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

[2022] AATA 2733

BKTS and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2733 (11 August 2022)

AppID:BKTS and Minister for Immigration, Citizenship and Multicultural Affairs

MatterType:  Migration

Division:GENERAL DIVISION

File Number:          2022/4169

Re:BKTS

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member C. J. Furnell

Date:11 August 2022

Place:Melbourne

The Tribunal affirms the decision under review.

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

Senior Member C. J. Furnell

Catchwords

MIGRATION – refusal to grant Protection (Class XA) visa – Migration Act 1958 (Cth) s 501(1) – applicant does not pass character test – substantial criminal record – whether to exercise discretion to refuse to grant the applicant the visa – Direction 90 – South Sudan – indefinite detention – primary and other considerations – decision under review affirmed

Legislation

Acts Interpretation Act 1901 (Cth)

Migration Act 1958 (Cth)

Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)

Migration Regulations 1994 (Cth)

Social Security Act 1991 (Cth)

Nationality Act 2011 (South Sudan)

Cases

1910307 (Refugee) [2019] AATA 4673

Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195

AIO21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 114

Ali v Minister for Home Affairs [2020] FCAFC 109

Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132

BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99

BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94

BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 878

Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 104

CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124

Commonwealth of Australia v Snell [2019] FCAFC 57

CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514

CRI026 v The Republic of Nauru [2018] HCA 19

DLJ18 v Minister for Home Affairs [2019] FCAFC 236

ENT19 v Minister for Home Affairs [2021] FCAFC 217

FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19

Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250

FYBR v Minister for Home Affairs (2019) 272 FCR 454

Galuak v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 798

HRZN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 133

Hughes v R [2017] HCA 20

Hutchinson v Comcare (No 2) [2021] FCA 284

Kayo Rerekura and Minister for Home Affairs [2019] AATA 153

LVMF and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 2471

Matthews v Minister for Home Affairs [2020] FCAFC 146

Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68

Minister for Immigration and Border Protection v Makasa [2021] HCA 1

Minister for Immigration and Citizenship v Anochie [2012] FCA 1440

Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v BFW20 by his Litigation Representative BFW20A (2020) 279 FCR 475

Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559

Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1

Nuon v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 653

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17

PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162

PQSM v Minister for Home Affairs [2019] FCA 1540

PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1050

Schuster-McFadyen v Minister for Immigration and Citizenship [2011] FCA 1303

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146

Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125

Vargas and Minister for Home Affairs (Migration) [2019] AATA 3409

VNVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3502

WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 463

XTLP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2357

XTLP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] FCA 646

Zyambo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 545

Secondary Materials

Convention 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 Relating to the Status of Refugees, opened for signature 28 July 1951,189 UNTS 150 (entered into force 22 April 1954)

Department of Home Affairs, Standard Q&A Report South Sudan 20200522142421 – Citizenship (Date of Report 26 May 2020)

Direction No 90 — Migration Act 1958 — Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)

Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)

REASONS FOR DECISION

Senior Member C. J. Furnell

11 August 2022

1. The applicant has applied to the Tribunal for review of a decision to refuse to grant his application for a Protection (Class XA) visa.

2. That decision was made on 17 May 2022 by a delegate of the respondent who was not satisfied that the applicant passed the character test set out in the Migration Act 1958 (the Act).[1]

   [1] The decision of the respondent’s delegate was made under s 501(1) of the Act. The discretion to refuse to grant a visa arising under that section applies in relation to protection visa applications: Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v BFW20 by his Litigation Representative BFW20A (2020) 279 FCR 475 at [8].

3. When reviewing that decision, the Tribunal stands in the shoes of the respondent in order to “do over again” that which was done by the respondent’s delegate.[2] 

   [2] Minister for Immigration and Border Protection v Makasa [2021] HCA 1 at [50], quoting with evident approval two earlier decisions, Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51] and Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 315 [40]-[100].

4. In those shoes, the questions ultimately in issue in this proceeding are whether the Tribunal is satisfied that the applicant passes the relevant character test and, if not so satisfied, whether it should refuse to grant the visa for which he applied.

5. I am not satisfied that the applicant passes the relevant character test and have decided to refuse to grant the applicant’s visa application. 

6. I will outline my reasons for not being so satisfied and for that decision shortly. Before doing so, however, mention should be made of some aspects of the factual context and of the material which was before the Tribunal in this proceeding.

   ASPECTS OF FACTUAL CONTEXT

7. The applicant was born in May 1992[3] in Khartoum, Sudan to parents born in what is now South Sudan.[4] There is an issue about his citizenship (to which I will return), albeit that his background is said to be South Sudanese.

   [3] TB6, p.26 but see Her Honour Judge Gaynor’s comment in 2012 that the applicant’s birth date was in fact in 1990, not 1992: G7a), pp.841-842. References to “G” are references to documents provided by the Respondent under s 501G of the Act, known as “G”-Documents.

   [4] TB1, p.2 (statutory declaration of the applicant of 7 July 2022). References to “TB” are references to documents lodged by the Applicant in the Applicant’s Tender Bundles. 

8. The applicant’s early life was difficult.

9. Sudan was experiencing a civil war and the applicant’s family endured threats due to his father’s role as a police officer and a member of the judiciary. One of the applicant’s siblings died in the fighting.[5]

   [5] Sib 1’s statement of 23 July 2018: G3T, pp.245-246.

10. Aged 11 or 12, the applicant moved to Egypt to live with his aunt in Cairo.

11. When in Egypt, the applicant is said to have suffered from racism and violence.  His arm was injured in a machete attack[6] and he suffered head trauma as a result of being hit with a hammer five times.[7]

    [6] G7a), p.839.

    [7] Neuropsychological report of Dr Karen Scally dated 31 May 2017: G3Q, p.225-226. The applicant would seem to have suffered head trauma on a number of occasions: see G7c) pp.897-898.

12. He arrived in Australia in July 2008,[8] along with an older brother (Sib 1) and a younger brother (Sib 2). He was then aged 16.

    [8] TB6, p.26.

13. The applicant has an aunt and uncle in Australia “with whom he related poorly”.[9]

    [9] G7a), p.830.

14. After arriving in Australia, the applicant and his brothers initially lived with a cousin for around 8 or 9 months but then became homeless.

15. According to Sib 1, it was around this time, in late 2008, that the applicant “lost his trust in people and started getting into trouble”.[10] This is consistent with the applicant’s statement that he started getting into trouble for stealing when he was homeless.[11]

    [10] Sib 1 statement of 23 July 2018: G3T, p.248.

    [11] TB1, p.3 [14].

16. The Department of Human Services became the applicant’s guardian.

17. The applicant became close to Ms H, a youth worker. They met in around December 2009. She observed the applicant and his brothers going through what she considers to be “one of the most debilitating settlement experiences I was privy to in a professional capacity”.[12]

    [12] Ms H’s letter of 6 July 2022: TB3, p.10.

18. The applicant and his brothers ended up living with Ms H until Sib 1 obtained his own apartment.[13]

    [13] TB1, p.2 (statutory declaration of the applicant of 7 July 2022).

19. In mid to late 2010, after having a disagreement with Sib 1,[14] the applicant returned to live with Ms H.[15]

    [14] G7, p.786-787. According to Sib 1, their disagreement was over the fact that the applicant refused to attend school.

    [15] G7a), p.842.

20. Ms H found the applicant a job “at a meat factory” where he worked in the latter part of 2010.

21. Ms H became aware that the applicant was using methamphetamine (Ice). He had graduated from using marijuana to Ice in “about 2010-2011”.[16]

    [16] TB1, p.3 [15].

22. Sib 1 and Sib 2 live in Australia.

23. The applicant has two other brothers and a sister. The sister lives in Egypt,[17] as does the applicant’s mother and one of his brothers, while his father lives in Sudan.[18]

    [17] Sib 1’s statement of 23 July 2018: G3T, p.245.

    [18] TB2, p.8 [6]-[8] (July 2022 statement of Sib 1).

24. Sib 1 has three sons aged around 10 (born in November 2011), 9 and 7 (called in these reasons Nephews A, B and C).[19]  Ms H has a daughter aged 3 (called in these reasons Ms X).[20]

    [19] G3AV, p.504.

    [20] TB3, p.10.

    MATERIAL CONSIDERED

25. In endeavouring to undertake the task entrusted to the Tribunal in this proceeding, I have had regard to the submissions made at and before, [21] and evidence adduced at, the hearing, and to certain documentary material lodged with the Tribunal prior to the hearing.

    [21]  In terms of submissions made before the hearing, reference is made to the respondent’s Statement of Facts, Issues and Contentions of 15 July 2022 (R SFIC) and the applicant’s Statement of Facts, Issues and Contentions of 8 July 2022 (A SFIC) and submissions in reply of 20 July 2022 (A REPLY).

26. At the hearing I had the benefit of hearing from the applicant, Ms H, Sib 1 and a psychologist, Tim Watson-Munro. 

27. As for documentary material lodged with the Tribunal, it comprised:

    (a)1535 pages of copy documents given by the respondent under s 501G of the Act (the “G” documents); and

    (b)126 pages of a tender bundle lodged by the applicant (the “TB” documents).

    DOES APPLICANT PASS THE CHARACTER TEST?

28. The applicant concedes that the Tribunal cannot be satisfied that he passes the character test.[22] He was right to do so.

    [22] A SFIC [4]: “There is no dispute that the applicant does not pass the “character test…”.

29. The character test is set out in s 501(6) of the Act. Under that section, a person is considered not to pass the test if any of a number of circumstances applies in relation to the person. One such circumstance is when the person has a substantial criminal record.[23] The applicant has such a record. As will soon be seen, he has been sentenced to a term of imprisonment of 12 months or more.[24]

    [23] Act, s 501(6)(a).

    [24] Act, s 501(7)(c).

30. As I am not satisfied that the applicant passes the character test, the question arises as to whether to refuse to grant the applicant the protection visa for which he applied.

    SHOULD THE APPLICANT’S APPLICATION FOR A PROTECTION VISA BE REFUSED?

31. As is clear from my decision in this proceeding, I have decided to refuse to grant the applicant a protection visa.

32. In arriving at that decision, I have endeavoured to comply with (and am bound by s 499 of the Act to comply with) an instrument entitled “Direction No 90 — Migration Act 1958 — Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 90).[25]

    [25] Direction 90 imposes requirements that are a precondition for the making of a valid decision: PQSM v Minister for Home Affairs [2019] FCA 1540 at [22] per Colvin J. “Its role is to act as a guide to the exercise of the identified powers”: see BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99 at [22].

33. Compliance with Direction 90 requires that, in deciding whether to refuse to grant the visa for which the applicant applied, consideration must be “…given the specific circumstances of the case.”[26] Direction 90 is not, however, “…an exhaustive universe; it refers to matters that a decision-maker must consider but does not confine what may be taken into account…”.[27]

    [26] Direction 90, cl 5.1(2). As Direction 90 is guidance, it is up to the Tribunal to determine what is relevant in the circumstances of the case: see Matthews v Minister for Home Affairs [2020] FCAFC 146 at [45].

    [27] Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 104 at [45] citing Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [16]. See also BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99 at [23] as to the position under Direction 90.

34. That consideration is to be undertaken informed by,[28] and in the context of a framework comprised of,[29] certain principles.

    [28] Direction 90, cl 6.

    [29] Direction 90, cl 5.2.

35. Those principles are set out in cl 5.2 of Direction 90. They are as follows:

    “5.2      Principles

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

    (4)       Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may 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

    (5)       Decision-makers must take into account the primary and other considerations relevant to the individual case.  In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.”

