BNHC and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 4883
•5 December 2023
BNHC and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4883 (5 December 2023)
Division: GENERAL DIVISION
File Number: 2023/6860
Re: BNHC
APPLICANT
And Minister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal: Member R. West
Date: 5 December 2023
Place: Melbourne
The decision under review is set aside and in substitution the Tribunal decides that the statutory discretion under s 501CA(4) of the Migration Act 1958 (Cth) is to be exercised to revoke the cancellation of the Applicant’s Class XV Subclass 202 Global Special Humanitarian visa.
Catchwords
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record and does not pass the character test – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – protection of the Australian community from criminal or other serious conduct – strength, nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community – other considerations – legal consequences of the decision – extent of impediments if removed – decision set aside.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Crimes Act 1958 (Vic)
Migration Act 1958 (Cth)
Migration Amendment (Aggregate Sentences) Act 2023 (Cth)
Cases
CGX20 v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs (No 2) [2020] FCA 1842
CKL21 v Minister for Home Affairs [2022] FCAFC 70
DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCA 1158
DOB18 v Minister for Home Affairs [2019] FCAFC 63;
Erradi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] AATA 703
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
NHBK and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 364
Pearson v Minister for Home Affairs [2022] FCAFC 203
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tapiki v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 167
Secondary Materials
Direction No. 99 – Migration Act 1958 – Direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Member R. West 5 December 2023
1.This matter concerns an application for review of the decision of a delegate of the Respondent not to revoke the cancellation of the Applicant’s Class XV Subclass 202 Global Special Humanitarian visa (Visa) under s 501CA(4) of the Migration Act 1958 (Cth) (Act).
BACKGROUND
2.The Applicant was born in what is now the Republic of South Sudan in November 1999.
3.He was granted a Class XV Subclass 202 Global Special Humanitarian visa off-shore on 20 September 2006.
4.He first arrived in Australia on 5 December 2006 at the age of seven.
5.In August 2019 he was convicted in the County Court of reckless cause serious injury and reckless conduct endanger life and sentenced to an aggregate 5 years imprisonment.
6.On 1 May 2020 the Applicant’s Visa was cancelled under s 501(3A) of the Act (Cancellation Decision) and the Applicant was notified of the cancellation and invited to make representations about revocation.1
1 G4 188.
7.On 13 May 2020 the Applicant sought revocation of the cancellation of the Visa and made representations to the Respondent as to why the cancellation of the Visa should be revoked.2
8.On 12 September 2023 a delegate of the Respondent decided not to revoke the cancellation of the Applicant’s Visa (Reviewable Decision).3
9.The Applicant was notified of the Reviewable Decision on 12 September 2023.4
10.On 19 September 2023 the Applicant applied to the Tribunal for review of the Reviewable Decision (Application).5
HEARING
11.The Tribunal conducted a hearing of the Application on 27 and 28 November 2023. The Applicant was represented by Mr Nikolas Barron of counsel. The Respondent was represented by Ms Catherine Oppel, a solicitor with the Australian Government Solicitor.
12.In conducting the review, the Tribunal had regard to:
(a)the documents produced to the Tribunal by the Respondent pursuant to s 501G of the Act, sequentially numbered G1 to G5 and paginated from pages 1 to 406 (G Documents):
(b)documents included in the Respondent’s tender bundle including those produced under summons and lodged by the Respondent sequentially numbered RB1 to RB13 and paginated from pages 1 to 233 (RB Documents);
(c)a bundle of further documents produced under summons and lodged by the Respondent and marked as Exhibit R1;
2 G4 53-56.
3 G2 7.
4 G2 and G3 7-27.
5 G1 1-6.
(d)witness statements tendered by the Applicant and marked as exhibits as listed in Appendix A; and
(e)the oral evidence of:
the Applicant;
(ii)DA, the Applicant’s brother;
(iii)YA, the Applicant’s aunt; and
(iv)ECN, a justice co-ordinator with YSAS.
LEGISLATIVE FRAMEWORK
13.Section 501CA(4) of the Act enables the Tribunal on review to revoke the mandatory visa cancellation decision if it is satisfied that:
(a)the Applicant passes the character test (as defined by section 501); or
(b)there is another reason why the cancellation should be revoked.
14.Section 501(6)(a) provides that a person is deemed not to pass the character test if they have a substantial criminal record.
15.Section 501(7) relevantly provides that for the purpose of the character test, a person has a substantial criminal record if:
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;
16.Section 5AB of the Act provides:
The provisions of this Act and the regulations apply no differently in relation to a single sentence imposed by a court in respect of 2 or more offences to the way in which those provisions apply in relation to a sentence imposed by a court in respect of a single offence.
Applicant’s Criminal Record
17.A complete statement of the Applicant’s criminal record is set out in a National Criminal History Check produced by the Australian Criminal Intelligence Commission.6 It records that:
a. In August 2017, the Applicant was found guilty without conviction of theft of motor vehicle, armed robbery (4 Charges) and fail to answer bail and released on a Youth Supervision Order for a period of 18 months.
b. In August 2019, the Applicant was convicted of reckless cause serious injury and reckless conduct endanger life and sentenced to an aggregate 5 years imprisonment and disqualified from obtaining any drivers licence for 5 years.
18.On the basis of the aggregate sentence of 5 years imprisonment imposed in August 2019, the Tribunal is satisfied that the Applicant has a substantial criminal record as defined in s 501(7) and that by virtue of s 501(6)(a), the Applicant is deemed not to pass the character test.
19.The Applicant concedes that he does not pass the character test.7
20.Accordingly, the sole issue before the Tribunal is whether, under s 501CA(4)(b)(ii), there is
another reason why the mandatory cancellation of the Applicant’s Visa should be revoked.
21.On 23 January 2023, the Minister issued Direction No. 99 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 99) to commence operation from 3 March 2023. Direction 99 provides guidance for decision-makers in determining, relevantly, whether there is another reason why the cancellation of the Applicant’s Visa should be revoked.
22.Section 499 of the Act authorises the Minister to give written directions to a person or body having functions or powers under that Act, provided that the directions are about the
6 G4 31-32.
7 ASFIC at [10].
performance of those functions or the exercise of those powers. Section 499(2A) of the Act mandates that the Tribunal must comply with the direction.8
DIRECTION 99
23.Paragraph 6 of Part 2 of Direction 99 provides that decision-makers must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
24.Paragraph 8 of Part 2 sets out five primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia
(4) the best interests of minor children in Australia; and
(5) expectations of the Australian community.
25.Paragraph 9(1) of Part 2 sets out other considerations. These include, but are not limited to:
(a) legal consequences of the decision;
(b) extent of impediments if removed;
(c) impact on victims;
(d) impact on Australian business interests.
26.Paragraph 6 stipulates that the decision-maker must be informed by the principles stated in paragraph 5.2 in assessing these considerations.
8 See Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583, [17].
EVIDENCE
Sentencing Remarks
27.The Tribunal has had regard to the transcript of the proceedings in the County Court of Victoria and the sentencing remarks of Justice Brimer in sentencing the Applicant in August 2019.9
Applicant’s Evidence
28.The Applicant relied on a statutory declaration declared in February 202310 provided to the Respondent in support of his application for revocation11 and gave oral evidence at the hearing.
29.In his statutory declaration the Applicant said:
a.He was born in South Sudan in November 1999 and is a Catholic. His first language is Dinka.
b.He lived in South Sudan until he was four years old and then his family moved to Kenya. He lived in Kenya until he came to Australia as a seven-year old.
c.In 2003, during conflict in a Kenyan refugee camp, he and his siblings were separated from their parents and they came under the permanent care of their maternal grandmother, Mrs. J. He travelled to Australia with his two siblings (DA and AJ) and Mrs. J on a Global Special Humanitarian visa in 2006.
d.When he arrived in Australia, he experienced language difficulties and had many problems adjusting. He attended several primary schools as the family moved houses several times. He completed the first two years of high school and dropped out part way through year 9. He then completed years 10 and 11 at TAFE. After leaving school at 16 he worked in a number of labouring positions ‘in order to pay
9 G5 33-62.
10 G4 260-266.
11 The Applicant withdrew an undated statement lodged with the Tribunal on 23 November 2023.
the bills and send money to my family in Kenya’. He later commenced an apprenticeship as a roof tiler.
e.In 2016, his grandmother returned to South Sudan for the purposes of a holiday and passed away, leaving him and his younger sister AJ in the care of his paternal uncle. Due to issues arising within his relationship with his uncle, he moved in with his older brother D in rented accommodation.
f.In Australia he has two siblings D and AJ, who are Australian permanent residents, an uncle and eight cousins (aged 21, 15, 14, 13, 11, 10, 8, and 3). All of his friends are in Australia. He has a good relationship with a support worker, ECN, who will help him upon his release.
