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

CDHQ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1191 (13 April 2023)
Division:GENERAL DIVISION
File Number: 2023/0511
Re:CDHQ
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member D. Cosgrave
Date:13 April 2023
Date of written reasons: 12 May 2023
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review and substitutes a decision revoking the original visa cancellation.
............[SGD]............
Member D. Cosgrave
Catchwords
MIGRATION – Mandatory visa cancellation – South Sudanese citizen – Global Special Humanitarian (Class XB) (Subclass 202) visa – failure to pass good character test – criminal record – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 99 applied – delegate’s decision set aside and substituted.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Regulations 1994 (Cth)
Cases
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
Bushell v Repatriation Commission (1992) 175 CLR 408
Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588
Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78
EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Matthews v Minister for Home Affairs [2020] FCAFC 146
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Murphy v Minister for Home Affairs [2018] FCA 1924
Nathanson v Minister for Home Affairs [2022] HCA 26
Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
Secondary Materials
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)
REASONS FOR DECISION
Member D. Cosgrave
12 May 2023
INTRODUCTION

CDHQ seeks review of the Respondent’s delegate’s decision on 17 January 2023 not to revoke the mandatory cancellation of his Global Special Humanitarian (Class XB) (Subclass 202) visa (the visa).[1]
[1] G documents (bookmarked G1-G27), G5, page 19. G documents are so named because they are provided under s 501G of the Migration Act 1958 (Cth). They consist of documents in the possession or control of the Respondent relevant to the making of a reviewable decision. They usually accompany the Minister’s written notice regarding a visa cancellation, refusal, or non-revocation.
The hearing was held by video from the Tribunal’s Brisbane Registry on 3 and 4 April 2023. CDHQ represented himself. The Respondent was represented by Ms. Frankel, a legal practitioner with Minter Ellison Lawyers.
The Tribunal commends Ms Frankel for her professional manner, her elucidation of evidence in cross-examination and her approach to CDHQ as a self-represented applicant.
On 13 April 2023 the Tribunal set aside the Respondent’s decision under review by providing a short form decision which is attached as Annexure B to these written reasons. The Tribunal now gives its reasons for its decision.
Unless the context indicates otherwise, passages quoted in bold font have been emphasised by the Tribunal.
FACTS
CDHQ is a 24-year-old South Sudanese citizen.[2] He first arrived in Australia in 2017.[3] He has not subsequently left the country.
[2] G6, page 39.
[3] G26, page 190.
On 3 September 2020, a delegate decided to revoke the original decision to cancel CDHQ’s visa under subsection 501(3A) of the Migration Act 1958 (Cth) (the Act).[4]
[4] G22, page 118.
On 28 May 2021, CDHQ was convicted of Serious Assault – assault/ resist/ obstruct police officer/ person acting in the aid of a police officer and received an imprisonment sentence of 18 months (May 2021 Conviction).[5]
[5] G6, page 40.
On 10 June 2021, a delegate of the Respondent Minister decided to cancel CDHQ's visa under subsection 501(3A) of the Act because CDHQ failed the character test due to his May 2021 Conviction.[6]
[6] G14, page 76.
On 7 July 2021:
a.CDHQ made representations by way of a revocation request form to have the cancellation revoked under subsection 501CA(4 ) of the Act;[7] and
b.he made further representations by way of a personal circumstances form.[8]
[7] G16.
[8] G17.
On 16 November 2022, a delegate of the Respondent Minister wrote to CDHQ providing him an opportunity to comment on further information which may be considered when making the decision whether to revoke the original decision to cancel his visa under section 501CA of the Act.[9]
[9] G24.
On 13 December 2022, a delegate of the Respondent Minister again wrote to CDHQ providing him an opportunity to comment on further information, being client detention incident reports, which formed part of the information under consideration when making the decision whether to revoke the original decision to cancel his visa pursuant section 501CA of the Act.[10]
[10] G25.
On 17 January 2023, the delegate of the Respondent Minister decided not to revoke the mandatory cancellation of the visa pursuant to section 501CA(4) of the Act. CDHQ received the decision on 19 January 2023.[11]
[11] G3.
On 30 January 2023, CDHQ applied to the Tribunal for a review of the delegate's decision.
OFFENDING HISTORY
CDHQ’s extensive offending history is set out in:
(a)National Criminal History Check report (dated 10 November 2022).[12]
(b)Judge Rosengren’s sentencing decision (District Court of Queensland) (dated 8 February 2022).[13]
(c)Magistrate Smith’s decision (Magistrates Court of Queensland) (dated 28 May 2021).[14]
(d)Judge Barlow KC’s sentencing decision, (District Court of Queensland) (dated 9 July 2019).[15]
(e)Magistrate Quinn’s decision (Magistrates Court of Queensland) (dated 30 January 2019).[16]
(f)Magistrate Kahlert’s decision (Magistrates Court of Queensland) (dated 27 June 2018).[17]
[12] G6, pages 39-47.
[13] G7, pages 48-52.
[14] G8, pages 53-58.
[15] G9, pages 59-62.
[16] G10, pages 63-68.
[17] G11, pages 69-71.
CDHQ’s offending can be categorised under the following areas:
(a)Assaulting a police officer.
(b)Assault.
(c)Armed robbery.
(d)Domestic violence.
(e)Theft.
(f)Possession of drugs
(g)Willful and unlawful damage to property.
(h)Breaches of probation.
(i)Breaches of bail conditions.
CDHQ has been convicted over 200 times since arriving in Australia.
THE ISSUES
CDHQ arrived in Australia as an 18 year old refugee from South Sudan in 2017 and started offending soon afterwards.
Do the legal consequences of a visa revocation decision and the impediments CDHQ would face in returning to South Sudan outweigh the primary and other considerations in considering whether to affirm or set aside the delegate’s 17 January 2023 decision?
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) and Section 500 of the Act are the sources of the Tribunal’s jurisdiction in this matter.
Section 501(3A) of the Act, read with sections 501(6) and 501(7), oblige the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test and is serving a full-time sentence of imprisonment.
The ‘character test’ is defined in Section 501(6) of the Act. A person fails the test if they have a ‘substantial criminal record’ defined by section 501(7) of the Act.
Section 501(7)(c) of the Act defines a ‘substantial criminal record’ as including the situation where a person is sentenced to a term of imprisonment of 12 months or more.
Under Section 501CA(3) of the Act, the Minister is obliged to give notice of a cancellation decision as soon as practicable after it is made, and to invite the affected person to make representations about revocation.
Section 501CA(4) of the Act confers a power upon the Minister to revoke the original decision if:
(a)the person whose visa has been cancelled makes representations in accordance with the invitation; and
(b)the Minister is satisfied that the person passes the character test, or there is another reason why the original decision should be revoked.
MATTERS FOR CONSIDERATION
Character test
CDHQ’s visa was cancelled on the basis that CDHQ had a substantial criminal record as he had been sentenced to a term of imprisonment of more than 12 months and was serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or Territory (Sections 501(6)(a) and 501(7)(c) of the Act).
CDHQ does not pass the character test due to the operation of Sections 501(6)(a) and 501(7)(c) of the Act.
Consequently, Section 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation decision.
The remaining issue for the Tribunal to consider under Section 501CA(4)(b)(ii) of the Act is whether the discretion to revoke the cancellation decision is enlivened by the Tribunal’s satisfaction that there is ‘another reason’ for revocation.[18] The Tribunal “stands in the shoes of the original decision-maker” but with regard for the situation at the time of its decision.[19]
[18] Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125, [3]-[5] (Katzmann J); [24] (Derrington J) [103] (O’Bryan J).
[19] Nathanson v Minister for Home Affairs [2022] HCA 26 (“Nathanson”); Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51]; Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 299 [40], 315 [100], 324-325 [134]; Bushell v Repatriation Commission (1992) 175 CLR 408, 425 (Brennan J); Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78, [10]-[11] (Logan, Perry, and Beach JJ).
Is there another reason why CDHQ’s visa cancellation should be revoked?
The Full Court of the Federal Court in Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172, approving the reasoning in Viane,[20] identified the following principles as relevant to the statutory task conferred by Section 501CA(4) at [27]:
1If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.
2The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.
3The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.
4However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.
5Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.
6If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation.…”
[20] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).
When the Tribunal assesses and considers the factors weighing for and against revoking a visa cancellation, Section 499(2A) of the Act requires it to comply with Direction 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).[21]
[21] See Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337 at para [38].
The Direction
Section 499(1) of the Act empowers the Minister to give written directions to a person or body having functions or powers under the Act. Decision makers under the Act, except for the Minister acting personally, must apply the Direction.[22]
[22] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, at [4] (Rares, O’Callaghan and Jackson JJ).
The Direction contains mandatory and aspirational considerations guiding the exercise of statutory power under the Act.[23]
[23] BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99, at [22], citing with approval Matthews v Minister for Home Affairs [2020] FCAFC 146, at [45].
The following principles in paragraph 5.2 of the Direction inform the decision-making process:[24]
1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2Non-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.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
5With 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.
6Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(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.
[24] Paragraph 5.2 of the Direction.
Paragraph 6 of the Direction provides that, informed by the above principles, a