36. I turn now to the considerations which (to the extent that they are relevant), I am required by Direction 90 to take into account in deciding whether to refuse to grant the visa for which the applicant applied.[30]

    [30] Direction 90, cls 5.2, 5.2(5) and 6.

    CONSIDERATIONS – OVERVIEW

37. The relevant considerations are those set out in clauses 8 and 9 of Direction 90. They are divided into primary considerations and other considerations.

38. The primary considerations are protection of the Australian community from criminal or other serious conduct; whether the conduct engaged in constituted family violence; the best interests of minor children in Australia; and expectations of the Australian community.[31] 

    [31] Direction 90, cl 8.

39. The other considerations include (but are not limited to) international non-refoulement obligations; extent of impediments if removed; impact on victims; and links to the Australian community (including strength, nature and duration of ties to Australia and impact on Australian business interests).[32]

    [32] Direction 90, cl 9(1).

40. The primary considerations are generally to be given greater weight than the other considerations[33]; and one or more primary considerations may outweigh other primary considerations.[34] 

    [33] Direction 90, cl 7(2).

    [34] Direction 90, cl 7(3).

41. While primary considerations are generally afforded more weight than the other considerations, I am not precluded, in the context of any particular matter, from giving equal or greater weight to any consideration. As such, in an appropriate case, other considerations may, for instance, be given more weight than primary considerations.[35] However, in order for an “other consideration” to be afforded more weight than a primary consideration “…there must be some identified reason, in the particular circumstances, as to why it is appropriate for the particular ‘other consideration’ to be given greater weight than one or more of the three primary considerations.”[36]

    [35] Schuster-McFadyen v Minister for Immigration and Citizenship [2011] FCA 1303 at [32].

    [36] FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [11].

1. In taking considerations into account, “appropriate weight” is to be given to information and evidence from independent and authoritative sources.[37] 

   Protection of the Australian community[38]

   [37] Direction 90, cl 7(1).

   [38] Direction 90, cl 8.1.

2. I turn now to the first of the primary considerations, the protection of the Australian community from criminal or other serious conduct.

3. This consideration is one that requires the Tribunal to keep in mind the Australian Government’s commitment to the protection of the Australian community from harm as a result of such conduct by non-citizens, with particular regard being required to be had to the first of the framework principles previously identified (i.e. the principle about how there is a particular expectation engendered when conferring on non-citizens the privilege of entering or remaining in Australia).[39]

   [39] Direction 90, cl 8.1(1).

4. Taking this primary consideration into account requires that regard be had to two subsidiary considerations. They are, in the circumstances, the nature and seriousness of the applicant’s conduct to date, and the risk to the Australian community should he commit further offences or engage in other serious conduct.[40]

   Nature and seriousness of conduct[41]

   [40] Direction 90, cl 8.1(2).

   [41] Direction 90, cl 8.1.1.

5. As for the nature of the applicant’s offending to date, for a person who only arrived in Australia in 2008 and who has spent most of his time since then in prison or detention[42] he has managed to cobble together an extensive criminal history.

   [42] On behalf of the applicant, it is submitted that as at March 2022 he had been in prison or detention for 4225 days (around 11.5 years):  G3AV, p.503. His imprisonment ended in June 2017 [G5, p.752], and was followed by detention.

6. Set out below is a chart of the applicant’s offending reflecting that which was prepared by Senior Member Morris in the context of a 2018 decision of the Tribunal.[43] Like SM Morris, I have omitted from the chart traffic offences, a matter where a conviction was not recorded and any reference to four court appearances in relation to conduct of the applicant when a minor.

   [43] G3E, pp.80-107. The chart is consistent with a report of 20 October 2021 provided by the Australian Criminal Intelligence Commission: see G3A, pp.40-42.

COURT	COURT DATE	OFFENCE	COURT RESULT
Geelong Magistrates Court	15 Jun 2017	Wilfully damage property	With conviction, fined $300.00 with $79.50 statutory costs. To pay $121.00 compensation.
Geelong Magistrates Court	15 Feb 2017	Unlawful assault	14 days imprisonment. Concurrent.
Sunshine Magistrates Court	14 May 2014	Criminal damage by fire (arson)	4 months imprisonment. Concurrent.
Melbourne County Court	30 Apr 2014	Intentionally cause serious injury Armed robbery Att. Armed robbery Obtain property by deception (4 charges)	3 years imprisonment. 30 months imprisonment. 21 months of sentence concurrent. 20 months imprisonment concurrent. 2 months imprisonment on each count. Concurrent and concurrent.
Melbourne County Court	8 Nov 2012	Breach re 06/06/2012 recklessly cause serious injury. Breach re 06/06/2012 recklessly cause injury	Breach of community based order.  Order cancelled. 9 months imprisonment. Breach of community based order. 3 months imprisonment.
Sunshine Magistrates Court	07 Aug 2012	Drive in a manner dangerous	1 month imprisonment. Concurrent. Licence cancelled and disqualified for 12 months.
Melbourne County Court	06 Jun 2012	Armed robbery Recklessly cause serious injury Recklessly cause injury	413 days imprisonment. Convicted community corrections order for 18 months. To perform 150 hours unpaid community work.
Melbourne Magistrates Court	31 Aug 2011	Intentionally cause injury Dishonestly receive stolen goods theft-from shop (shopsteal) Use abusive words in public place	3 months imprisonment. Concurrent. Sentence is wholly suspended under section 27 of the Sentencing Act 1991. Operational period is 12 months. On each charge: 7 days imprisonment. Concurrent. Sentence is wholly suspended under section 27 of the Sentencing Act 1991. Operational period is 12 months. With conviction, fined $400.00.

1. While offending when a minor is not reflected in the chart, the applicant nevertheless accepts that he “has a criminal history starting in 2010 with drug possession and theft offences.”[44]

   [44] A SFIC [22].

2. In April 2011, the applicant was arrested and placed on remand, where he remained until June 2012. On his behalf, it is submitted that he then “spent about 8 months of this period in solitary confinement, in a cell for 23 hours of the day.”[45] This, at least in part, reflected an endeavour to keep the applicant safe given that, within the first few weeks of being placed on remand, boiling water was poured on him by other prisoners.[46] It might also be the case that some of the time spent by the applicant in isolation was attributable to his own poor conduct.[47]

   [45] A SFIC [27].

   [46] Sentencing remarks of Her Honour Judge Gaynor of 6 June 2012: G7a), p.843.

   [47] Report of 30 January 2012 of Dr Sullivan, psychiatrist: the applicant was said to have “stated that he had been in Charlotte Unit (a management unit) for two weeks following allegations that he had thrown hot water at someone”: G7a), p.831 [20]. Further, Dr Sullivan made reference to a report, not before the Tribunal, of August 2011 in which the applicant was described as having a history of problematic behaviour in prison involving “…recurrent placement on a management unit due to physical and verbal violence towards staff and other prisoners, contraband found in his possession, oppositional behaviour and a positive test to a random urine drug screen.”: at [28].

3. In June 2012, the applicant was convicted and sentenced on charges of armed robbery, recklessly causing serious injury and recklessly causing injury. The circumstances of this offending are outlined in sentencing remarks of Her Honour Judge Gaynor.[48]

   [48] G7a), pp.835-855.

4. The armed robbery charge arose out of an incident in March 2011.[49] The applicant, in company, stole a mobile phone from a passer-by, in the course of which he held a knife to the stomach of the victim.

   [49] In the sentencing remarks of Her Honour Judge Gaynor, the relevant events are said to have occurred in March 2010: G7a), p.836. It is assumed this is a typographical error – the charge sheet indicates that the events occurred in March 2011: G7a), p.813.

5. The recklessly causing serious injury charge arose out of an incident some nine days later, also in March 2011. The applicant used what appeared to be a metal pole to strike a person who “…suffered a laceration to his right cheek, a laceration to the left elbow, a fracture of the ulnar bone, a fracture of the left olecranon, and a compound fracture to the left ulna.”[50]

   [50] G7a), p.837.

6. The recklessly causing injury charge arose out of an incident in April 2011. The applicant, in company, approached a passer-by. Using a weapon, the applicant hit the victim in the face. Later, in hospital, the victim was reported to have suffered a laceration to his cheek and a loss of consciousness.[51]

   [51] G7a), p.837.

7. In relation to the armed robbery charge, the applicant was sentenced to a term of imprisonment of 413 days (representing time served). As for the recklessly causing serious injury and the recklessly causing injury charges, the applicant was placed on a community corrections order. The result was that the applicant was released into the community in early June 2012.

8. Within seven weeks of being so released, the applicant was again arrested,[52] this time on charges of obtaining property by deception, attempted armed robbery and armed robbery.

   [52] G3B, p.44; G6, p.750.

9. The circumstances of this offending are outlined in prosecution openings that appear to have been accepted by His Honour Judge Maidment when sentencing the applicant.[53] As for the:

   (a)  Armed robbery, it occurred in the early hours of 16 July 2012. The applicant, in company, stole cash and cigarettes from a 7/Eleven store. The applicant was said to be carrying a hammer and wearing a stocking over his head. The applicant and another threatened the store’s attendant and made him open the door to the service counter.[54]

   (b)  Attempted armed robbery, it occurred shortly after robbing the 7/Eleven store. The target was another convenience store. The applicant and three others entered the store, one carrying a knife and another carrying “a stick like weapon”. The applicant and his companions fled, however, when the store attendant brandished a rod.[55]

   [53] G3B, pp.43-50.

   [54] G7c), p.922.

   [55] G7c), p.923.

10. As a result of the applicant having been so arrested, the June 2012 community corrections order was cancelled by Her Honour Judge Gaynor in early November 2012. In the context of that cancellation, Her Honour is said to have described the applicant as a dangerous person.[56] That description was soon lent credence as, within a couple of weeks of cancellation of the order, the applicant committed the offence of intentionally causing serious injury.

    [56] G3B, p.44.

11. That offence involved the applicant, in late November 2012, pouring a combination of sugar and boiling water over the head of a corrections officer.[57]  As a result, the corrections officer not only suffered physically (said to include significant cosmetic scarring). In a January 2014 psychologist’s report, the incident was said to have had, in relation to the corrections officer, “…a significant negative impact on his emotional state and is a leading cause for his current depression and anxiety.”[58]

    [57] G7d), p.946.

    [58] G7c), p.908.

12. The circumstances in which this incident occurred are outlined in a prosecution opening which, again, appears to have been accepted by His Honour Judge Maidment when sentencing the applicant. The corrections officer concerned was said to have “fired” the applicant from his role in undertaking certain prison billet duties. Some 25 minutes later, the applicant “…approached …[the corrections officer] from behind, carrying a white laundry powder container and poured boiled water with sugar in it over …[the corrections officer’s] head which spilled down over his scalp, upper back, neck and the right side of his face.”[59]

    [59] G7d), p.945-946.

13. For this offending the applicant was convicted of intentionally causing serious injury and sentenced to three years’ imprisonment.

14. The applicant’s last conviction in February 2017 was for an assault which occurred in October 2016. It involved the applicant punching a corrections officer multiple times in the head.[60]

    [60] G6, p.762; TB69.

15. In light of the nature of the applicant’s offending as just outlined, I find his offending to have been very serious.

16. The applicant accepts that his offending was very serious.[61] Nevertheless, it is contended on his behalf that, in considering the seriousness of his offending, regard should be had to various circumstances personal to the applicant,[62] such as that he was young,[63] had suffered various traumas and suffered from an impaired cognitive function and various mental health disorders. As I see it, issues such as these might be of relevance when assessing moral culpability[64] or the risk of recidivism. They are not relevant, however, when assessing the seriousness of a person’s offending in the context of an overarching consideration concerned with community protection and a requirement to keep in mind a commitment to that protection.