g.He said he has a good record of employment and his former employer indicated that they would employ him upon his release.
h.He said he had tried to apply for Australian citizenship but was advised that he and his siblings could not receive Australian citizenship without their parents.
i.He said his offending in 2017 occurred during a difficult time when he had a disagreement with his brother and left his house for 3 months. He said that he complied with the terms of the Youth Supervision Order imposed by the Court and attended 30 out of 37 scheduled appointments with ECN under the terms of the Order. He expressed his remorse stating:
I do not have any explanation, nor any excuses for my behaviour, I did not have enough money and I did wrong things. I am very remorseful and ashamed of what I have done.
j.He said his offending in 2018 was committed when he was 18 years old. He said he was in a celebratory mood because it was his brother's birthday and he had not consumed alcohol for an extended period previously due to his commitment to his job. He said that at the time of the offences he had been working 8 hours per day over the past 10 months. He said that at the time of the incident he was confused, scared, and likely concussed after he and his friends and had been earlier assaulted.
k.He expressed his remorse in the following terms:
I accept responsibility for my offences and admit that the offences that I committed are serious, and I plead guilty to the offences during my court hearing. I am deeply remorseful about the offences I committed. My behaviour was wrong, and I feel bad for the victims.
l.Having spent a long time in prison he has had time to look at his life and see what is really important. He has missed his family. His experiences in prison have led him to the realization that there are different ways to go about life and that he is capable of following a different path. He said he now wants to live his life with his family.
m.He said he had a drinking problem and his offending only occurred in the context of drug or alcohol abuse. He said he has addressed this while in prison. In 2019, he completed the "Alcohol and Me Program", a 5-hour psycho-educational program that seeks to enhance participants' awareness of alcohol and its effects, to motivate change and provide coping strategies to mitigate against future high-risk situations. He said he found the program to be very informative and helpful.
n.He said he felt a lot of remorse for what happened and he will not do it again. He said he feels very sorry for the victims and has had a lot of time to think about what happened on that night and how other people's lives were affected because of his behaviour. He wrote a letter of apology to one of the victims who suffered the most and posted the letter to his friend, on 27 May 2021 so that he could hand it to the victim.
o.If he is given an opportunity to remain in Australia, he will support his sister, who is only 18 years old and will provide financial support to his parents in Kenya, who have relied on his brother for financial support up to now.
p.He has good relationship with his cousins and believe that they will be negatively affected if he is deported to South Sudan as they will not be able to maintain their relationship as they can in Australia.
q.He said it is not safe for him to return to South Sudan as he is a member of particularly vulnerable social groups, namely: young men at risk of forcible recruitment by armed groups; persons perceived as wealthy or foreign and returnees who have not lived in South Sudan since early childhood. He has no family or tribal connections in South Sudan.
r.He said there are numerous impediments that he would face if he was removed/deported from Australia to South Sudan. He will face poverty and hardship and be isolated from his family and will have limited prospects and no social connections. He left Sudan when he was only 4 years old and has no memory of what it is like living there. He does not have any family, nor friends, nor social network there. He described the prospect as:
I do not know how I will survive in South Sudan and doubt that I will be able to find a job and accommodation there. I know nobody there and I cannot speak any of the language. I also have little knowledge of cultural practices.
I do not understand the political situation or the conflict in South Sudan, which I fear would make it easier for me to get caught up in bad situations in the conflict, vulnerable to ethnic violence and violence in the war. I know that the situation there is getting worse and worse, and people are killed due to ethnic tensions and for no reason. If I am alone, an outsider, with no idea what is going on due to growing up outside of the country, I fear that this is what will happen to me.
I do not know where I would go, how I would live, how I could find work or how I could survive in South Sudan. I fear I will be homeless, unable to support myself or even find food.
s.He said he has now lived in Australia for 17 years and considers Australia to be his home. It is where his close family, including his older brother and younger sister, live.
30.In his oral evidence the Applicant affirmed the statutory declaration and stated that:
(a)When he first arrived in Australia, he, his brother, his sister and his grandmother lived with his uncle and their family and he was cared for by his grandmother and YA who was like a second mother to him.
(b)Later he, his brother, his sister and grandmother moved into separate accommodation.
(c)When his grandmother died in 2016 it was very hard for him and he started drinking and using drugs.
(d)He said his offending in 2017 occurred when he moved out of his brother’s home and went to Dandenong to find work and live by himself. He began associating with some friends in the area and was drinking alcohol. He had no money and didn’t know what to do. He said he thought he could make a new start from the money he stole in the robberies. He said he now knows this was not the right path to take and he was very ashamed of what he had done. He said he didn’t plan to hurt anyone. He just wanted money.
(e)In cross examination, he confirmed that he moved out of his brother’s house because he did not like being told what to do by his brother. His brother said he wasn’t focused and they argued about him smoking cigarettes, having friends around and going out a lot. He said that after he left his brother’s house, he went to a motel, but soon ran out of money.
(f)He said that ECN was very helpful to him and she picked him up from work so that he could get to sessions with YSAS.
(g)He said that once the 2017 offending was resolved, he complied with the Supervision Order and moved back with his brother and obtained employment in a factory working 5 days per week. He said he had a girlfriend and only drank on special occasions and didn’t go out very much. He was saving money to buy a house.
(h)He said in relation to his offending in 2018 that he had been drinking and couldn’t remember how the trouble started or how he came to be driving the car. He said he was ashamed of what he had done.
(i)He described life in prison as tough. He said everyone was on edge. He tried to do a course on controlling violence while in prison but he was only able to do about one quarter of it because he was moved to another prison.
(j)He explained that the people he was involved with in the 2017 offences were people he knew in Dandenong. He described them as acquaintances and said he only lived in that area for 2 months. He said his friends from school were a different group who mainly lived around Cranbourne. He was with some of the Cranbourne friends at the time of the 2018 offending.
(k)He confirmed that during the 2018 offending he threw a chair into the crowd in response to someone hitting him. He said he could not remember much of what happened and the next day he could not believe what he had done.
(l)In cross examination, he confirmed his involvement in several reported incidents while in prison on 18 May 2019, 27 May 2019, 24 July 2019, 10 November 2019, 4
July 2020, 21 July 2020 and 28 November 2020,12 and acknowledged that he was convicted of affray in relation to the incident on 28 November 202013 and was punished by periods of solitary confinement in relation to his involvement in incidents on 4 July 2020 and 21 July 2020. He asserted that he had to act in his own self- defence. He had to fight back or otherwise he would be seen as weak and victimised. He confirmed that he had armed himself with a shiv following an incident in which he was attacked and his face cut.
(m)He was also taken to incidents that had occurred since entering immigration detention on 6 April 2023. He said he recalled an incident on 27 April 2023 in which a detainee wielded a fire hose to damage property, spraying the officers' station, the common room and security cameras and acknowledged that multiple detainees, including himself, were named as being involved in the incident. He denied being involved, stating that he only filmed the events on his mobile phone. He confirmed that he had been in possession of a shiv as alleged on 4 May 202314 and explained that he had become paranoid while in prison and carried a shiv for protection. He
12 Exhibit R1.
13 The Applicant was convicted of Affray in July 2023, and sentenced to one month imprisonment. On appeal, the County Court commuted the sentence to 3 days imprisonment, already served – RB 1 at p.12.
14 RB 174-176.
insisted he would not do so if released. He was asked about an incident reported on 17 May 2023, in which a detainee had alleged that the Applicant and two other detainees struck him in the face and threatened him with an improvised weapon.15 The Applicant said he wasn’t sure what this referred to and offered the explanation that perhaps the detainee had made the accusations so that he could be transferred to another unit.
(n)He said he had not told detention staff of his feelings of anxiety, lost sleep and panic attacks16 and was not aware of counselling being available in detention, although he did recall being offered one-on-one counselling but it was not followed up.
(o)He said that if released he would live with his brother and insisted that they had resolved the conflict that had caused him to leave in 2017. He said he had several job opportunities lined up through his brother and his housemate and he might go back to TAFE.
(p)He said that he would avoid violence by not going out like he used to and that he would just play Playstation and do streaming after work. He said he is now an adult and most of his friends now have children and are employed so he will socialise differently and won’t be going to pubs and clubs as he did in the past. He said if confronted or challenged he would walk away. He said it was different in prison as this option was not available to him. When pressed he conceded that if someone really wanted to hurt him he would fight back but otherwise he would just walk away.
Witnesses
DA
31.DA, the Applicant’s older brother provided a written statement dated 22 November 202317
and gave oral evidence at the hearing.
32.In his written statement DA stated:
15 RB 180.
16 RB 230.
17 Exhibit A1.
a.If the Applicant is released from detention he would be happy to have him live with him at his house. He described the house as a rental property where he has lived for 13 years. It is a three-bedroom house in a nice quiet area close to the train station and to nearby shops. His friend NW is also staying with him.
b.He is currently employed working two jobs. He works in construction 4-5 days a week. On weekends, he works as a security guard and sometimes picks up shifts during the week.
c.He said he cares about the Applicant deeply and wants to help him get back into employment and into the community.
