances alone that things will be different ‘this time’. Any tolerance extended to the Applicant because of his almost 20-year residence in Australia has been extinguished by persistent offending. The Australian community would expect he should not hold a visa.
There is limited evidence at best of any positive contributions. The Applicant’s ties to Australia are limited and centre on a small number of immediate family members, Ms AD, and perhaps other prosocial peers in his ethnic and faith community, and therapeutic interactions. The interests of his mother, siblings, nieces, nephews, uncle, Ms AD and others he may be close to have not assisted him in remaining abstinent and law-abiding. The Applicant referred to his status as the eldest son and the responsibility this imposes on him in his family unit. Any sense of familial responsibility, however, has not assisted him to remain abstinent and law-abiding. There have been past occasions when his mother and sister did not want him in their house and intervention orders were taken out to maintain this. That said, the consistent support of the Applicant’s family is admirable, and the Tribunal has no doubt they will be saddened by a non-revocation decision. The Tribunal acknowledges the Applicant commenced a new relationship with Ms AD in early 2023 but, on current evidence, the prospects for this relationship are aspirational at best.
The Tribunal accepts the Applicant has some relationship with his nieces and nephews, particularly two seven-year-old children he had more contact with prior to imprisonment and detention. He has not had much of an opportunity to develop a relationship with the younger children. All his nieces and nephews have both parents in their lives and the Applicant has not played a parental role. There have also been long periods of absence and limited meaningful contact, including due to his imprisonment and detention. While the Tribunal accepts the Applicant wants to play a more meaningful avuncular role, his future ability to do so turns on whether he can remain abstinent from alcohol, drugs, and law-abiding. For the reasons previously expressed, the Tribunal is unpersuaded he can do so. In terms of Ms AD’s children, the Applicant has only met them twice briefly and is yet to develop a relationship with them. Despite invoking the children’s best interests in this hearing, the Applicant could not recall their names. The children have both parents in their lives to some extent, and the Applicant’s ability to play a positive role in their lives turns on the extent to which his relationship with Ms AD progresses and his ability to remain abstinent from alcohol, drugs, and law-abiding. This is problematic for the reasons previously adduced.
The Tribunal does not accept the Applicant is stateless and finds that because of his circumstances he is eligible for South Sudanese citizenship. There is no evidence the Applicant has any prior status as a refugee under Article 1A of the Refugee Convention. No protection finding has previously been made in relation to him and he remains eligible to apply for a Protection Visa. He stated during the hearing he intends to do so. For the reasons expressed earlier, the Tribunal has decided to defer assessment of his protection claims. Notwithstanding this, the Tribunal accepts it is possible the Applicant may face a real risk of suffering harm if removed to South Sudan, including because of the uncertain political and strategic situation in that country and a risk of generalised violence.
The Applicant’s detention is lawful and will continue to be so while his Protection Visa claim is considered, or an appeal against an adverse decision advanced in the Federal Court, or a Minister considers a request for the exercise of a non-compellable discretion. Other factors, earlier discussed, can also influence the often-irresoluble branches and sequels of future events, noting that the Tribunal is not required to speculate about these outcomes. Notwithstanding the lawfulness of the Applicant’s detention, a non-revocation decision would result in a continuing period of detention while events play out. This may be lengthy with little if any specificity about when the Applicant’s detention may end.
The Applicant can rely on continuing financial and emotional support from his mother and siblings if removed, which may assist him somewhat, in conjunction with the language, vocational, and other skills and experience he has gained in Australia. That said, after almost two decades in Australia, during which he has spent considerable time under conditional liberty arrangements, imprisoned, or detained, the Tribunal accepts he would be confronted by significant impediments if removed. This includes because of losing ready access to his closest sources of familial support in Australia and a lack of comparable networks in South Sudan.
A possible reoccurrence of the Applicant’s active Tuberculosis or Asthma has the potential to lead to serious medical consequences if he is unable to get required treatment. It is conceivable in these circumstances he may experience deteriorating mental health issues, with concomitant impacts on his ability to provide for his needs. Given the nexus between stressors and the Applicant’s alcohol abuse, it is also conceivable he may relapse into heavy drinking, for which comparable supports to those in Australia are unlikely to be available. This is despite the Tribunal’s acceptance of the Applicant’s evidence that he did not drink or take drugs while living in Sudan because of religious and cultural obstacles, which may limit his ability to access alcohol or drugs if returned.
Having weighed all the relevant considerations individually and cumulatively, the Tribunal is not satisfied there is another reason to revoke the cancellation decision. That is because the primary considerations Protection of the Australian community, Family violence committed by the non-citizen, and Expectations of the Australian community, substantially outweigh the primary considerations Strength, nature and duration of ties, Best interests of minor children, and the other countervailing considerations.

DECISION

It follows the Tribunal affirms the reviewable decision.

I certify that the preceding 201 (two hundred and one) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

…………[sgd]……………………….
Associate
Dated: 24 August 2023

Date of hearing:

16, 17 and 18 August 2023

Advocate for the Applicant:

Applicant, In person

Advocate for the Respondent:

Ms Sarah Thompson

Solicitors for the Respondent:

HWL Ebsworth Lawyers

Date of hearing:	16, 17 and 18 August 2023
Advocate for the Applicant:	Applicant, In person
Advocate for the Respondent:	Ms Sarah Thompson
Solicitors for the Respondent:	HWL Ebsworth Lawyers