    [61] A SFIC [63].

    [62] A SFIC [64]-[67].

    [63] The applicant was born in 1992, so that in the period 2010 to 2016 he was aged around 18 to 24.

    [64] As proved to be the case when the applicant was sentenced in April 2014 for offences committed in November 2012: see G3B, p.46.

17. I now turn to address the factors to which I am required by Direction 90 to have regard.[65]

    Without limiting the range of conduct that may be considered very serious, the Australian Government and the Australian community view as very serious certain crimes and conduct, including violent crimes, crimes of a violent nature against women and acts of family violence[66]

    [65] Direction 90, cl 8.1.1(1).

    [66] Direction 90, cl 8.1.1(1)(a).

18. A finding that the applicant’s offending was very serious reflects the view which the Australian Government and the Australian community are said in Direction 90 to have, noting that the offending included crimes of violence.

19. As summarised by the respondent those crimes involved “…the offences of armed robbery (x2), attempted armed robbery, recklessly cause serious injury, and recklessly cause injury, all of which involved the use of a weapon (a knife, metal bar, or other weapon); the offence of intentionally cause serious injury, which involved pouring boiling water over a prison officer; and the offence of unlawful assault, which involved punching a prison officer in the face.”[67]

    Without limiting the range of conduct that may be considered serious, the Australian government and the Australian community consider to be serious certain crimes and conduct, including crimes committed against government representatives or officials in the performance of their duties[68]

    [67] R SFIC [41].

    [68] Direction 90, cl 8.1.1(1)(b).

20. A characterisation of the applicant’s offending as at least serious is consistent with this factor, noting the applicant’s crimes of violence inflicted on corrections personnel in the performance of their duties.

    With the exception of certain crimes and conduct, the sentence imposed by the courts for a crime or crimes[69]

    [69] Direction 90, cl 8.1.1(1)(c).

21. As outlined in the chart found at paragraph [47] above, the applicant was sentenced to a term of imprisonment in respect of each of a number of offences. Indeed, as submitted by the respondent and ignoring suspended sentences, in the 14 years that he has been in Australia, the applicant has been the subject of multiple sentences of imprisonment for terms which, in aggregate, amount to roughly 10.4 years.[70]

    [70] R SFIC [44].

22. In this regard, the imposition of any term of imprisonment reflects a view that the offence concerned was serious; “…[c]ustodial terms must necessarily be viewed as a reflection of the objective seriousness of a given offence(s)….”,[71] noting that sentences “…involving terms of imprisonment are the last resort in the sentencing hierarchy…”.[72]

    The frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness[73]

    [71] Vargas and Minister for Home Affairs (Migration) [2019] AATA 3409 at [34].

    [72] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22].

    [73] Direction 90, cl 8.1.1(1)(d).

23. As submitted by the applicant, it has been roughly six years since the applicant’s last serious offending and almost ten years since his most serious offence. He has, however, been in prison or detention for the last ten years.

24. As I see it, in the context of an overarching consideration concerned with community protection and a requirement to keep in mind a commitment to that protection, the assessment required of the Tribunal by this frequency and trend factor is one that ought to be undertaken when the subject of it was free in the community. When so assessed, I find the applicant’s offending to have been both frequent and of increasing seriousness.

    The cumulative effect of repeated offending[74]

    [74] Direction 90, cl 8.1.1(1)(e).

25. The cumulative effect of the applicant’s offending has likely been significantly adverse to his victims and to the broader community. The harm caused is touched on later when discussing the nature of the harm that would be suffered were the applicant to engage in further criminal or other serious conduct.

    Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending[75]

    [75] Direction 90, cl 8.1.1(1)(f).

26. It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.

    Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour)[76]

    [76] Direction 90, cl 8.1.1(1)(g).

27. It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.

    Risk to the Australian community should Applicant commit further offences or engage in other serious conduct[77]

    [77] Direction 90, cl 8.1.2.

28. I turn now to the second matter to which consideration must be given in the context of the protection of the Australian community primary consideration: the risk to the community should the applicant commit further offences or engage in other serious conduct.

29. In considering that risk, I am required by Direction 90 to have regard, cumulatively, to:

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

    (b)the likelihood of him doing so (taking into account available information and evidence on the risk of the non-citizen re-offending and evidence of rehabilitation achieved); and

    (c)whether the risk of harm may be affected by the duration and purpose of the applicant’s intended stay, the type of visa applied for and whether there are strong or compassionate reasons for granting a short term stay visa.[78]

    [78] Direction 90, cl 8.1.2(2).

30. Individuals and the Australian community are likely to suffer significant, potentially very significant, harm should the applicant engage in further criminal conduct.

31. Based on his history of offending, individuals are likely to suffer severe physical and psychological harm,[79] and possibly death, consequent upon the infliction or threat of violence (including violence and threats involving the use of weapons), and financial harm (by way of damage to property and theft).

    [79] Reference is made to the January 2014 psychologist’s report concerning the corrections officer assaulted in November 2012: G7c), p.907. When sentencing the applicant for that assault and other offending, I note that His Honour Judge Maidment stated that the applicant’s offences were of a type that “…cause a good deal of concern, harm to the victims, not just in terms of physical harm, but in terms of the fear that is instilled and the emotional damage that is done which can last for a very considerable period of time after the offence.”: G3B, p.44.

32. As to the nature of harm to the Australian community should the applicant engage in further criminal conduct, it would reflect the nature of the harm suffered by individual members of the community resulting from that conduct. In addition, the community would be harmed by having to devote scarce resources to meet the additional law enforcement, incarceration and healthcare costs resulting from the applicant’s conduct. Moreover, unlawful violence of the type previously engaged in by the applicant engenders concerns about safety, concerns which harm the community by encouraging suspicion and limiting social cohesion.

33. As for the likelihood of the applicant engaging in further criminal conduct, I find that it is not likely that he will do so. I also find, however, that the risk of him doing so is nevertheless significant. It is not low.

34. Before delving into my reasons for these findings, I mention two preliminary matters.

35. First, even if I were to have found the applicant’s risk of recidivism to be low, in terms of Direction 90, it might be that any risk of the applicant again engaging in conduct of the type engaged in by him in the past is “unacceptable”.[80] In this regard, as outlined later, the applicant has engaged in conduct of the type to which cl 8.4(2) of Direction 90 applies. In the context of conduct of that type and pursuant to one of Direction 90’s framework principles, in some circumstances, a failure to refuse a visa may not be justified despite strong countervailing considerations and the absence of any measurable risk of physical harm to the Australian community.[81] 

    [80] Direction 90, cl 8.1.2(1): some “…conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.”

    [81] Direction 90, cl 5.2(5).

1. Second, the mere fact that the applicant has engaged in certain conduct in the past is not probative of there being a material risk of him doing so again.[82] 

   [82] See Kayo Rerekura and Minister for Home Affairs [2019] AATA 153 at [65]: “the mere commission of offences or offending conduct in the past is not, of itself, sufficient.”

2. According to Mortimer J in Splendido,[83] a “bare recitation of what a person has done in the past” is an insufficient basis for a finding as to the person’s likely future conduct. While, in some circumstances, the past may constitute a reliable guide to the future,[84] for it to do so, more than a mere outline of past conduct needs to be shown if over-valuing personality-based explanations and under-valuing situational-based explanations for conduct are  to be avoided.[85]

   [83] Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 at [77] per Mortimer J, Moshinsky J agreeing.

   [84] See, for example, Zyambo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 545 at [26], where the Court was dealing with an applicant who “had an extraordinarily lengthy criminal history which was characterised by relapses into drug use, crime and periods of imprisonment. Although there were some periods of abstinence, Mr Zyambo was prepared to engage in further criminal offending even after warnings that his visa might be revoked were he to do so.”

   [85] See Hughes v R [2017] HCA 20 at [70]-[72] per Gageler J.

3. What that “more” includes is revealed by decisions in cases such as Guo Wei Rong.[86] There it was said that:

   “The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity.” 

   [86] Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 (Guo) at 574.

4. In Splendido,[87] Mortimer J stated that:

   “The nature and circumstances of past offending are integral to any assessment of the risk, or likelihood, of future offending. Also of relevance are a range of other factors about the present circumstances of an individual which may bear on a risk of whether past offending conduct might or might not be repeated. It is these matters, and not the mere specification of a criminal record, which provide the probative basis for an assessment about the nature and extent of any risk of further offending.”

   [87] Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 at [78].

5. In Hughes,[88] the High Court grappled with the application of tendency evidence in the context of an individual charged with sexual offences against minors. In that context, Nettle J (albeit in dissent) stated (at [154]) that:

   “Evidence that an accused has committed an offence is not, of itself, significantly probative of the accused having committed another offence …To make evidence of previous offending or misconduct significantly probative of a subsequent offence there needs to be something more about the nature of the offences or the circumstances of the offending in each case, or about the victim of each offence, which rationally affects to some significant degree the assessment of the probability that the accused committed the offence.”

   [88] Hughes v R [2017] HCA 20.

6. Hence, facts need to be identified about the applicant’s circumstances, or about the nature and circumstances of his past conduct, that rationally support the assessment of the risk of the applicant engaging in the relevant conduct. Before identifying such facts, however, I should first outline the outcome of some of the various risk assessments undertaken in relation to the applicant.

7. The most recent assessment (and the one on which the applicant has elected to rely[89]) is that of Tim Watson-Munro, the psychologist called to give evidence by the applicant. In a report of July 2022, after mentioning various psychological supports being availed of by the applicant and the applicant’s intention to continue with treatment for certain conditions, Mr Watson-Munro opined that, taking “…these protective factors into account and notwithstanding a recent relapse into drug use, I believe the risk of …[the applicant] reoffending is trending from Moderate to Low. He is undertaking treatment involving both psychotherapy and medication. He has expressed remorse for his offending and a desire not to reoffend. …[The applicant] is highly motivated to become substance free. He is receiving appropriate medication, in addition to supportive counselling, which with the effluxion of time should further reduce his cravings. He has the offer of support from his extended family in Melbourne, which will provide structure and supervision for him during the day. There is also the possibility of him undertaking some employment…”.[90]

   [89] A REPLY [11].

   [90] TB10, p.115.

8. In oral evidence given at the hearing, Mr Watson-Munro refined the opinion he expressed in his report by stating that, while trending from moderate to low, the applicant’s risk of reoffending was closer to moderate than low. As I see it, that assessment is not inconsistent with my finding that the relevant risk is significant, not low.

9. Progress notes of June 2022 prepared by the psychiatrist treating the applicant in detention, Dr Lienert, include a statement that “risk to self and others is currently low”.[91] Again, as I see it, that assessment of risk is not inconsistent with my finding that the relevant risk is significant, not low. That finding addresses the recidivism risk in the future, should the applicant be released into the community. Dr Lienert was simply expressing a view as to the “current” risk, at a time when the applicant was in detention.

   [91] TB5, p.24.

10. In a report concerning a Liverpool hospital in-patient admission of the applicant for around three weeks in March and April 2022, the psychiatry registrar, Dr Power, opined that the applicant “…remains at a chronically elevated risk of serious harm to themselves and others including death owing to their underlying personality structure and ongoing substance use…”.[92]

    [92] G8j), p.1286.