33.In his oral evidence DA affirmed the content of his written statement and stated:
a.After the Applicant’s offending in 2017 he was shocked and invited the Applicant to move back in with him. He said their relationship was then smoother and they started to understand each other. He said the 2018 offending was a big shock to the family as there was no lead up to it. It just happened overnight.
b.He has supported his parents in the refugee camp in Kenya and in 2018 when the Applicant was living with him and working they were able to send enough money for his parents to move to Nairobi, but when the Applicant went to prison he was unable to maintain the level of support and they returned to the refugee camp.
c.He confirmed that he had keep contact with the Applicant while in prison and assisted him financially, although contact was curtailed by the COVID-19 restrictions. He said he now has a good relationship with the Applicant. He said the Applicant will develop a focus if he has a job and he would introduce him to boxing training to develop his discipline.
YA
34.YA, the wife of AA, the Applicant’s uncle, provided a written statement dated 22 November 202318 and gave oral evidence at the hearing.
35.YA stated in her written statement:
a.She has been married to AA for 25 years and they have eight children: D (24), A (18), AJ (16), Y (14), DI (13), AK (11), AD (8) and M (4).
b.She has known the Applicant since he was born.
c.She came to Australia in 2004 and currently works in disability home care, which she has been doing for about 4 years. She speaks to the Applicant regularly. The Applicant is very close to his cousins. Whenever he calls, he speaks to all of them.
d.Before the Applicant went to prison, he was always extremely helpful. He babysat the children all the time when YA would have to work or when the Applicant’s uncle would have to work. He would make breakfast for the children, clean up and vacuum the house. He was a very good boy.
e.She knows that the Applicant went to prison for violent offending, but if he could return to the community, she would have no problem welcoming him back into their lives and having him spend time with his cousins. He has always been good to them. She said she trusts him and believes he is a good person.
36.In her oral evidence YA affirmed the content of her written statement and clarified that she was not aware of the exact circumstances of the Applicant’s offending. She confirmed that she has maintained contact with the Applicant by phone while he has been in prison.
18 Exhibit A2.
ECN
37.ECN, a justice co-ordinator at the Bunjilwarra Koori Healing Centre in Hastings, Victoria, provided a statutory declaration dated 22 November 202319 and gave oral evidence at the hearing.
38.In her statutory declaration she stated:
a.She is employed by the Youth Support + Advocacy Service (YSAS), a government funded youth health and social services provider specialising in the area of alcohol, drugs, mental health and crime prevention programs.
b.She first met the Applicant on 5 July 2017 when she was working in the ‘Transformer Program’ in Dandenong and provided him with intensive casework and outreach support until his incarceration in 2019. She said she also visited the Applicant in custody several times, and he has since contacted her periodically by telephone.
c.She said she has provided support to the Applicant’s sister and met members of his family, and has professional knowledge of his family circumstances and his refugee background.
d.She said the Applicant self-referred to her and was a respectful and compliant client who worked constructively with her to establish stability and direction in his life. He attended weekly appointments and maintained communication at other times via phone and text messages. During the period she worked with him he significantly reduced his use of cannabis, obtained and maintained full time employment, reported improved family relationships and achieved improved mental and physical health outcomes. He had also largely ceased association with negative peers.
e.She confirmed that the Applicant remains eligible for YSAS services and that he is welcome to connect with any of their metropolitan and regional locations across Victoria. She said that YSAS services are designed specifically to meet the needs of young people and YSAS provides services including: youth outreach directed at
19 Exhibit A3.
reducing drug and alcohol use, day programs for pro-social activities, primary health outreach, residential withdrawal and youth residential rehabilitation, mental health support and referral, trauma counselling in collaboration with specialist counselling services and employment, education and training support.
39.In her oral evidence ECN confirmed that
a.She has maintained contact with the Applicant since he entered prison and he had called her occasionally. She also confirmed that she knew the Applicant’s family through her professional association with the Applicant’s sister.
b.She had recently spoken to the Regional Manager and the Chef Executive Officer of YSAS, and they had assured her that the Applicant remained eligible to access YSAS service if he is released.
c.She had not recommended the Applicant for psychological counselling when she was his case worker as nothing stood out to her as being concerning. She said he is now aware of the value of getting professional help before problems arise.
d.She said that she did not think the Applicant had a particular problem with alcohol. She said he did drink but at a low level, and on the night of the incident in 2018 he drank too much when celebrating his brother’s birthday.
PRIMARY CONSIDERATIONS – PARAGRAPH 8 OF PART 2
Protection of the Australian Community
40.In considering the protection of the Australian community, the Tribunal has had regard to the matters set out in paras 8.1(1) and (2) of Part 2 of Direction 99.
41.Paragraph 8.1(2) requires decision-makers to give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Nature and Seriousness of the Applicant’s Conduct to Date
42.The alleged factual circumstances giving rise to the proceedings in August 2017 in which the Applicant was convicted of theft of motor vehicle, armed robbery (4 Charges) and fail to answer bail and released on a Youth Supervision Order20 for 18 months, were set out in a Preliminary Brief – Statement Made by Informant.21 In summary the Informant alleged that:
At approximately 11.05 pm on 20 April 2017 the Applicant with 4 co-offenders attended a service station in a stolen motor vehicle. One offender stayed in the car while the other four, including the Applicant, entered the service station store. One of the offenders produced a metal bar. The attendants locked themselves in the staffroom and called the police. The offenders damaged the glass window in a security door and stole $200 in cash and approximately $3,000 worth of cigarettes. They also threatened two customers and stole a mobile phone from them.
Later that evening the five offenders attended a McDonalds restaurant and threatened staff and stole $1,700 from tills and the manager’s office as well as a staff member’s handbag containing her keys, mobile phone and eftpos card. Later that night the offenders entered a second McDonalds restaurant and stole $3,999 from tills and the manager’s office as well as a staff member’s mobile phone.
43.The Applicant plead guilty to the offences as charged and did not dispute the factual basis set out in the Brief in giving his oral evidence. The Tribunal accepts the account of the Applicant’s offending stated in the Brief as summarised above.
44.The factual circumstances giving rise to the Applicant’s conviction in August 2019 for reckless cause serious injury and reckless conduct endanger life are set out in the sentencing remarks of Justice Brimer22 as follows:
20 RB 85.
21 RB 85-86.
22 G4 34-36, [3]-[12].
Between 1 and 2 September 2018, you were living with your brother and another friend in, ..[suburb A]... On 1 September 2018 you were at home with your brother and housemate, drinking alcohol and celebrating your brother's birthday. In the evening more friends joined the group to continue celebrating your brother's birthday. The group decided to go to an event with live rap music at the … Hotel.
At approximately 9:30 PM you left your home in a Nissan Pulsar sedan (the car). There were a number of people in the car which was being driven by another man. On the trip from …[suburb A]… to… [suburb B]… you drank more alcohol. At about 10:20 PM the car was parked in M… Street …[suburb B]… and you and the others got out and walked towards the … Hotel. You went inside and continued to drink alcohol.
At about 2:22 AM on 2 September 2018 a fight broke out in the bar area. You picked up a chair, raised it above your head and threw the chair into the crowd. It hit [Victim MG]... in the back of the head. This forms the basis of charge 5, causing injury recklessly. Shortly after the fight you got the single key to the car and left the club. Out in S… Street, a further fight broke out, with you and another male hitting each other. You went to the ground and appeared to be unconscious for a little time and a number of others continued to assault you while you were on the ground. After a short time you got up and went to where the car was parked. You unlocked the driver side door with the key and started the car. Another person (Mr V…) was in the back of the car at this time.
You drove the car east on M… Street, did a U-turn at speed towards S… Street and went through a large group of young people who were on the street. You were driving on the wrong side of M… Street and performed a second U-turn from the right lane into S… Street around a street sweeper and into the oncoming traffic lane at M… Street. You then proceeded at speed east along M… Street over to E…. Street narrowly missing a further group of young people still in the street.
You then did a U-turn for the third and last time after crossing E… Street returning west along M… Street. You were driving at speed, accelerating towards a number of young people with some force. The group had to take evasive action by jumping out of the way of the car. The car went onto the left side of the road and at about
2:44 AM, collided at speed with the rear right hand side of a parked red Mazda sedan, and then into a gold Mitsubishi sedan pushing the Mitsubishi out of its parking spot. The Mitsubishi subsequently collided with a silver Volkswagen which was angle parked in the area. This is the basis of charge 2, reckless conduct endangering life.
Whilst you were driving, 18 year old ...[Victim D]... and ...[Victim AN]... moved off the road and were in between the rear of the gold Mitsubishi and the Volkswagen to avoid being hit by the car driven by you. [Victim D].. was crushed in between the two parked cars which instantly shattered his right tibia and fibula. This is the basis of charge 1, causing serious injury recklessly.
[Victim AN].. was knocked to the ground in the incident (charge 4 recklessly cause injury). He witnessed the injuries to ..[Victim D].. and recalls seeing a bone poking out of ..[Victim D’s].. right leg. [Victim D]..was bleeding heavily. [Victim NA].., with the help of police, wrapped his belt around ..[Victim D’s].. leg in an effort to stop the bleeding. [Victim NA].. also took his shirt off and held it to ..[Victim D’s].. face as he had a big cut on the left side of his face.
[Victim M].. was waiting for a taxi when he was hit by the car. He tried to jump out of the way of the car before being hit and knocked to the ground (Charge 3, cause injury recklessly). He recalls being on the ground for 20 minutes and not being able to walk. [Victim M].. also witnessed the injuries to his friend ..[Victim D]..
The force of the impact between the two cars made the Volkswagen go up onto the footpath into a solid brick wall which resulted in bricks being pushed in and cracks emerging. The car being driven by you spun around and came to rest facing east in the middle of M…Street with the airbags deployed in the front of the car. You were surrounded by people trying to get to you inside the car but the driver's side door could not be opened. You and the other person in the car got out of the car by the passenger side doors and left23.
23 Redactions made in accordance with the Order under s.35(3) of the AAT Act made by Member Bygrave dated 9 October 2023
45.Paragraph 8.1.1(1) of Part 2 of Direction 99 provides a description of what is considered very serious and serious conduct. Paragraphs 8.1.1(1)(a)(i)-(ii) lists certain crimes of violence which are to be regarded as very serious. Paragraph 8.1.1(1)(b) gives examples of crimes which are to be regarded as serious.
46.The Applicant’s offending for which he was convicted in August 2017 and August 2019 both involved violence. His offending in 2017 involved at least apprehended violence and the latter offending resulted in significant actual physical harm to the victims.24 Justice Brimer, in sentencing the Applicant in August 2019, commented on the seriousness of the offending as follows:
In pleading guilty to recklessly causing serious injury, you accept that you foresaw the probable consequences of your actions and were indifferent as to whether or not those consequences occurred. In respect of the charge of recklessly endangering life, you accept that you foresaw that placing another person in danger of death was a probable consequence of your conduct. These are extremely serious offences, which was accepted by your counsel at the outset. This is reflected in the maximum penalties for these offences.25
47.The descriptions given in paras 8.1.1(1)(a) and (b) are not exhaustive and paras 8.1.1(1)(c)- (h), set out a range of factors decision-makers must consider in assessing the nature and seriousness of the criminal offending or other conduct to date. This includes, for relevant purposes in this case:
(a)the sentences imposed by the court;
(b)the frequency of the Applicant’s offending; and
(c)the cumulative effect of any repeated offending.
24 G4 38, [16]-[22].
25 G4 40, [32].
48.In August 2019 the Applicant was sentenced to an aggregate term of imprisonment of 5 years with a non-parole period of 3 years,26 this is a substantial sentence reflecting the seriousness of the offending.
49.The Tribunal has recognised that:
Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offences involved.27
50.It is also relevant that the Applicant’s offending for which he was convicted in August 2019 occurred in September 2018, less than twelve months after he was released on a Youth Supervision Order in August 2017.
51.Having regard to these considerations, the Tribunal finds that the nature of the Applicant’s criminal conduct to date has involved very serious offences including violence, which has threatened the financial, physical and psychological wellbeing of members of the Australian community.
The risk to the Australian community should the Applicant commit further offences or engage in other serious misconduct
52.In assessing whether the Applicant represents an unacceptable risk of harm to the Australian community, the decision-maker must have regard, cumulatively, to:
(a)the nature of the harm to individuals or the Australian community should the non- citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non- citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the applicant reoffending.
26 G4 51, [64].
27 PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22].
Nature of the Harm
53.The Applicant participated in multiple armed robberies in 2017, each involving the intimidation of innocent third parties, and he inflicted actual physical injuries on multiple third parties in 2018. If that conduct is repeated there is a real prospect that it could cause very serious physical, emotional and financial harm to individuals and to the Australian community.
Likelihood of Reoffending
54.In assessing the risk of reoffending, the Tribunal is mindful of the comments of the Full Court in CKL21 v Minister for Home Affairs28 that:
…while the future is not predictable, it is possible to assess the degree of likelihood of an event occurring in the future based on past and current circumstances. On occasions, the task of predicting future events in curial or administrative decision- making has been described as involving speculation. That is an unfortunate description, as the word speculation is typically used as a synonym for conjecture, which is the formation of an opinion without sufficient evidence for proof. In curial and administrative decision-making, the task of assessing the degree of likelihood of an event occurring in the future requires more than mere speculation. It must be based on a logical process of reasoning based on the known facts. A conclusion that a risk “cannot be ruled out” does not, of itself, logically establish the existence of a risk. Further … a risk may be so low that it must properly be disregarded. In assessing the likelihood of a future event, the key facts will include the regularity with which the event has occurred in the past, the conditions under which the event occurred in the past and the likelihood that those conditions have since changed or other events have intervened to interrupt the cycle of regularity.
Nature of the Offending
55.It is important to put the Applicant’s offending in context.
28 (2022) 293 FCR 634 at [74], citing the High Court’s decision in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 599 at 574-575.
56.He first offended in 2017 as a juvenile. His armed robbery offences were confined to a single night and the related theft of a motor vehicle which occurred two days earlier. The Applicant gave evidence that at the time he had placed himself in a difficult position. He had moved out of his brother’s home because of conflict with his brother over domestic matters. He was dealing with the death of his grandmother who had cared for him and his siblings throughout his life. He had been drawn into drug and alcohol use, he was homeless and in a desperate financial position. He said he had no money to buy food. He acknowledged that his offending was premeditated and motivated by the need to get money.
57.Much of his account was corroborated by the evidence of his brother DA, who was a credible witness. DA explained that at the time, both he and the Applicant found it hard to deal with their emotions and the loss of their grandmother.
58.In the period after the Applicant’s court appearance in 2017, the Applicant said he returned to his brother’s house and he and DA reached an understanding about their domestic arrangements. The Applicant obtained employment and made a self-referral to YSAS, participating in their program and otherwise complying with the terms of the Youth Supervision Order. This evidence was broadly confirmed by ECN and by DA.
59.The offending in 2018, when the Applicant was 18 years of age, was unrelated to the offending in 2017. The Applicant distinguished it in his evidence, stating that while his offending in 2017 was planned, what happened in 2018 was unplanned and unexpected. The Applicant stated in his evidence that he was unable to explain what motivated him to do what he did on that occasion because he had little recollection and couldn’t remember what he was thinking. The Court noted that he had been drinking heavily on the night and that he was likely rendered unconscious at one stage during a fight outside the club.
60.Ms Cidoni opined:
His state of intoxication and likely concussion, clouded his judgment, and created agitation that led to him making a foolish decision to drive. He crashed the vehicle almost immediately and he unintentionally caused serious injuries to two victims. He was remorseful for this.29
29 RB 222.
61.Notwithstanding the Applicant’s intoxication and possible concussion, the Tribunal accepts that by pleading guilty to the offences for which he was convicted the Applicant is to be taken to have formed the necessary mens rea of the offences. However, this does not mean, as suggested by the Respondent, that the Applicant must be taken to have lied when he said he could not remember aspects of what happened and what he was feeling and thinking at the time of the offences.
Psychological Assessment
62.In October 2018 the Applicant was assessed by Ms Gina Cidoni, a clinical psychologist at the request of the Applicant’s solicitor for the purpose of his criminal trial in August 2019. In her undated report30 Ms Cidoni opined that:
a.the Applicant presents with borderline intelligence and his auditory memory index including his delayed recall was in the borderline range;
b.personality testing reflected no major mental health disturbance but there were indications of situational stress, emerging anti-social traits, low mood and mild anxiety;
c.Drug abuse/dependency was also endorsed, but his major problem is alcohol consumption where he understands he must abstain; and
d.upon release substance abuse counselling and education should be mandated.
63.In December 2018 the Applicant undertook a neuropsychological assessment by Ms Laura Scott, a clinical neuropsychologist who was engaged by the Applicant’s solicitor for the purpose of his criminal trial in August 2019. In her report of 21 December 201831 Ms Scott opined:
a.[The Applicant] presents with prominent difficulties in information processing speed, higher attentional skills, memory and aspects of executive function. This is seen
30 RB 218-222.
31 RB 201-217.
against a backdrop of relatively intact basic attention, working memory, language skills, visuospatial skills and intellectual function.
b.Behavioural observations revealed signs of poor self-monitoring and difficulties with response inhibition (including perseverative tendencies). Difficulties with sustaining attention were also prominent on interview and assessment.
c.[the Applicant’s] pattern of performance is consistent with a Traumatic Brain Injury (TBI) of at least mild severity (resulting from blows he received in the fight and from the deployment of an airbag in the collision).
d.His level of function may improve if he is referred to appropriate brain injury support services for psychoeducation, case management and allied health intervention. Referral for neurological review is recommended and a brain MRI may also assist to gain a deeper understanding of the severity of the injury.