11. In a protection visa assessment undertaken in April 2019, it was concluded that the applicant was not a person considered to be a danger to the Australian community. In coming to that conclusion, the decision maker said that “…the factors in favour of a finding that the applicant is a low risk of re-offending are greater than those against. In light of this I find that the applicant, at this point, presents a lower risk of re-offending than he has previously.”[93] Why one set of factors was considered to be greater than another set of factors was left unexplained. In any event, however, I note that the actual finding was not that the recidivism risk was low. It was that it was simply “lower” than it had been previously. This is not inconsistent with my finding that the applicant’s risk of recidivism is significant.

    [93] TB6, p.71.

12. In a September 2018 letter, Tom Hall, a mental health social worker, opined that the applicant represented a low risk to the Australian community.[94] The foundations for that opinion appeared to be the applicant’s pro-social behaviour in detention, his willingness to engage in services that help him meet his needs and his understanding of the possible consequences of deportation to South Sudan. I do not accept at least two elements of that foundation. As will soon be seen, the applicant’s conduct in detention has not been what I would characterise as “pro-social”, and his awareness of the consequences should he re-offend after being released into the community does not have an ameliorating impact of any significance on the risk of him re-offending.

    [94] G3O, p.204.

13. In a Tribunal decision in 2018, SM Morris found that “there is a high likelihood that the Applicant will re-offend.”[95] I note that this assessment was undertaken at a time when the supports to be provided to the applicant on his release into the community were somewhat ill-defined[96] and the Tribunal did not have the benefit of Mr Watson-Munro’s report.

    [95] GD3E, p.96 [46].

    [96] GD3E, p.94 [39].

14. In June 2012, in a community corrections order assessment outcome report, the applicant was characterised as a high-risk offender.[97]

    [97] G7a), p.781.

15. In an August 2011 pre-sentence report addressing the applicant’s suitability for a Youth Justice Centre Order, the applicant was considered not to have strong rehabilitation prospects.[98]

    [98] G7a), p.832.

16. It is clear that these risk assessments do not point in a uniform direction. I turn now to identify some matters and facts which I consider support my assessment of the risk (being that it is significant; not low).

17. The applicant’s offending was not comprised of a singular, one-off, incident. Instead, when free in the Australian community, the applicant’s offending was frequent and, often, very serious. This is suggestive of the applicant having certain traits or habits that render him prone to offend. 

18. He appeared to neither learn from nor be deterred from offending by his encounters with police and the judicial system. Only a short time after being made subject to a community corrections order and released into the community in June 2012, the applicant committed multiple serious offences. In the course of the consequent cancellation of that order in November 2012, the applicant apparently disputed the presiding judge’s characterisation of him as dangerous. A couple of weeks later he poured sugared boiling water over a corrections officer’s head. 

19. As His Honour Judge Maidment indicated in April 2014, specific deterrence would seem to be of little relevance to the applicant.[99] While the applicant might be mindful of the likely adverse consequences for him of certain conduct, he would appear to have difficulty in transposing a desire to avoid those consequences into behavioural modifications.

    [99] G3B, p.46. This conclusion was endorsed by the psychologist called by the applicant, Mr Watson-Munro.

20. This difficulty is reflective of the cognitive deficits and mental health disorders from which the applicant suffers.

21. According to Mr Watson-Munro, the applicant not only suffers from schizophrenia[100] (the symptoms of which being “…largely a function of illicit drug use”[101]) but has also suffered “…features of Post Traumatic Stress Disorder, significant depression and anxiety, low self-esteem and an overarching Substance Use Disorder”.[102]

    [100] A diagnosis confirmed in records of the psychiatrist treating the applicant in detention, Dr Lienert: see TB5, p.24.

    [101] TB10, p.114 (Mr Watson-Munro’s report of 19 July 2022).

    [102] TB10, p.113.

22. Additionally, he is said by Mr Watson-Munro to have an acquired brain injury resulting in a number of cognitive deficits in relation to matters such as impulse control.[103]  According to Mr Watson-Munro it “…is apparent that his Acquired Brain Injury has reduced his capacity to effectively problem-solve referable to consequential thinking and impulse control.”[104]

    [103] TB10, p.114.

    [104] TB10, p.114.

23. According to Mr Watson-Munro, the applicant’s cognitive functioning is well-described in two reports, one of March 2014 and the other of May 2017.[105]

    [105] TB10, p.113.

24. The March 2014 report referred to by Mr Watson-Munro was a psychological assessment report of Dr Vowels, a clinical neuro-psychologist. There it was said in relation to the applicant that:

    (a)  His longstanding intellectual abilities are likely to be in the extremely low range[106]

    (b)  The results of tests conducted suggest a “…failure to learn reliably from experience… He knows what should be done but is unable to use that knowledge to modify his habitual behaviours. He may know it is wrong but cannot use that apparent insight to prevent the behaviour …”.[107]

    (c)   “His violent reactions when he perceives himself to be under threat are those established as a child and adolescent in Sudan… but he is unable to UNLEARN these and so has become a habitual offender. … With his compromised learning ability, he will need specific behavioural programs to reduce the violent reactions and replace them with more pro social responses.”[108]

    (d)  He “…demonstrates impaired capacity for reliable self-monitoring and selective inhibition. …His ability to appreciate the wrongfulness of his conduct is impaired by his cognitive limitations and intellectual disability…”.[109]

    [106] G3P, p.217.

    [107] G3P, p.219.

    [108] Ibid.

    [109] G3P, p.222.

25. The May 2017 report referred to by Mr Watson-Munro was by a clinical neuro-psychologist, Dr Scally. There it was noted that the assessment undertaken by Dr Vowels had found, amongst other things, that the applicant had “…demonstrated poor verbal and visual memory functions and significantly impaired frontal executive functioning which includes ...poor impulse control and self-monitoring.”[110]

    [110] G3Q, p.226.

26. Dr Scally found in relation to the applicant that his “…current performances on verbal intellectual tasks collectively fell within the extremely low range…At the subtest level [the Applicant’s] verbal knowledge, abstract verbal reasoning and understanding of social norms and conventions were in the borderline range which is significantly below the level expected for his age and educational level.”[111] Testing was said to reveal “…extremely low verbal intellectual, attention and working memory abilities…”.[112]

    [111] G3Q, p.228.

    [112] G3Q, p.230.

27. Given that the applicant suffers from cognitive deficits in relation to matters such as impulse control and which, amongst other things, impair his “ability to appreciate the wrongfulness of his conduct,”[113] and that he “continues to struggle with his emotions,”[114] the remorse which the applicant is said to feel for his offending conduct[115] and any awareness he has of the adverse consequences for him should he re-offend once released into the community are not, I find, protective factors of significance.[116]

    [113] G3P, p.222.

    [114] TB10, p.113.

    [115] A SFIC [71].

    [116] In oral evidence, Mr Watson-Munro stated that, while the applicant might understand the consequences of certain actions, he had a reduced capacity to take them into account. 

28. That the applicant suffers from a lack of impulse control is consistent with his behaviour both in prison and in detention. At times it has been poor (as acknowledged by the applicant, at least in terms of his time in prison[117]).

    [117] A SFIC [74].

29. The applicant was in prison from July 2012 to around mid-2017. As is evident from the chart at paragraph [47], the applicant committed several offences while in prison. The applicant accepts that he made things hard for himself by his behaviour in prison[118] and that he “acted badly in gaol.”[119] The applicant’s own description of his November 2012 assault on a corrections officer suggests it was impulsive: “Out of nowhere I acted on it by pouring boiling water on him. It was a part of me that made me react quick.”[120] The applicant’s behaviour in prison was characterised as being of major concern in the context of his April 2015 parole application, noting what was said to be a “[c]onstant incident history.”[121]

    [118] A SFIC [27].

    [119] TB1, p.4 [25].

    [120] TB1, p.3 [21].

    [121] G5, p.626.

30. Aspects of his conduct while in prison after July 2012 are outlined in a 2018 decision of the Tribunal affirming a decision under s 501CA(4) of the Act not to revoke the cancellation of a visa held by the applicant.[122] There, at [31]-[32] it was said that:

    [122] G3E, pp.80-107.

    31. The Tribunal had before it incident reports of Corrections Victoria relating to …[the applicant’s] period of imprisonment at HM Prison Barwon. In summary, they recorded the following incidents against the Applicant’s name, which were not disputed at the hearing –

    ·On 1 October 2016 was non-compliant in returning to his cell and when ordered to enter his cell assaulted a prison officer with multiple punches to the side of the officer’s face.

    ·On 14 October 2016 destroyed a telephone.

    ·On 1 November 2016 verbally abused prison staff and refused to comply with direct instructions.

    ·On 21 November 2016 smashed and destroyed a kettle and a fan in his cell

    ·On 27 November 2016 was asked to end a phone call and in response smashed and destroyed the telephone

    ·On 28 December 2016 in response to being asked to wait a couple of minutes before returning to his cell, smashed a telephone

    ·On 26 January 2017 was asked to end a phone call and in response smashed the telephone and destroyed the handset.

    ·On 26 January 2017, when being escorted in handcuffs, spat in the face of a prison officer.

    I have omitted some of the other entries, the details of which were disputed by …[the applicant] in evidence, but note he conceded that he had “smashed four phones”.

    32. … [The applicant] admitted in cross-examination that he had set a fire in his cell, on a day when other prisoners did the same thing. He denied this was a coordinated effort, saying he did it of his own volition.”

31. In a statement made in July 2022, the applicant acknowledged smashing phones in gaol “a few times” but did not recall threatening prison staff.[123]

    [123] TB9, p.99 [15]-[17].

32. As for his time in detention, the applicant acknowledges that he has “got in arguments”.[124] In a statement made in July 2022, the applicant outlines a couple of arguments he had with detention staff over food and notes that some reports about him fighting with other detainees are true and some are not.[125] As for the true reports, the applicant acknowledges having punched other detainees on a couple of occasions.[126]

    [124] TB1, p.4 [32].

    [125] TB9. p.98.

    [126] TB9, pp.98 [7] and 99 [11].

33. Of significance to an assessment of the applicant’s recidivism risk is the likelihood or otherwise of the applicant using, or relapsing into use of, illicit drugs when free in the community.

34. There is a causal connection between the applicant’s use of illicit drugs and his past offending. The applicant acknowledges that connection. He says that “Drugs were a big part of my offending. It is important for me to go to rehab, so that I can be fit for the community.”[127] At the hearing of this proceeding, the applicant said his number one issue was drugs. Mr Watson-Munro characterised as a “primary consideration” the need for the applicant “to remain drug free.”[128] The combination of the applicant’s acquired brain injury, the resultant cognitive deficits and his illicit drug use were considered by Mr Watson-Munro to be of direct relevance to the applicant’s offending history.[129] He also appeared to consider that control of the applicant’s schizophrenia by way of medication was conditional on the applicant not relapsing into illicit drug use.[130]

    [127] TB1, p.5 [46].

    [128] TB10, p.115.

    [129] TB10, p.114.

    [130] Ibid.

35. I am not confident that the applicant will not continue to use or relapse into use of illicit drugs should he be released into the community.

36. The applicant has continued to use illicit drugs while in prison and in detention. While he denies currently using illicit drugs[131] it is clear that he did so relatively recently.

    [131] At the hearing of this proceeding, the applicant made a number of statements about his drug use which I consider to have been factually incorrect (such as that between 2011 and 2019 he was off drugs, he quit using in 2021 and in prison he never used drugs). I attribute those inaccuracies to the applicant’s cognitive deficits rather than to any attempt to mislead.

37. In March and in April 2022, the applicant spent nearly three weeks in the Liverpool Hospital Mental Health High Dependency Unit as an involuntary patient. He was there diagnosed with “mental and behavioural disorders due to use of stimulants…psychotic disorder, methylamphetamine.”[132] Hospital records described his:

    (a)  Psychiatric history as comprising schizophrenia “complicated by ongoing substance use.”

    (b)  Medical history as involving recurrent infections “secondary to IVDU” (which the Tribunal takes as being a reference to intravenous drug use).

    (c)   Drug and alcohol history as including “ongoing amphetamine and methamphetamine smoking and injection.”

    (d)  Current presentation and progress as involving “worsening paranoia, auditory hallucinations and threatening behaviour…in the setting of nonadherence to oral olanzapine and ongoing methamphetamine use”.[133]

    [132] G8j), p.1284.

    [133] G8j), p.1285.

1. I note that the applicant’s stay in hospital included a “brief episode of seclusion” after he had apparently become “threatening to staff and damaged property on the ward.”[134]

   [134] G8j), p.1286.

2. That hospital stay is not the only time the applicant has been hospitalised because of illicit drug use. In January 2019, he was hospitalised in order to treat an abscess caused by injecting Ice.[135]

   [135] G8j), pp.1278 and 1292: his use then of drugs over the Christmas period was despite the fact he had advised his psychologist in January 2019 that he had been abstinent from drugs since being detained: G8k), p.1348.

3. In prison, the applicant has tested positive to illicit drugs several times,[136] and he has admitted that he started using “bupe” while in prison.[137] Also in prison, he was found in possession of a “homemade syringe.”[138] In April 2017, a prison sentence management panel report indicated that the applicant had been involved in 14 drug-related incidents since his reception into prison in July 2012.[139] When in detention, syringes have been located when searching the applicant’s room[140] and when searching him personally.[141] He has admitted to injecting Ice.[142]

   [136] On 8 August 2011 (G6, p.692); 12 November 2012 (G6, p.698); December 2012 (G6, p.671); 1 August 2013 (G6, p.702); 16 November 2013 (G6, p.705).  In September 2014, the applicant tested positive to buprenorphine (G6, p.628) Note, in April 2019 in detention, the applicant tested positive to amphetamine: G8d), p.1079.

   [137] TB1, p.4 [35].

   [138] G5, p.724.

   [139] G5, p.591.

   [140] In October 2019: G9, p.1445.

   [141] In March 2021 (G9, p.1468) and in February 2022 (G9, p.1500).

   [142] See for example G8d), p.993- January 2022.

4. The applicant states that when free in the community he will stay away from Ice and that he wants to go to “rehab…so I can get clean.”[143] This is consistent with the supports which are intended be made available to the applicant upon his release into the community. In this regard, under a care plan formulated by Mr Hall at Ms H’s request, the applicant would be immediately connected to an appropriate drug treatment service.[144]

   [143] TB1, p.5 [46].

   [144] A SFIC [77].

5. Insofar as history is a guide, however, it is questionable whether the applicant’s issues with illicit drug use will be resolved by connecting him to a drug treatment service. In this regard, his illicit drug use while incarcerated occurred despite his having received ongoing treatment for drug dependence while in prison and in detention[145] and having completed a drug and alcohol program in 2014 (and in 2017, according to the applicant’s evidence at the hearing of this proceeding).

   [145] The treatment entailed involvement in an opioid substitution therapy program, managed while the applicant was in detention by “the IHMS drug and alcohol (D&A) team and an addiction specialist.”: G8a), p.949. He commenced with that program in late 2016 (G3Z, p.327). In the period June 2016 to May 2017, the applicant had been provided with no less than 21 individual sessions by Caraniche Drug and Alcohol Services: G3V, p.255 and G5, p.589.

6. On behalf of the applicant, it is suggested that most of the applicant’s offending occurred when, and was (at least in part) consequential upon, his mental health conditions having not been diagnosed and treated.[146] Implicitly, it is contended that those conditions are now diagnosed and are being treated successfully or will be so treated once the applicant is free in the community. 

   [146] See, for instance, A REPLY at [7].

7. Despite receiving treatment for mental health disorders and significant psychological support being made available,[147] however, the applicant’s conduct in prison and in detention has, as already outlined, not been good, and he has continued to use illicit drugs.

   [147] For instance, while in detention the applicant received (or, at least, was offered) regular counselling sessions with the NSW Service for Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS). As at December 2016, the applicant was receiving in prison medication for paranoia and schizophrenia and was engaging with a forensicare psychologist and Caraniche drug and alcohol counsellor on a weekly basis: G5, p.521. In 2016 and 2017 the applicant had frequent individual sessions with a drug and alcohol counsellor. For example, in the period June 2016 to May 2017, the applicant had been provided by Caraniche Drug and Alcohol Services with no less than 21 individual sessions: G3V, p.255 and G5, p.589. From April 2013, the applicant was receiving medication for depression and anxiety and was being visited by Mr Tom Hall, Mental Health Social Health Worker from First Step Solutions: G5, p.650. Before January 2012, the applicant was being treated for depression: G7a), pp.829-831. A mentor from the Jesuit Social Services African Visitation and Mentoring Program visited the applicant regularly for a period after October 2011: G7a), p.844. Ms H noted that the applicant had been assessed in July 2010 by a clinical psychologist attached to the Children's Court Clinic. Also in 2010, the applicant had attended Foundation House (a mental health service for refugees) on approximately four occasions.    

8. Moreover, while the applicant’s mental health conditions have been and are the subject of treatment, it is not clear that the treatment is such as to inspire confidence that the applicant will be free of problematic symptomology when in the community (albeit acknowledging his STARTTS counsellor’s opinion that the applicant’s “release into the community will facilitate his recovery”[148]). 

   [148] G8k), p.1439. See also G8k), p.1403.

9. First, as outlined earlier, it was only relatively recently that the applicant was admitted to hospital on an involuntary basis for around three weeks, presenting with “worsening paranoia, auditory hallucinations and threatening behaviour…in the setting of nonadherence to oral olanzapine and ongoing methamphetamine use”.

10. Second, on the material before me, it is not clear that the applicant is currently free of the adverse effects of his mental health disorders.  All that could be said in June 2022 by the psychiatrist treating the applicant in detention is that, since his hospital admission in March 2022 and re-starting on medication, the applicant was “more stable”. Indeed, as at June 2022, that psychiatrist thought the applicant might still be suffering from some mild, residual paranoia.[149]

    [149] TB5, p.24.

11. Third, the availability of treatment to address problematic symptomology does not necessarily imply timely engagement with that treatment. In this regard, Mr Watson-Munro was confident that, when free in the community, the applicant would be willing to engage with treatment because he was motivated to do so. I note, however, that while the applicant might be so motivated currently, this has not always been the case. For example, the applicant’s admission to hospital in March 2022 was, in part, due to his “nonadherence” to certain of his medications. Clinical notes of the applicant’s treating psychiatrist in June 2022 suggest that there was some difficulty in getting the applicant to accept recommended changes to treatment.[150] In February 2022, the applicant failed to attend any of four weekly sessions with the STARTTS counsellor.[151] Seemingly at the applicant’s request, he ceased counselling for several months in mid-2020[152] and again in late 2020.[153] In February 2020 he attended one of his four weekly sessions.[154]

    [150] TB5, p.24: It was proposed to change medication from monthly to three monthly dosage but the applicant “stated he would not accept dose above 200mg”.

    [151] G8k), p.1443.

    [152] G8k), p.1388.

    [153] G8k), p.1392.

    [154] G8k), p.1371.

12. It is submitted on behalf of the applicant that a number of factors serve to distinguish any release of the applicant now into the community from his release in June 2012 (when, as already mentioned, little time passed before he was again engaging in serious offending). 

13. First, the applicant has matured. In this regard, it is submitted that a person is less likely to offend after having reached maturity than when the person was a young adult. This general proposition is said to apply to the applicant given that he is now 10 years older than he was when he was last released into the community. Maturation does not, however, improve his intellectual functioning. As previously indicated, it was Mr Watson-Munro’s opinion that the applicant’s past offending was due to a combination of factors, one of which was his intellectual deficits. In this regard, I note that Dr Scally, in her May 2017 report, opined that “…further recovery of function is unlikely and his current significantly impaired performances on testing likely reflect his best functional cognitive capacity.”[155]

    [155] G3Q, p.230.

14. Second, it is said that the applicant will be able to adjust to being free in the community when transitioning from immigration detention better than he was able to when released from prison in June 2012. In terms of control and supervision, detention is said to represent an intermediate position relative to prison on the one hand and freedom in the community on the other. The difficulty alluded to by this aspect of the applicant’s submissions concerns the applicant’s capacity to cope with a relative lack of supervision. Since 2012, this has been untested. While the applicant intends to live with his brothers and Sib 1’s partner when released into the community, it is not unreasonable to expect that any supervision and control which they might seek to exert in relation to the applicant will be significantly less than that he currently experiences in detention.[156]  While being with his brothers will, I believe, assist the applicant’s successful reintegration into the community, the relative lack of supervision and control will not. According to Mr Watson-Munro, the applicant is a “work in progress” who has complex needs, struggles cognitively and has a limited capacity to cope. Without support, supervision and structure he would, according to Mr Watson-Munro, struggle.

    [156] I note that both Sib 1 and his partner currently work full time.

15. Thirdly, unlike the position that obtained in June 2012, it is said that the applicant’s network of family and friends has a plan in place to immediately address his support needs once released into the community.[157] In this regard, the provision of ongoing support is said to be vital. In a July 2022 report, Tom Hall, a mental health social worker with significant clinical experience, stated in relation to the applicant that “Undoubtably (sic), he will require extensive and consistent support from family, friends, and agencies to maintain and strengthen the stability he has achieved while incarcerated.”[158] Dr Scally in her May 2017 report echoed these sentiments. There it was said that the applicant “…will require significant treatment and support services to manage his mental health needs and assist with his daily functioning. Indeed, he has no history of independent functioning, or acquired occupational skills to assist him to function independently and has a very poor capacity to learn new skills unassisted.”[159]

    [157] G3AV, p.503.

    [158] TB4, p.17.

    [159] G3Q, p.230.

16. It is said that this requirement for support is acknowledged and will be met. Ms H will provide support[160] and a draft care coordination plan has been formulated by Mr Hall,[161] one which Mr Watson-Munro described as comprehensive. Perhaps understandably, the applicant is given a large part of the responsibility for various elements of the plan so that its successful implementation will, as I see it, depend in large part on the applicant’s ongoing endeavours. My concern is that the applicant has failed in those endeavours in relation to supports made available to him in the past.

    [160] TB11, 12

    [161] TB4, p.15.

17. In this regard, in contrast to the current position, the applicant’s network of friends and relatives were said in June 2012 to have been surprised by the applicant’s release into the community and unready to then provide support to him.[162] Nevertheless, as submitted by the respondent,[163] when so released, he had the support of Ms H,[164] his brothers and a mentor made available through the African Visitation and Mentoring program run by Jesuit Social Services. Accommodation was provided by Sib 1 and his partner. Educational services were provided by way of a tutor. Despite that support, the applicant promptly engaged in serious offending. It was the same in the context of the applicant’s serious offending in March 2011. At that time, he was being supported by Ms H, not least by way of provision of accommodation, a support which ended somewhat unhappily when Ms H sought to employ what she characterised as “tough love” in relation to the applicant. In another Tribunal proceeding, Ms H gave evidence that she had then evicted the applicant “after he became physically aggressive towards her.”[165]

    [162] See, for instance, A REPLY [7]. Now, according to Ms H, the applicant’s network is better able to provide support. They are said to have a better understanding of the applicant’s mental health and drug issues.