64.On the basis of these reports, the Tribunal accepts that the Applicant:
a.suffered a traumatic brain injury of at least mild severity in 2018 and his level of functioning may have been improved by the application of appropriate brain injury support services. There is no evidence that the Applicant has had the benefit of such services, although the extent of his impairment has not been assessed since December 2018;
b.has borderline intelligence and low cognitive ability;
c.has no major mental health disturbance, although he showed some indications of situational stress, emerging anti-social traits, low mood and mild anxiety; and
d.has drug and alcohol dependency issues and should receive substance abuse counselling and education.
Rehabilitation and Counselling
65.The Respondent asserts that the Applicant lacks insight into the cause of his offending and has not pursued opportunities through counselling to better understand his behaviour.
66.The Applicant’s evidence was that he had reflected on his behaviour over his years in prison. He demonstrated that he is aware that the situation in prison is different to the community and he indicated that he would be better able to avoid violence out of the prison environment. He gave evidence that he understands his violence is a response to threats of violence from others, and in the community he will try to avoid putting himself in situations where violence may occur and if violence is threatened he will walk away. He did however include a caveat that he would respond with violence to actual threats of serious harm if it was necessary.
67.He also gave evidence that he recognises that he needs to avoid alcohol. In 2019, he completed the "Alcohol and Me Program", which he described as a 5-hour psycho- educational program that seeks to enhance participants' awareness of alcohol and its effects, to motivate change and provide coping strategies to mitigate against future high- risk situations. He said he found the program to be very informative and helpful. He has abstained from alcohol now for over five years while in prison and detention. He said that he does not think he needs further counselling.
68.Ms Cidoni and Ms Scott did not identify any significant underlying mental health issues or a clear need for psychological counselling. The Applicant did not indicate that he was opposed to behavioural counselling in the future and his willingness to engage with ECN and the YSAS program in the past is a positive sign that he may do so if released.
69.The Tribunal is satisfied that the Applicant’s offending has been largely the result of situational factors rather than psychological issues and the Applicant’s understanding of those situational factors is a positive indication that the risk of him re-offending will be mitigated. Against this, the Respondent makes the valid point that there can be no guarantee the Applicant can avoid situations where violence may arise and the fact that he has not ruled out resorting to violence to defend himself when he perceives a threat of significant harm means there is a risk he will be drawn into re-offending.
Protective Factors
70.The Applicant has support available to him to establish himself in the community. In particular, he has the support of his older brother DA. DA indicated that the Applicant can live with him if released into the community and that he would assist the Applicant to find work. DA was an impressive witness. He said he has lived in the same rented house for thirteen years and has stable employment as a security guard and as a casual employee in the construction industry. He expressed a genuine affection and sense of responsibility for the Applicant. The Tribunal is satisfied that he would provide stability and a positive role model for the Applicant if he is released. The Applicant also has the support of his extended family including his uncle and his uncle’s wife, YA.
71.ECN also gave evidence of the support services available to the Applicant through YSAS and of her personal support for the Applicant to access those services, notwithstanding that she is no longer involved in the program. She stated that she had personally confirmed with YSAS management that the Applicant remains eligible to participate in their programs and utilise their services until he is 26 years old after which he would need to transition to equivalent adult services.
72.The Applicant has good prospects of employment. He has demonstrated in the past that he has been prepared to make a commitment to his employment and his former employer provided a written statement on 8 October 2018 that it was aware that he had been detained in custody, and was prepared to accept his return to employment if released on bail.32 While that commitment does not necessarily extend to the Applicant’s current circumstances, it does indicate that the Applicant was well regarded by his employer at the time. In addition, the Applicant’s brother has indicated that he could assist the Applicant to obtain employment in the construction industry with his current employer. The Applicant also has access to the services of YSAS. It was the opinion of DA and ECN that stable employment would be a very positive factor in enabling the Applicant to avoid further offending.
73.The Applicant has the support of a number of friends in the community who provided letters in support of the Applicant’s application for revocation.33 They were primarily his friends from school and included a colleague from work. The Applicant stated in his oral evidence that he had a group of prosocial peers who were friends from school and from his
32 G5 306.
33 G4 298-316.
involvement in basketball. He said that this was a different group to the persons with whom he was involved at the time of his offending in 2017. He said that he had only known that group for a short time when he was living away from his brother’s house and he has now dissociated himself from them.
74.The Respondent asserts that the Tribunal should be dubious about the positive influence of the Applicant's friends, as the friends who wrote references for the Applicant showed very little understanding of the Applicant's offending, and some of them endorsed his actions of 2 September 2023, with one describing him as a 'hero’. The Respondent also referred to Victoria Police information indicating that the Applicant had links to persons involved in serious crime, including members of APEX youth gangs.34
75.Having read the testimonials, the Tribunal is satisfied they disclose that the Applicant has a group of prosocial friends in the community with whom he is well-regarded. The fact that individuals within that group may not have a proper appreciation of the nature of the Applicant’s offending does not diminish the likelihood that the Applicant would derive some positive support from that group of friends. The Tribunal gives limited weight to the Applicant’s alleged links to the APEX gang. Clearly, the Applicant was involved with other offenders in committing the armed robberies in 2017 and this may be the basis for the concerns expressed by Victoria Police. However, his offending in 2018 was unrelated to those associations and there is no evidence before the Tribunal upon which to assess the reliability of the police information.
Remorse
76.The Applicant has expressed remorse for his offending and the impact on his victims in both his written and oral evidence. He plead guilty to the charges against him in 2017 and 2019 and Justice Brimer noted in her sentencing remarks that the Applicant had made disclosures of his remorse to Ms Cidoni and Ms Scott. She stated:
According to Ms Cidoni, you accept that your behaviour was wrong and you feel bad for the victims. You are aware that it could have been much worse and that people could have died. Ms Scott recorded that despite further prompting, you were unable
34 G4 205.
to articulate your feelings of remorse, although it was apparent from your facial expression, gestures and attempts to explain that you felt sorry for the impact of your actions.35
Deterrence of prison and deportation
77.The Applicant now says his experience of incarceration and the threat of deportation or further detention will deter him from further offending. Having observed the Applicant give his evidence, the Tribunal is satisfied that the Applicant is genuine in making this statement. However, the Applicant’s record while in prison and detention raises issues about his ability to avoid further violent offending.
78.The Applicant was taken in cross examination to several reports of incidents while in prison on 18 May 2019, 27 May 2019, 24 July 2019, 10 November 2019, 4 July 2020, 21 July 2020 and 28 November 2020.36 The Applicant confirmed that he had been convicted of affray in relation to the incident on 28 November 202037 and that he had been punished by periods of solitary confinement in relation to his involvement in incidents on 4 July 2020 and 21 July 2020. He did not deny that the incidents had occurred but asserted that circumstances required him to act in his own self-defence. He described his circumstances in prison as one of vulnerability. He said that as a young inmate he was subject to bullying and intimidation by other inmates and that he had to fight back, otherwise he would be seen as weak and victimised. He confirmed that he had armed himself with a shiv following an incident in which he was attacked and his face cut.
79.He was also taken to incidents that had occurred since entering immigration detention on 6 April 2023:
a.On 27 April 2023 a 'major incident' occurred in which a detainee wielded a fire hose to damage property and spraying the officers' station, the common room and security cameras while multiple detainees, including the Applicant, were named as being involved in assisting, attempting to damage or cover CCTV and to forcefully
35 G4 at p.44.
36 Exhibit R1.
37 The Applicant was convicted of Affray on 3 July 2023, and sentenced to one month imprisonment. On appeal, the County Court commuted the sentence to 3 days imprisonment, already served – RB 1 at p.12.
enter the officer's station.38 The Applicant expressed sympathy for the people involved viewing it as a protest against their conditions but he said he was not involved and only filmed the events on his mobile phone.
b.On 4 May 2023, the Applicant was accused of possession of a makeshift weapon (shiv, knife or razor) which he attempted to pass to another detainee.39 The Applicant did not deny the allegation and explained that he had become paranoid while in prison and carried a shiv for protection but he wouldn’t do so if released.
c.On 17 May 2023, a detainee alleged that the Applicant and two other detainees struck him in the face and threatened him with an improvised weapon.40 The Applicant said he wasn’t sure what this referred to and perhaps the detainee had made the accusations so that he could be transferred to another unit.