    [163] R SFIC [62].

    [164] At the time, Ms H apparently sought to connect the applicant with various services and tried to take him to appointments he was required to attend under the then subsisting community corrections order.

    [165] G3E, p.95 [45].

18. My concern about the prospects of the applicant devoting ongoing endeavours to the care plan is exacerbated given that, on the material before me, what the applicant wants to achieve in the community may well not be achievable. In this regard, it is said that the applicant has “decisively declared that he was looking forward to a future where he could be free, work and earn his living, and support his family.”[166] His plan is “…to get a job that is hands on, in a factory, like the work I did before.”[167] According to Mr Watson-Munro, however, the applicant’s low level of cognitive function means that his “employment prospects are at best limited”.[168] I note that Mr Hall considers a first order priority element of the care plan entails the applicant making an application for a disability support pension,[169] with income maintenance being said in the plan to be achieved by way of such a pension. I note that qualifying for such a pension usually requires that there be a continuing inability to work (albeit that this is not the case when the pension claimant participates in a program known as the supported wage system).[170] 

    [166] G3AW, p.508. I note that this statement has been said to demonstrate the applicant’s commitment to being a contributing member of the Australian community: G3AV, p.503.

    [167] TB1, p.6 [55].

    [168] TB10, p.115 [4].

    [169] TB4, p.16.

    [170] Social Security Act 1991 s 94.

19. On behalf of the applicant, it is said that most of his offending occurred well in the past and that there has been a de-escalation in the seriousness of the applicant’s offending since November 2012 (when the boiling water assault on a corrections officer occurred).

20. It is true that most of the applicant’s offending took place some time ago. It mostly occurred when he was free in the community. In terms of assessing the applicant’s risk of re-offending should he be released into the community, however, I do not attribute significance to this. The fact that relatively little of the applicant’s offending occurred when in the heavily monitored and supervised environment of a prison and detention facility is not, as I see it, suggestive of there being little risk of re-offending when free in the community. To the contrary, suggestive of that risk being significant is the fact that, despite the monitoring and supervision to which he would have been subject, the applicant offended while in prison and engaged in poor behaviour while in prison and detention. 

21. The third factor to which I am required to have regard in considering risk is whether it may be affected by the duration and purpose of the applicant’s intended stay, the type of visa applied for and whether there are strong or compassionate reasons for granting a short term stay visa.

22. In terms of this factor, the applicant submits that “…the nature of the applicant’s intended stay, namely as an intellectual disabled refugee who desires to stay with his family and not be returned to grave harm in South Sudan, is relevant to the level of risk the Australian community would be prepared to tolerate.”[171]

    [171] A SFIC [79].

23. As I see it, this submission fails to address the factor to which regard is required. The question raised by that factor is, essentially, directed to the effect, if any, of certain things on the risk of harm being suffered consequent on the applicant re-offending. It is not directed to the level of risk which the community may be prepared to tolerate. 

24. Consistent with the type of visa applied for by the applicant, he would appear to intend to stay in Australia permanently. This exacerbates the risk of recidivism and the risk of consequent harm simply because the longer the applicant is in Australia the greater the chance of him re-offending in Australia. 

25. As for the purpose of the applicant’s intended stay in Australia, this both ameliorates and exacerbates the risk of harm being suffered consequent upon the applicant re-offending. It ameliorates that risk given that one purpose of the applicant’s intended stay in Australia is to reside with his brothers. I find this to be a protective factor against the risk of the community being harmed by the applicant re-offending in light, in particular, of the favourable impression I had of Sib 1. Another purpose of the applicant’s stay in Australia would appear, however, to exacerbate the risk of the community being harmed by the applicant re-offending. The applicant has little work experience and, on the material before me, no significant employable skills. The likely difficulty in the applicant obtaining employment in the community is, as indicated earlier, recognised by Mr Watson-Munro and in Mr Hall’s care plan (given the significance accorded in the plan to the applicant applying for a disability support pension).

26. This has two consequences. First, the applicant may well be frustrated given that his evident desire is to “work and earn his living, and support his family.”[172] Second, absent being engaged in full time in employment, it would seem likely that the applicant will have an abundance of time on his hands. This is not conducive to pro-social behaviour given the resultant potential for boredom, especially when coupled with the relative lack of supervision and control when free in the community.

    [172] G3AW. p.508 (STARTTS Summary of Psychological Treatment of 26 August 2021).

    Conclusion

27. The protection of the Australian community consideration weighs in favour of an exercise of discretion to refuse to grant the applicant the visa for which he applied.

28. The applicant engaged in offending that was very serious. Individuals will suffer severe physical and psychological harm, and possibly death, should he again engage in such offending. The risk of him doing so is significant.

29. In these circumstances, the weight to be attributed to this consideration is also significant.

    FAMILY VIOLENCE[173]

    [173] Direction 90, cl 8.2.

30. It has not been contended and nor does the material before me suggests that this primary consideration is of relevance in this proceeding.

    THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA[174]

    [174] Direction 90, cl 8.3.

31. The third primary consideration which I am required by Direction 90 to take into account is the best interests of minor children in Australia. In taking that consideration into account, I am obliged to determine in relation to each relevant child affected by the Tribunal’s decision whether refusal to grant the applicant a visa is in the child’s best interests.

1. Detention for an indefinite period, and, indeed, the prospect of it, is likely to have severe adverse consequences for the applicant, consequences which I will address shortly.[244] It is also submitted, however, that detention of that nature will have adverse consequences in that it would see Australia in breach of certain international obligations.

   [244] Others too will suffer adverse consequences, discussed in the context of the best interests of minors and ties to the Australian community.

2. In the context of that submission, mention is made of:

   (a)Article 9 of the ICCPR which proscribes “arbitrary” detention. Citing comments on the Article of the United Nations Human Rights Committee, it is submitted that lawful detention may be arbitrary, and that detention may be arbitrary if it is not proportional.[245]

   (b)Article 7 of the ICCPR which proscribes “cruel, inhuman or degrading treatment or punishment.”

   (c)Articles 14 and 15 of the Convention on the Rights of Persons with Disabilities which require that “…persons with disabilities enjoy the right to liberty on an equal basis with others, are not arbitrarily detained, and that ‘the existence of a disability shall in no case justify a deprivation of liberty’. Under article 15, States Parties are obliged to ‘take all effective legislative, administrative, judicial or other measures to prevent persons with disabilities, on an equal basis with others, from being subjected to torture or cruel, inhuman or degrading treatment or punishment’”.[246]

   [245] A SFIC [102]; A REPLY [19].

   [246] A SFIC [105].

3. I make no finding in relation to these particular submissions,[247] for two reasons.

   [247] Albeit that I note that in a recent Tribunal decision it was said that detention of an illegal non-citizen cannot be said to be arbitrary: LVMF and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 2471 at [157], albeit in the context of an applicant who was stateless.

4. First, without finding that it is so, it nevertheless might be the case that Australia will be in breach of at least certain of the obligations identified by the applicant as a result of the applicant being detained (or facing the prospect of being detained) for an indefinite period. In the context of similar submissions, Jagot J in BNGP characterised the proposition that Australia would be in breach of certain international obligations as contestable and not manifestly correct.[248] An arguable or possible legal consequence of a decision to refuse to grant the applicant a visa is not, however, one that that the Tribunal is required to take into account.  Instead, the legal consequences I am required to take into account are “…the inevitable and direct legal consequences of the exercise of the statutory power in question”[249] (or, possibly, direct and immediate statutorily prescribed consequences[250] or legally proximate consequences[251]). Australia’s breach of the identified obligations is not such a legal consequence. 

   [248] BNGP at [44].

   [249] BNGP at [51]: Legal consequences are distinguished from claims that clearly arise or are raised squarely on the material before the Tribunal, with the concept of a “claim” being referable to an assertion of fact: see CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124 at [88]-[89].

   [250] Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146 at [84]. See also Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68 (Robertson, Moshinsky, Bromwich JJ) at [136]. Nuon v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 653 at [54].

   [251] DLJ18 v Minister for Home Affairs [2019] FCAFC 236 at [5]-[15] per Flick J; [85] per Snaden J and [24] per Bromberg J.

5. Second, having regard to the High Court’s recent decision in Plaintiff M1,[252] I am not required to make, and do not make, any findings in relation to the relevant submissions. International obligations unenacted in Australian law are not mandatory relevant considerations.[253]

   [252] Plaintiff M1 v Minister for Home Affairs [2022] HCA 17 (Plaintiff M1).

   [253] While in Plaintiff M1, the provision of the Act of particular concern was that found in s 501CA(4), it is “closely analogous” to that now addressed (s 501(1)) so that statements made in Plaintiff M1 are “equally applicable”: see XTLP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] FCA 646 at [47].

6. The applicant seeks to confine Plaintiff M1 so that it has no application where, as here, the decision the subject of review entails refusal of a protection visa.[254] It is said that the question in issue in that case was whether the assessment of non-refoulement obligations could be deferred on the basis that a person could apply for a protection visa. Indeed, the question of law stated in the special case considered in Plaintiff M1 did express itself in terms confined to a situation where the person concerned remained free to apply for a protection visa[255] (much to the consternation of Gageler J[256]). The response of the plurality in Plaintiff M1 to that question was, however, not so confined.

   [254] A REPLY [18]: two decisions are relied upon by the applicant, ENT19 v Minister for Home Affairs [2021] FCAFC 217 and Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195. According to Jagot J, however, “the reasoning in Plaintiff M1 also indicates that CWY20 and ENT19 should not be treated as persuasive authority in respect of Ministerial decisions made after the enactment of s 197C(3) of the Migration Act.”: see BNGP at [64].

   [255] Plaintiff M1 at [42].

   [256] Ibid at [46]-[47].

7. That response was (at [42]) in three parts, as follows:

   “(1) the Delegate was required to read, identify, understand and evaluate the plaintiff’s representations made in response to the invitation issued to him under s 501CA(3)(b) that raised a potential breach of Australia’s international non-refoulement obligations;

   (2) Australia’s international non-refoulement obligations unenacted in Australia were not a mandatory relevant consideration; and

   (3) to the extent Australia’s international non-refoulement obligations are given effect in the Migration Act, one available outcome for the Delegate was to defer assessment of whether the plaintiff was owed those non-refoulement obligations on the basis that it was open to the plaintiff to apply for a protection visa under the Migration Act.”

8. As reflected in part 2 of that response, the proposition that international obligations unenacted in Australia are not a mandatory relevant consideration is not conditioned on there being a remaining opportunity to have Australia’s version of those obligations tested by way of a protection visa application.

9. The unconditional nature of that proposition is reflected in the following comments of the majority:

   (a)at [20]:

   “In point of constitutional principle, an international treaty (or customary international law obligations of a similar nature) can operate as a source of rights and obligations under domestic law only if, and to the extent that, it has been enacted by Parliament. It is only Parliament that may make and alter the domestic law. The distinction also has significant consequences for discretionary decision-making under powers, such as s 501CA, conferred by statute and without specification of unenacted international obligations: such obligations are not mandatory relevant considerations attracting judicial review for jurisdictional error.

   (b)And again at [29]

   “Where the representations do include, or the circumstances do suggest, a non-refoulement claim by reference to unenacted international non-refoulement obligations, that claim may be considered by the decision-maker under s 501CA(4). But those obligations cannot be, and are not, mandatory relevant considerations under s 501CA(4) attracting judicial review for jurisdictional error — they are not part of Australia’s domestic law.”