80.In giving his evidence, the Applicant claimed that his conduct in prison should be viewed in context and was not reflective of how he would behave in the community. He said his violent behaviour in prison was a response to the threatening environment in which he was placed and that he had no option as he could not remove himself from the situation. He said that in the community he could walk away or even run away to avoid a violent situation. He said he would only respond with violence if the other person was intent on doing him serious harm. The Respondent characterised this as the Applicant having developed a narrative in his own head that it was acceptable to resort to violence as a means of self-defence and that this posed a risk of violent offending if he were released.
81.The Applicant was imprisoned while only 18 years old and a pre-sentencing report noted that he had a diagnosed traumatic brain injury and cognitive impairments likely to have a detrimental impact on his functioning in adult custody, rendering him vulnerable to undesirable influences in adult prison. The assessor concluded that the Applicant met the criteria for detention within a Youth Justice Centre under s.32 (1) of the Sentencing Act 1991, which takes into account age, prospects for rehabilitation, and/or, if a young person
38 RB 164.
39 RB 174-176.
40 RB 180.
is particularly impressionable, immature, or likely to be subject to undesirable influences in prison.41
82.Psychologist Ms Cidoni expressed the view that:
Imprisonment in view of his immaturity would be challenging and could result in a decline in of mental health over time. It may place him on a negative trajectory in terms of further negative exposure in light of his impressionability and reduced coping abilities.42
83.Neuropsychologist Ms Scott also stated:
..ongoing recovery from a recent brain injury leaves him particularly vulnerable to external influence. Although abstract reasoning skills are relatively intact, he has serious difficulties sustaining his concentration. Paying attention to complex information and switching between various perspectives or courses of action is likely to be very effortful for him. This could render him more likely to follow along with the decisions of others rather than making up his own mind about how to respond or behave in a particular situation.43
84.Justice Brimer accepted that the Applicant was particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison, but decided that a term of imprisonment in an adult prison was warranted given the seriousness of the offending.44
85.The Tribunal accepts that the Applicant was vulnerable in prison and that his conduct in that environment is not necessarily reflective of how he would behave in the community.
86.When questioned about what he would do to avoid becoming involved in violence when released, the Applicant identified finding full-time employment to keep himself occupied, abstaining from alcohol, avoiding going to venues such as clubs and pubs and living a quiet family-oriented life. The Respondent criticised this as an unrealistic solution and pointed to
41 G4 at p.296.
42 RB 222.
43 RB 216.
44 G4 49-50, [59]-[60].
the Applicant’s failure to understand his own behaviour and his disinterest in seeking counselling support as matters of concern in relation to future risk.
87.The Tribunal accepts that there is a risk the Applicant may have become conditioned to violence and learned to employ violence in response to perceived threats as a result of his experiences in prison. The fact that he has continued to arm himself with a shiv while in detention, for example, is of concern. The reports of Ms Cidoni and Ms Scott both commented on his impressionability in the prison environment. However, the measures identified by the Applicant for avoiding trouble if he is released are basic but practical and do offer a means to minimise the situational risks of him reoffending. They are steps which can readily be supported by DA and other family members.
Conclusion
88.The Applicant is a young man who has now spent almost all of his adult years in prison or detention. He is of limited cognitive ability and is impressionable. His prior offending has involved violence for which he is genuinely remorseful, but in the anomalous environment of prison and detention he has acted violently. He says he will act differently in the community, but whether or not he has rehabilitated is untested in the community. He lacks insight into the psychological factors which have contributed to his offending, but he does have a clear appreciation of the principal practical steps he needs to take to avoid situations which could lead to him re-offending. He has positive support in the community and the Tribunal is satisfied that he genuinely wishes to live a prosocial life. Having regard to these factors the Tribunal is satisfied that the Applicant poses a moderate risk of re-offending.
89.The Tribunal notes para 8.1.2(1) and the view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases and that some conduct, and the harm that would be caused if it were repeated, is so serious that any risk that it may be repeated may be unacceptable.
90.The Applicant’s offending was very serious and involved violence and the infliction of serious physical and psychological harm on members of the community. There is a moderate risk of him committing similar crimes in the future. The protection of the Australian community is a primary consideration under Direction 99 and weighs in favour of not revoking the cancellation of the Applicant’s Visa and in view of the seriousness of the past
offending and the moderate risk of re-offending, the Tribunal gives this consideration substantial weight.
Family Violence committed by the Applicant
91.Paragraph 8.2(1) of Direction 99 states:
The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.
92.There is no evidence that the Applicant has engaged in family violence and this consideration is not relevant to him.
The Strength, Nature and Duration of Ties to Australia
93.Paragraph 8.3 of Direction 99 requires that decision-makers:
(1)…must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(3)The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4)Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community.
94.The Applicant has no partner or children of his own. The Applicant has an extended family in Australia which includes his older brother, DA, and his younger sister. He also has an uncle, his uncle’s wife and their eight children. The Applicant has a very close relationship with his siblings. He lived initially with his uncle when he arrived in Australia and refers to his uncle’s wife YA as his second mother. YA gave evidence that she had maintained contact with the Applicant while he has been in prison. She said the Applicant was a good person and he had a good relationship with her children. YA was visibly emotional in giving her evidence regarding the effect of the Applicant’s imprisonment had on her children.
95.The Tribunal accepts that it would be emotionally distressing for members of the Applicant’s family if the cancellation of his Visa was not revoked.
96.The Applicant also has ties to Australian community through his friends, as evidenced by the testimonial letters provided by them to the Respondent in support of the Applicant’s revocation application. He also has ties to the community through his schooling and his employment.
97.Paragraph 8.3(4) of Direction 99 requires that decision-makers have regard to the length of time the non-citizen has resided in the Australian community, noting that:
i.considerable weight should be given to the fact that a noncitizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii.less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the noncitizen began offending soon after arriving in Australia.
98.The Applicant came to Australia at seven years of age and has lived in the country for some 17 years. He identifies Australia as his home. Having regard to para 8.3(4)(a)(i), the Tribunal gives considerable weight to the length of time the Applicant has resided in Australia.
99.Under Direction 99, the strength, nature and duration of ties to Australia is a primary consideration, and this represents a change in policy from that expressed in the previous Direction 90.45 The Tribunal affords it substantial weight in favour of revocation in the Applicant’s case.
Best Interests of Minor Children affected by the Decision
100.Paragraph 8.4(1) requires that decision-makers must make a determination about whether non-revocation under s 501CA is, or is not, in the best interests of a child affected by the decision.46
101.The Applicant has no children of his own but has identified the seven minor children of his uncle and YA, aged 15, 14, 13, 11, 10, 8, and 3, being his cousins.
102.YA gave evidence that before he went to prison the Applicant had a close relationship with the children, other than the 3 year old (who was born after the Applicant went to prison). When he lived with her and his uncle, the Applicant helped to look after the children, including making their breakfasts and ensuring that they were showered. He also helped YA with cleaning in the home. She said he was actively engaged with all of the children.
103.The best interests of each child must be given individual consideration to the extent that their interests differ.47 However, there is insufficient evidence before the Tribunal to support a conclusion that there are differing interests between the children nominated to justify giving them separate consideration.
45 NHBK and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 364 at [125].
46 This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made: para 8.4(2) of Direction 99.
47 Paragraph 8.4(3) of Direction 99.
104.In considering the best interests of the child, para 8.4(4) requires specific factors to be considered. The consideration of the factors relevant in this case are set out below:
(a)the nature and duration of the relationship between the child and the non- citizen. Less weight should generally be given where the relationship is non- parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
105.The Applicant’s relationship with the children is non-parental. The parental role is filled by YA and the Applicant’s uncle. The Applicant has been in prison and detention continuously since he was arrested in September 2018 and has had little contact with any of the children
since that time. Even before he was arrested the Applicant’s evidence was that he ceased living with his uncle when he moved out to live with his brother DA in 2016.
106.There is no evidence that paras8.4(4)(c), (g) and (h) are relevant to the Applicant.
107.Notwithstanding the limited contact the Applicant has had with the children in recent times, the Tribunal accepts that it is of value to the children to have the opportunity to establish and maintain a relationship with him as a family member. This is particularly so as the family has experienced disruption and dislocation in respect of wider family relationships and their cultural roots.
108.While there would be some opportunity for the children to develop and maintain a relationship with the Applicant if he were deported or kept in detention, the Tribunal is satisfied that it would be in their best interests for the cancellation of the Applicant’s Visa to be revoked.
109.The best interests of minor children affected by the decision is a primary consideration under Direction 99 and weighs in favour of revoking the cancellation of the Applicant’s Visa. However, given that the Applicant has no parental role and has had limited contact with any of the children over the last six years the Tribunal gives this consideration only moderate weight.