10. The unconditional nature of that proposition is also reflected in decisions cited by the majority with evident approval. Reference was made to:

    (a)  The decision in Lam[257] in which McHugh and Gummow JJ observed:

    at [101] that “… in the case law a line has been drawn which limits the normative effect of what are unenacted international obligations upon discretionary decision-making under powers conferred by statute and without specification of those obligations … [S]uch obligations are not mandatory relevant considerations attracting judicial review for jurisdictional error.” and

    at [102] that “… it is for the judicial branch to declare and enforce the limits of the power conferred by statute upon administrative decision-makers, but not, by reference to the conduct of external affairs, to supplement the criteria for the exercise of that power.”

    (b)  The decision in CPCF,[258] in which Keane J endorsed the statement in Lam at [101] just cited and said at [490] that:

    Powers exercisable by the executive government under the common law are not limited by international law obligations not incorporated into domestic law. The provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by an Act of the Commonwealth parliament. In point of constitutional principle, an international treaty made by the executive government can operate as a source of rights and obligations under our municipal law only if, and to the extent that, it has been enacted by the parliament. It is only the parliament that may make and alter our municipal law.

    [257] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1.

    [258] CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514.

11. That the principles enunciated in Plaintiff M1 are not confined in the manner suggested by the applicant is reflected in the recent decision of the Full Court in AIO21.[259] There the Court was dealing with a decision to refuse to revoke the mandatory cancellation of a protection visa. While the Court noted that such a visa was not in issue in Plaintiff M1 it nevertheless concluded (at [51]) that “…in considering whether there was “another reason” to revoke the cancellation decision pursuant to s 501CA(4)(b)(ii), [the Tribunal] was not required to take Australia’s international non-refoulement obligations unenacted in Australia into account as a mandatory relevant consideration.”[260]

    [259] AIO21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 114.

    [260] See also HRZN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 133 at [60].

12. Despite the applicant’s removal from Australia being neither required nor authorised under the Act in the context of him being owed protection obligations, on behalf of the applicant it is nevertheless submitted that Australia would be in breach of non-refoulement obligations owed by it under international law if the applicant was not to be granted a protection visa.

13. In that event, it is said that the applicant would ask to be removed from Australia, a request he would make because he could not tolerate the prospect of further detention without an end date.[261] (I note that the applicant’s written evidence is that he will ask for his removal from Australia if his application for a protection visa is not granted.[262] As for his oral evidence at the hearing of this proceeding, at one stage the applicant simply stated that he “might” ask for removal but then he later said he would do so.)

    [261] See A SFIC [108]-[109].

    [262] TB1, p.6 [52] and [53]; TB9, p.100 [26].

14. It is said that the applicant’s removal in these circumstances would not be voluntary (a matter addressed later). Instead, it is submitted that any such removal would amount to constructive or indirect expulsion,[263] an expulsion in breach of non-refoulement obligations owed by Australia under international law.

    [263] A REPLY [23].

15. I make no finding in relation to this submission. Again, the postulated legal consequence is neither inevitable nor direct. Further, the alleged breach of an international obligation unenacted in Australian law is not a consideration in relation to which I am required to make a finding. Lastly, it is not clear that the applicant’s removal to South Sudan would be effected even if he were to request removal given the practical difficulties in establishing citizenship mentioned earlier and his apparent lack of documentation.[264]   

    [264] G3AH, p.372 [22].

16. What has just been said addresses submissions made about Australia being in breach of obligations owed under international law were it to refuse to grant the applicant a visa. Quite apart from that issue, however, it is clear that such a refusal will have serious adverse consequences for the applicant.

17. If the applicant is returned to South Sudan, he will face significant impediments. I address these later.

18. If he is not so returned, he will remain in detention for an indefinite period. As mentioned before, such detention (and, indeed, the prospect of it) is likely to have severe adverse consequences for the applicant.

19. As was recently said by the Tribunal in XTLP,[265] “[i]ndefinite detention is not to be taken lightly. It is certainly a bleak prospect which cannot be easily dismissed in a compassionate society which values human rights.” In detention, the applicant would be denied freedom of movement. His capacity to liaise with family and friends would be constrained, as would his capacity to implement any plans he might have had for his future.

    [265] XTLP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2357 at [109].

20. The mental health consequences for the applicant are likely to be severely adverse.[266] According to Mr Watson-Munro, “[p]rolonged immigration detention will have a significant and deleterious impact upon …[the applicant’s] emotional state. He will lose all hope for the future in facing at a comparatively young age, the likelihood of not reuniting with his family or progressing with a life in the community.”[267] This is the more so because:

    (a)   as submitted by the applicant, the effect of incarceration weighs particularly heavily on the applicant, given his cognitive deficits and mental health disorders.[268]

    (b)  According to a STARTTS psychologist in December 2019, the applicant’s “…stress threshold is very low, and, therefore, …[the applicant] tends to experience anxiety in response to even minor stimuli. In other words, almost any stress is likely to provoke a significant anxiety reaction.”[269]

    (c)   According to that same psychologist in February 2020, “[i]ndefinite detention is likely to exacerbate ..[the applicant’s] symptoms, thus placing him at an increased risk of serious mental deterioration, and gradually leading to exhaustion and depletion of his coping resources.”[270]

    (d)  He perceives, whether rightly or not, that he is threatened by others in detention.[271]

    [266] A SFIC [106].

    [267] TB10, p.115.

    [268] A SFIC [107]. See also a report of January 2012 of a psychiatrist, Dr Sullivan, who said it “…is likely that his anxiety and personality difficulties will result in incarceration weighing more heavily upon him.”: G7a), p.833. In oral evidence, Mr Watson-Munro stated that the applicant already had a reduced capacity to cope and that this would be exacerbated were hope for release to be taken away.

    [269] G8k), p.1367.

    [270] G8k), p.1371.

    [271] G3AV, p.502; G3AX, p.510.

    Conclusion

21. Insofar as Australia’s non-refoulement obligations find expression in domestic law, a decision to refuse to grant the applicant a visa will not result in a breach of those obligations. His removal from Australia is neither required nor authorised under the Act.

22. I make no findings on the applicant’s submissions that such a decision would result in Australia being in breach of:

    (a)a non-refoulement obligation not expressed in domestic law (by reason of the removal from Australia at his request being a constructive refoulement); or

    (b)other international law obligations not expressed in domestic law.

23. Absent removal of the applicant from Australia, he will face detention for an indefinite period. While not a consideration of non-refoulement, this nevertheless weighs against an exercise of the discretion to refuse to grant the applicant the visa for which he applied. 

24. Given the consequences for the applicant of detention for an indefinite period are likely to be seriously adverse, the weight I attribute to this consideration is significant.

    Extent of impediments if removed[272]

    [272] Direction 90, cl. 9.2.

25. In the circumstances, Direction 90 requires that consideration be given to the extent of any impediments that the applicant may face if removed from Australia to South Sudan, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of South Sudan), taking into account his age and health, whether there are substantial language or cultural barriers, and any social, medical and/or economic support available to him in South Sudan.

26. The applicant would, I find, face significant impediments in establishing himself and maintaining basic living standards on his removal to South Sudan (as conceded by the respondent[273]).

    [273] R SFIC [98].

27. The applicant lodged with the Tribunal extracts from two reports; a 2021 update report by the UNHCR entitled “UNHCR Position on Returns to South Sudan”[274]  and a 2016 report of Amnesty International.[275]

    [274] TB8, p.86.

    [275] TB7, p.80.

28. In the UNHCR report it is said that:

    (a)South Sudan continues to suffer from long-term political, inter-ethnic and communal conflict, and a weak rule of law.[276]

    (b)In January 2021, “OCHA estimated that in the course of the year 8.3 million people in South Sudan would be in need of humanitarian assistance, which represents more than 70% of the country’s population…[and] For the mid-2021 lean season it was estimated that 7.2 million people (60% of the population) would face high levels of acute food insecurity.”[277]

    (c)Access to health care remains very limited, with one physician for every 65,574 persons.[278]

    [276] TB8, p.88.

    [277] TB8, p.92.

    [278] TB8, p.94.

29. Economic and social circumstances as so described would be likely to impede severely the capacity of the applicant to establish himself and maintain basic living standards (albeit recognising the prospect that the applicant’s family in Australia might provide some financial support to the applicant). Those economic and social circumstances are, however, not ones that would affect the applicant uniquely or affect him as a member of some minority group. Rather, they have an effect on the living standards generally available to South Sudanese citizens.

30. There are, however, a number of factors that serve to distinguish the position of the applicant from that of South Sudanese citizens, generally.

31. While relatively young, the applicant has little work experience and, on the material before me, would appear to have little in the way of employable skills. As outlined earlier, I accept as accurate Mr Watson-Munro’s statement that the applicant’s low level of cognitive function means that his “employment prospects are at best limited.”

32. The difficulties in earning a living to which his lack of employability gives rise would be compounded by cultural barriers and a lack of social, economic and medical support.

33. The applicant has never been to South Sudan and has no family there. His brother has indicated that the applicant has no knowledge of the tribes in South Sudan.[279]

    [279] TB2, p.8 [13].

34. The relative lack of health care services mentioned earlier reinforces a submission made on behalf of the applicant to the effect that he will be unable to access health care for his mental health conditions if returned to South Sudan.[280]

    [280] A SFIC [60]-[117].

1. The applicant requires support, including medical and psychological services support. As noted earlier, the provision of ongoing support is said to be vital. In her May 2017, report Dr Scally said that the applicant “…will require significant treatment and support services to manage his mental health needs and assist with his daily functioning. Indeed, he has no history of independent functioning, or acquired occupational skills to assist him to function independently and has a very poor capacity to learn new skills unassisted.”[281]

   [281] G3Q, p.230.

2. Absent the support he requires, it would (as submitted by the applicant[282]) seem highly likely that the applicant will suffer a significant deterioration in his mental state. I note that the applicant says that he is “…worried about not having my medication – that is one of the most important things. Without my medication I would go through mood changes – the anxiety comes up, I feel like my head is going to come off.”[283]

   [282] A SFIC [60].

   [283] TB1, p.6 [51].

3. As a person who suffers from mental health disorders whose condition in South Sudan would likely deteriorate, the applicant would be at risk of arbitrary imprisonment in extremely poor conditions.

4. In the 2016 Amnesty International report, it is said that:

   “Individuals with mental health conditions deemed to pose a danger to themselves or others often end up arbitrarily detained in prison, even if they have not committed any crime… In prison, people with mental health disorders receive insufficient medical care, if any at all….Although general living conditions in South Sudan’s prisons are extremely poor, inmates with mental disorders are often naked, chained or held in solitary confinement.”[284]

   [284] TB7, p.84.

5. In the assessment conducted in 2019 in relation to the applicant’s claim to be owed protection obligations, it was found that the applicant’s fear of persecution in South Sudan as a person with disabilities was well founded.[285] In light of the material on which it was based,[286] I give significant weight to that finding.[287]

   [285] TB6, p.56.

   [286] See for instance the material referred to at TB6, pp.51-52.

   [287] As I may do: see Commonwealth of Australia v Snell [2019] FCAFC 57 at [76], cited in Hutchinson v Comcare (No 2) [2021] FCA 284 at [89].

6. In the result I find that, if removed from Australia to South Sudan, the applicant would face very significant impediments in establishing himself and maintaining basic living standards.

7. While not contending otherwise, the respondent nevertheless submits that this consideration should be given reduced weight because it is unlikely that the applicant will be removed to South Sudan.[288]

   [288] R SFIC [99].