Expectations of the Australian Community
110.Paragraph 8.5 of Part 2 of Direction 99 provides:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2)In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
111.Paragraph 8.5(4) states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
The majority of the Full Court of the Federal Court has explained that para 11.3 of the former Direction 65 which mirrors the wording of paras 8.5(1) and (2):
…should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasizes that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
The question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion.48
112.The Applicant has clearly acted contrary to the deemed community expectation in his offending in 2017 and especially in 2018. While his offences do not fall into any of the categories particularised in para 8.5(2) of Part 2 of Direction 99, they are very serious offences involving theft and threatened and actual violence and the Tribunal has found that there is a moderate risk that he will re-offend.
48 FYBR v Minister for Home Affairs (2019) 272 FCR 454, [75]-[76].
113.As to the weight to be given to this consideration, considerable care is required in determining the proper weight and the Tribunal must carefully consider the facts and circumstances of the case to determine whether it is appropriate.49
114.In assessing the weight to give to this consideration, the Tribunal notes that there are factors which confirm the expectation expressed in para 8.5(1). The Applicant’s offences were serious and involved violence. The offences in 2018 resulted in serious injury to innocent third parties. The Applicant’s record in prison and detention has been marked by many instances of breaches of discipline and on several occasions has involved violence, which on one occasion resulted in a conviction for the offence of affray. There is a moderate risk that the Applicant will re-offend if released into the community.
115.On the other hand, some matters tend to mitigate against giving the community expectation full weight. The Applicant has a troubled background having fled from South Sudan to live in a refugee camp in Kenya at a young age, being separated from his parents and arriving in Australia at the age of seven and having to face the difficulties of adjusting to life in a new country. He had disrupted schooling and has limited intellectual and cognitive ability. He experienced difficulties with substance abuse at a relatively young age. He offended at a very young age and his offending was affected by situational factors. In 2017 he resorted to armed robbery to get money. At the time he was a juvenile, homeless and affected by substance abuse. His offending in 2018 was unrelated to his earlier offending and arose in unplanned circumstances and his actions were affected by alcohol and possibly the effects of concussion. He is genuinely remorseful for his offending. He has served his sentence for his crimes, he genuinely desires to live a prosocial life and he has support in the community.
116.Having regard to these circumstances, the Tribunal is satisfied that there are considerations which mitigate against giving the deemed expectation of the Australian community substantial weight. In particular, some accommodation is warranted for the fact that the Applicant is now a relatively young man and at the time of his offending he was initially a juvenile and later barely an adult. His offending does not reveal a pattern of established criminal behaviour and there is no evidence that he possesses any fundamental character
49 Ibid at [71]-[72] (Charlesworth J), [97]-[98] (Stewart J).
flaws or has psychological issues which pose a threat to the community. There is a significant situational element to his offending.
117.Accordingly, while the expectation of the Australian community is a primary consideration which favours not revoking the cancellation of the Applicant’s Visa, the Tribunal gives it limited weight in the overall assessment of all the considerations.
OTHER CONSIDERATIONS – PARAGRAPH 9 OF PART 2
Legal Consequences of the Decision
118.Paragraph 9.1(1) requires decision-makers to be:
…mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen.
119.The Applicant asserts that he is a person to whom Australia has non-refoulement obligations in respect of his removal to South Sudan50 and that it would be a breach of Australia’s international obligations for him to be forcibly removed to that country.
120.The Applicant asserted that it is not safe for him to return to South Sudan, as he is a member of any of the following particular social groups:
a.young men at risk of forcible recruitment by armed groups;
b.persons perceived as wealthy or foreign;
c.returnees who have not lived in South Sudan since early childhood;
50 A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.
d.returnees who have no family or tribal connections in South Sudan;
e.failed refugees/asylum seekers in South Sudan; and
f.returnees from a Western country.
121.While it is open to the Applicant to raise international non-refoulement obligations, para 9.1.2(2) of Direction 99 makes it clear that:
… it is not necessary at the section 501/section 501CA stage to consider non- refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person’s representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.
122.Whether or not the risks identified by the Applicant would engage Australia’s non- refoulement obligations in respect of the Applicant is a matter which is best determined under the process for determining protection visa applications, and the Tribunal will proceed on the basis that if and when the Applicant applies for a protection visa, any protection claims he has will be assessed.
123.The majority in Plaintiff M1/2021 v Minister for Home Affairs51explained that where a decision-maker defers assessment of whether non-refoulement obligations are owed to permit the applicant to apply under the protection visa procedures, it nevertheless may be
51 Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [39] citing various Full Federal Court authorities including DOB18 v Minister for Home Affairs [2019] FCAFC 63; (2019) 269 FCR 636 at 681 [185] and Omar
[2019] FCAFC 188; (2019) 272 FCR 589 at 607 [39].
necessary for the decision-maker to take account of the alleged facts underpinning that claim where those facts are relied upon in support of there being "another reason" why the cancellation decision should be revoked. Mindful of this, the Tribunal has had regard to the non-refoulement matters raised by the Applicant in relation to relocation to South Sudan in the context of its consideration of the extent of impediments if the Applicant were to be removed to that country.
124.It is not appropriate for the Tribunal to speculate on the likely outcome of an application for a protection visa, but Direction 99 does require the Tribunal to consider the legal implications of its decision. In this sense, it is appropriate for the Tribunal to consider the Applicant’s circumstances and possible legal options should it decide against revocation.
125.If the Tribunal were to affirm the Reviewable Decision the consequences for the Applicant are that:
(a)he would be liable to immediate removal from Australia to South Sudan pursuant to s 198 of the Act, irrespective of whether Australia owes him non-refoulement obligations; and
(b)he would have the option to apply for a protection visa.
126.If the Applicant applied for a protection visa, he would likely be held in immigration detention for a considerable time pending consideration of his application.
127.Broadly speaking, there are two aspects to be satisfied for the grant of a protection visa under s 36 of the Act. Firstly, under s 36(1C) the Applicant must not be a person whom the Minister considers, on reasonable grounds, is a danger to the community (having been convicted of a particularly serious crime). Secondly, the Applicant must be a person to whom Australia has protection obligations as stated in s 36(2), resulting in a protection finding (as defined in s 197C of the Act).
128.There are three possible outcomes of an application for a protection visa:
a.The Applicant may be granted a protection visa, in which event he would be released into the Australian community.
b.The Applicant may be refused a protection visa without a protection finding being made, in which event he would face deportation to South Sudan.
c.A protection finding may be made for the Applicant in respect of South Sudan but the protection visa refused on other grounds. In that event the Applicant will be precluded from deportation to South Sudan by s 197C of the Act and liable to be detained in immigration detention while steps are taken to find a third country willing to accept him.
129.In considering option (c) the recent decision of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCATrans 154 (NZYQ) is relevant.
130.On 8 November 2023, the High Court gave judgment in NZYQ by pronouncing orders. Those orders relevantly included:
d.It is declared that, by reason of there having been and continuing to be no real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future:
i.the plaintiff’s detention was unlawful as at 30 May 2023; and
ii.the plaintiff’s continued detention is unlawful and has been since 30 May 2023.
e.A writ of habeas corpus issue requiring the defendants to release the plaintiff forthwith.
131.Following NZYQ, amendments were made to the Migration Act to facilitate the release into the community of protected non-citizens for whom a third country cannot be found within a reasonable period, on a Class WR Bridging R (subclass 070) visa (BVR visa). The Migration Amendment (Bridging Visa Conditions) Act 2023, commencing from 18 November 2023 and with amendments to Subclause 070.612(1) of Schedule 2 of the Migration Regulations 1994 (Cth) provide for BVR visas to include stringent mandatory monitoring
conditions and prescribe offences for failing to comply with specific conditions, attracting penalties of up to 5 years imprisonment.
Summary
132.The immediate effect of a refusal to revoke the cancellation of the Applicant’s Visa is that he will be retained in immigration detention. He will then face either involuntary removal to South Sudan or a prolonged period of uncertainty in detention while his protection visa application is considered. He will face uncertainty about whether he will have a protection finding made or be subject to deportation to South Sudan. If a protection finding is made but he does not get a protection visa, he would then face a further indefinite period of detention while steps are taken to try to find a third country willing to take him. If that does not eventuate, he may be released into the community on a bridging visa subject to very onerous conditions.
133.These are serious consequences for the Applicant and although not a primary consideration under Direction 99, the legal consequences of a decision not to revoke the cancellation of the Visa weighs substantially in favour of revocation.
Extent of impediments if removed
134.Paragraph 9.2(1) of Part 2 requires that:
Decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)the non-citizen’s age and health;
b)whether there are substantial language or cultural barriers; and
c)any social, medical and/or economic support available to them in that country.