8. I do not accept that submission. Removal is inherent in this consideration. What I am required to take account of are impediments to be faced by the applicant “if removed to …[his] home country.” In purporting to take this consideration into account I am unable to arrive at factual findings inconsistent with doing so. While I need not take account of a consideration which is irrelevant in the circumstances, the respondent is not submitting that this consideration is irrelevant (and nor was its relevance an issue in contention between the parties or one which the applicant was asked to address[289]).  When taking this consideration into account the likelihood of removal is irrelevant. Removal is assumed.

   [289] It might have been argued that this consideration was irrelevant as the impediments to be faced by the applicant on removal to South Sudan are impediments that would only arise as a result of a choice he made and, as such, would not be a direct or proximate or even likely consequence of a refusal to grant the applicant a visa. Arguably, the persons whose claims are to an extent regulated by Direction 90 are persons who seek to remain in, or be allowed in to, Australia. Hence, considerations to be taken into account under Direction 90 are not directed to persons who voluntarily leave Australia.

9. Currently, however, the applicant will only be removed if he asks to be removed and if his removal is practicable.

10. Hence, the impediments the applicant would face on removal to South Sudan are ones he would only need face because of a choice he made. (It would also be one made despite what I infer would be the likely objections of Sib 1, his older brother,[290] a person whose views the applicant clearly respects. Even then, practical difficulties may well arise in effecting a removal given difficulties in establishing the applicant’s citizenship and his lack of documentation.) 

    [290] See TB2, p.8 [13]-[14].

11. It is said that the choice to ask to be removed would not be one made voluntarily, given that the alternative, should the grant of a visa be refused, would be the admittedly bleak prospect of detention for an indefinite term.

12. As I see it, however, choices are often made in the context of stressors. That, of itself, is not sufficient to deprive the relevant choice of its voluntary character. While the severity of a stressor may be such as, in reality, to leave little option but to choose a particular course, on the material before me, I am not satisfied that the prospect of detention for an indefinite term is such a stressor. It is by no means an attractive prospect. That fact, however, does not render involuntary a choice to ask for removal from Australia.  

13. Accordingly, the impediments to maintaining basic living standards the applicant will face in South Sudan will be a direct consequence of a choice he makes voluntarily. Any nexus between those impediments and a decision to refuse to grant the applicant a visa will be relatively remote. This serves to reduce the weight otherwise attributable to this consideration.

    Conclusion

14. I find that this consideration weighs in favour of not exercising the discretion to refuse to grant the applicant a visa.

15. It does so to a moderate extent. The applicant would face very significant impediments in establishing himself and maintaining basic living standards, if removed to South Sudan, at least in part because of a choice voluntarily made by him.

    Impact on victims[291]

    [291] Direction 90, cl 9.3.

16. In the circumstances, Direction 90 requires that consideration be given to the impact of a decision under s 501 of the Act on members of the Australian community, including victims of the applicant’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the applicant has been afforded procedural fairness.

17. Neither party contended that this consideration was of relevance in this proceeding.[292]

    Links to the Australian community, including strength, nature and duration of the Applicant’s ties to Australia and the impact on Australian business interests[293]

    [292] R SFIC [87].

    [293] Direction 90, cls 9.4, 9.4.1 and 9.4.2.

18. In the circumstances, Direction 90 requires that this “other consideration” be addressed by reference to two subsidiary considerations.

19. The first concerns the strength, nature and duration of ties to Australia. The second concerns the impact on Australian business interests.

    Strength, nature and duration of ties[294]

    [294] Direction 90, cl 9.4.1.

20. As to this first subsidiary consideration, in the circumstances:

    (a)It requires that regard be had to any impact of a decision to refuse to grant the applicant a visa on those of the applicant’s immediate family members in Australia who are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.[295]

    (b)While not expressly required by Direction 90 to do so, I will nevertheless, consider the strength, duration and nature of any ties that the applicant has to the Australian community, having regard to how long he has resided in Australia and the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.[296]

    [295] Direction 90, cl 9.4.1(1).

    [296] Direction 90, cl 9.4.1(2).

21. The applicant’s immediate family members in Australia are Sib 1 and Sib 2, both of whom are Australian citizens.[297]

    [297] A SFIC [51].

22. I accept that the brothers are very close to the applicant,[298] are very keen for him to be granted a visa and released into the community and are genuine in their intent to support the applicant on his release. Sib 2 suggests that his family will be negatively impacted if the applicant is not released into the community.[299] It is clear from Sib 1’s statements that he sees the applicant as helping with Sib 1’s children and being a good uncle.[300] While somewhat hyperbolic given that he has children and a partner, Sib 1’s statement in evidence that “us three brothers is all we have in Australia” nevertheless conveys the strong bond between the brothers. According to the applicant, he talks with Sib 1 every few days and talks with Sib 2 about once a week.[301]

    [298] As to Sib 1, see G3AE, p.364. As to Sib 2, see G3M, p.150 and G3AF, p.367, noting, however, that the last submission in support provided by Sib 2 was in December 2019. He characterises the applicant as  his biggest supporter: G3M, p.150.

    [299] G3M, p.151.

    [300] TB2, p.9.

    [301] TB1, p.5 [47].

23. In 2017, Sib 1 wrote that without the applicant “…my life would be harder. …[The applicant] provides me, my family and …[Sib 2] support. With him here it feels like we have family, that we are together and that I can get through the tough times… It would be too lonely. I don’t have much support because I don’t have a mum, dad or my other brothers and sisters here. I think that it would be very hard on my other little brother …[Sib 2] as well. He is really important to …[Sib 2].”[302]

    [302] G3S, p.243.

24. It is clear that a decision to refuse to grant the applicant a visa will be emotionally distressing for both brothers, especially if (as I consider likely) the applicant’s mental health was to deteriorate in detention. Further, like the children whose interests were considered earlier, the brothers will also be impacted by such a decision in that they will be denied the opportunity afforded by physical proximity to develop further their relationship with the applicant.

25. As for ties to the Australian community, they are not extensive. Apart from relationships addressed elsewhere in these reasons (such as with Sib 1, Sib 2, Nephews A, B and C, and Ms X), on the material before me, the applicant’s ties to the community seem to comprise his ties to Ms H, an Australian citizen (extending, possibly, to Ms H’s family).[303]

    [303] On the material before me, little is said about the relationship the applicant has with Sib 1’s partner. The applicant had connections established through Jesuit Social Services (G3Y, p.275) but they would not appear to be current. I note also that, in 2018, the Treasurer of an organisation called the South Sudanese Australian Youth United Inc indicated a preparedness to support the applicant on release into the community: G3AG, p.369.

26. This is not to downplay the depth of the ties he has with Ms H. They are long lasting, and clearly very strong. She would appear to have provided extensive emotional and other support to the applicant since late 2009. I note that it was Ms H that arranged and paid for the care coordination plan developed by Tom Hall. It was also Ms H that arranged for STARTTS to provide services to the applicant in detention.

27. In oral evidence, Ms H said that the applicant is a big part of her life and she thinks of him as a brother. In a written statement she said she thinks of the applicant as a son with whom she has a “deep emotional connection.”[304] According to Ms H, “…this incarceration and then detention has had a negative impact on my own wellbeing. I literally break down in tears and feel myself disintegrating at the thought of …[the applicant] not being in Australia. Similarly, I experience great loss when I imagine life will be like without him, and the great joy and support he brings to me and others. I am also devastated at the thought that …[Ms X] would not know the kindness, humour and generosity her Ummah brings.”[305]

    [304] TB3, pp.10 and 11.

    [305] TB3, p.11.

28. As with the applicant’s brothers, it is clear that a decision to refuse to grant the applicant a visa will be emotionally distressing for Ms H and will serve to deny her the opportunity afforded by physical proximity to further develop her relationship with the applicant.

29. In considering the applicant’s ties to the Australian community, I note that he has been in Australia for almost half his life. He did, however, start to offend relatively shortly after his arrival and has spent little of his time in Australia making a positive contribution (noting his very limited employment history and the large amount of time spent in prison and detention).

    Impact on Australian business interests[306]

    [306] Direction 90, cl 9.4.2.

30. As to the second subsidiary consideration, in the circumstances, it requires that consideration be given to the impact on Australian business interests of not allowing the applicant to remain in Australia.

31. As I see it, there is nothing to displace the general position found in Direction 90 to the effect than an employment link is given weight only where the relevant decision would significantly compromise the delivery of a major project or delivery of an important service in Australia (which is not the case here).

    Conclusion

32. I find that the links to the Australian community consideration weighs in favour of not exercising the discretion to refuse to grant the applicant a visa.

33. The links the applicant has to the Australian community while deep are not extensive.

34. A decision to refuse to grant the applicant a visa will be emotionally distressing and will deny opportunities brought by physical proximity to further develop relationships. Given, however, that the applicant’s removal from Australia will be neither required nor authorised under the Act, such a decision will not materially change the status quo from the perspective of those with whom the applicant is linked.

35. If the applicant were to be removed to South Sudan, the impact on those with whom the applicant has ties in the Australian community would be more severe. For instance, it would be likely to threaten their capacity to maintain (let alone) develop those ties. As I see it, however, that impact would be a result of the applicant asking to be removed from Australia. As indicated earlier, any nexus between that impact and a decision to refuse to grant the applicant a visa would be relatively remote.

36. Given these matters, I attribute only slight weight to this consideration.

    CONCLUSION AS TO WHETHER TO EXERCISE DISCRETION AND REFUSE GRANT OF VISA

37. In considering whether to refuse to grant the applicant a visa, my conclusions in relation to the various considerations to which I have had regard (including those to which Direction 90 requires that I have regard) do not point in a uniform direction.

38. In particular, in the circumstances of this matter, and ignoring those considerations which I have found not to be relevant or in relation to which I have not made findings:

    (a)Weighing in favour of a decision to refuse to grant a visa are two of the primary considerations, being the considerations concerning protection of the Australian community from criminal or other serious conduct and expectations of the Australian community (with the weight attributed to each such consideration being significant).

    (b)Weighing against a decision to refuse to grant the applicant a visa are the primary consideration as to the best interests of minor children in Australia (to a slight extent), and the other considerations concerning non-refoulement obligations (to a significant extent), impediments to be faced by the applicant should he be removed from Australia (to a moderate extent), and the applicant’s links to the Australian community (to a slight extent).

39. As I see it, the general position under Direction 90 which has the primary considerations being given greater weight than the other considerations, is not displaced in the circumstances of this proceeding. Here, we have two of the three relevant primary considerations weighing in favour of a decision to refuse to grant the applicant a visa, each to a significant extent.

40. In these circumstances, I believe a decision to exercise the discretion under s 501(1) of the Act to refuse to grant the applicant a visa to be the correct or preferable one.

    DECISION 

41. As I stated at the beginning of these reasons, in this proceeding, the task for the Tribunal is to decide whether it is satisfied that the applicant passes the relevant character test and, if not so satisfied, whether it should refuse to grant the visa for which he applied.

42. I am not satisfied that the applicant passes the character test.

43. Further, the grant of the visa for which the applicant applied should be refused.

44. Accordingly, I affirm the decision under review. 

I certify that the preceding 308 (three hundred and eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member C. J. Furnell

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

Associate

Dated: 11 August 2022

Dates of hearing:	25, 26 and 27 July 2022
Counsel for the Applicant:	John Moore
Solicitors for the Applicant:	Legal Aid New South Wales
Advocate for the Respondent:	Laura Butler
Solicitors for the Respondent:	Australian Government Solicitor