135.The Applicant referred to DFAT information which describes South Sudan as an impoverished and dangerous country, citing the Overseas Security Advisory Council South Sudan 2020 Crime and Safety Report which noted poor conditions relating to crime, health facilities and infrastructure in South Sudan, and the April 2020 Bertelsmann Stiftung Report, which reported that job prospects for the formal and informal sectors are poor, and there is little welfare, with people depending on relatives and networks.52 The Respondent confirmed the DFAT information and accepted that around 75 per cent of the population is facing food insecurity and in need of humanitarian assistance and there is an 'extremely volatile security environment’, with public places being targets of terrorism. Kidnapping, murder, shootings and armed robbery are common as is petty crime.53
136.In addition to his vulnerability as a member of the groups identified in his non-refoulement submission, the Applicant asserts that he is likely to face substantial impediments in establishing himself and maintaining basic living standards in South Sudan. At a practical level, these include that:
a.the Applicant has been absent from South Sudan since he was four years old;
b.consequentially, he has no meaningful knowledge of the geography, culture, customs, or practices of South Sudan;
c.he is not connected to any services in that country;
d.he has no family members or local contacts in the country on whom he might rely upon;
e.he has no obvious access to housing in South Sudan;
f.he has no obvious access to healthcare in South Sudan;
g.he has no obvious economic prospects in South Sudan due to his own lack of knowledge of the country, and due to the parlous state of the local economy.
52 G4 335-336.
53 RSFIC [53].
137.The Respondent accepts that the Applicant will face impediments if removed to South Sudan. Although English is the official language of South Sudan, the Respondent accepts that the Applicant is ignorant of the indigenous languages, and is, in some ways, culturally foreign. The Respondent also accepts that the lack of a family network in South Sudan may increase the Applicant's difficulty in finding work and housing.
138.In contrast, the Respondent also asserted that the Applicant may have some advantages relative to others in South Sudan. He is a healthy young man and his education, work experience in Australia and knowledge of English may be advantageous in seeking employment and housing. The Tribunal accepts that these factors may provide some advantages for the Applicant, although it gives them little weight when compared to the obvious difficulties the Applicant would face if relocated to South Sudan.
139.The Respondent also raised the fact that the Applicant's parents live in the neighbouring country of Kenya and are supported financially by relatives in Australia, and submitted that the Applicant could receive similar support and may be assisted by the proximity of his parents. The Tribunal rejects this submission as pure speculation. The Applicant’s parents live in a refugee camp in Kenya having fled from South Sudan. The evidence of DA was that he had a limited ability to assist his parents financially and it was only when he was able to combine income with the Applicant that he was able to support his parents to live in Nairobi.
140.Having regard to these matters, the Tribunal is satisfied that the Applicant would face substantial impediments in establishing himself and maintaining basic living standards if he were removed to South Sudan. This consideration favours a decision to revoke the cancellation of the Applicant’s Visa and the Tribunal gives it substantial weight.
Impact on Victims
141.Paragraph 9.3(1) of Part 2 requires:
Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or
cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
142.The relevant impact under para 9.3 is the adverse impact likely to result from the non-citizen being granted a visa.54
143.The Tribunal does not have any evidence of the possible impact of its decision on the victims of the Applicant’s criminal behaviour, their families or other members of the Australian community who may be adversely impacted.
144.Accordingly, the Tribunal gives this consideration no weight.
Impact on Australian business interests
145.Paragraph 9.4(1) requires:
Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
146.The Applicant has a short work history. He started work at sixteen and worked in a number of labouring positions in the construction industry, in a factory and later commenced an apprenticeship as a roof tiler. He ceased employment when imprisoned at the age of eighteen. There is no evidence that the Applicant possesses any special skills which could not be sourced in the general labour market.
147.There is no evidence that a decision not to grant the Applicant a Visa would compromise the delivery of a major project or important service in Australia, or that the removal of the Applicant from Australia would have any significant impact on Australian business interests otherwise.
54 CGX20 v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs (No 2) [2020] FCA 1842 [17]-[21], which considers the analogue consideration at 14.4 of Direction No 79.
148.Accordingly, the Tribunal gives this consideration no weight.
CONCLUSION
149.In Gaspar v Minister for Immigration and Border Protection,55 North ACJ elaborated on how to approach the exercise of the discretion under s 501CA(4)(b)(ii) of the Act:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view.
150.A summary of the factors for and against revocation is set out below:
Factors against
151.There are two considerations under Direction 99 which weigh against revoking the cancellation of the Applicant’s Visa:
(a)The protection of the Australian community is a primary consideration. The Applicant’s prior offending was very serious and a repetition of that conduct would involve significant harm to members of the Australian community. The risk of that occurring is moderate, but because of the serious nature of the offending the Tribunal gives the protection of the Australian community substantial weight.
(b)The expectation of the Australian community is that the Applicant, as a non-citizen, will obey Australian laws while in Australia. This is a primary consideration which favours not revoking the cancellation of the Applicant’s Visa, but having regard to all of the circumstances, the Tribunal gives it limited weight in the overall assessment of all the considerations.
55 [2016] FCA 1166, [38].
Factors in favour
152.There are four considerations which weigh in favour of revoking the cancellation of the Applicant’s Visa:
(a)The strength, nature and duration of ties to Australia is a primary consideration. The Applicant identifies with Australia, he has lived in Australia for 17 years which is the majority of his life. He has strong family ties and broader community ties to Australia. Because of the strength nature and duration of those ties the Tribunal gives this consideration substantial weight.
(b)It would be in the best interests of the Applicant’s seven cousins for the cancellation of the Applicant’s visa to be revoked. The interests of minor children is a primary consideration. However, as the Applicant has no parental role and has had limited contact with any of the children over the last 6 years or so, the Tribunal gives this consideration only moderate weight.
(c)The Tribunal is satisfied that the legal consequences of a decision not to revoke the cancellation of the Visa, and especially the possibility of the Applicant being involuntarily removed to South Sudan or remaining in immigration detention for a prolonged period, weighs substantially in favour of revocation, even though it is not a primary consideration.
(d)The Applicant would face substantial impediments in establishing himself and maintaining basic living standards if he were removed to South Sudan and this consideration weighs substantially in favour of revocation.
Conclusion
153.Paragraph 7 of Part 2 of Direction 99 provides guidance on how relevant considerations are to be assessed. It states that:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
154.Weighing the factors for and against revocation requires the Tribunal to give both primary and other considerations appropriate weight. This requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.56
155.In assessing the relative weight to attribute to factors for and against revocation, the Tribunal has had regard to the principles set out in para 5.2 of Direction 99 which provide the framework for decision making under s 501CA of the Act. Those principles are:
(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 noncitizens 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
56 Suleiman v Minister for Immigration and Border Protection [2018] FCA 594, [23].
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.
(5)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen’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 8.55(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.
156.The Tribunal accepts that these principles generally reinforce the importance of the factors weighing in favour of not revoking the cancellation of the Applicant’s Visa. The protection of the Australian community is a primary consideration and warrants substantial weight. In the Applicant’s case the expectations of the Australian community are of lesser significance. However, a consideration of these factors needs to take into account the fact that the Applicant arrived in Australia at the age of seven and has lived in Australia for the last 17 years. The Direction recognises that the Australian community will generally afford a higher
level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
157.In weighing the factors in favour of revocation the Tribunal gives significant weight to the strength, nature and duration of the Applicant’s ties to Australia and to a lesser extent the best interests of minor children both of which are primary considerations. The legal consequences of the decision is not a primary consideration under Direction 99, but a decision not to revoke cancellation would result in the Applicant facing an uncertain future in which there is the possibility of involuntary removal and/or prolonged immigration detention pending determination of any application he may make. In addition, the prospect of removal to South Sudan carries with it significant impediments for the Applicant, should he have to establish himself in that country.
158.Weighing up these factors the Tribunal is satisfied that the considerations in favour of revoking the cancellation of the Applicant’s Visa outweigh the considerations against revocation. Accordingly, the Tribunal is satisfied that under s 501CA(4)(b)(ii), there is another reason why the cancellation of the Applicant’s Visa should be revoked.
DECISION
159.The decision under review is set aside and in substitution the Tribunal decides that the statutory discretion under s 501CA(4) of the Migration Act 1958 (Cth) is to be exercised to revoke the cancellation of the Applicant’s Class XV Subclass 202 Global Special Humanitarian visa.
APPENDIX A – List of Exhibits
List of Exhibits
A1
Statement of DA (undated)
A2
Statement of YA of 22 November 2023
A3
Statutory declaration of ECN of 22 November 2023
R1
Bundle of further documents produced under summons lodged 17 July 2023
I certify that the preceding 159 (one hundred and fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Member R. West
...............[SGD]...............
Associate
Dated: 5 December 2023
Date(s)ofhearing: 27 & 28 November 2023 Datefinalsubmissionsreceived:
30 November 2023
CounselfortheApplicant:
Mr Nikolas Barron
SolicitorsfortheApplicant:
Ajak & Associates
SolicitorsfortheRespondent:
Australian Government Solicitor
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