decision-maker must take into account the primary and other considerations described in Paragraphs 8 and 9 of the Direction in determining whether to set aside or affirm the delegate’s non-revocation decision.
Paragraph 8 of the Direction provides the following primary considerations:
1protection of the Australian community from criminal or other serious conduct;
2whether the conduct engaged in constituted family violence;
3the strength, nature and duration of ties to Australia;
4the best interests of minor children in Australia; and
5expectations of the Australian community.
Paragraph 9 of the Direction identifies the following non-exhaustive list of other considerations to be considered where relevant:
a.legal consequences of the decision;
b.extent of impediments if removed;
c.impact on victims; and
d.impact on Australian business interests.
Paragraph 7(1) provides that appropriate weight should be given to ‘information and evidence from independent and authoritative sources.’
Paragraphs 7(2)-(3) of the Direction state that ‘Primary considerations should generally be given greater weight than the other considerations,’ and ‘One or more primary considerations may outweigh other primary considerations.’
The Tribunal is not precluded from finding that a consideration specified under Paragraph 9 of the Direction has equivalent or greater weight than a consideration specified under Paragraph 8 of the Direction. This depends on the specific circumstances of each case.[25] The weighing process is determined by decision-makers exercising the relevant power under the Act.[26]
[25] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, at [23] and [28] (Colvin J); FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19.
[26] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, at [57].
EVIDENCE
The following is a summary of the evidence before the Tribunal including CDHQ’s oral testimony. The evidence referred to below includes documentary evidence collated for the purposes of section 501G of the Act, documents tendered by the Respondent and the Applicant and evidence given by CDHQ at the hearing in response to questions in examination-in-chief, re-examination, under cross-examination and from the Tribunal.
Documentary evidence

The hearing received written evidence, which is attached to this Decision and marked ‘Annexure A’. The following documents were tendered into evidence and considered by the Tribunal:
(a)G Documents numbering 213 pages.
(b)Supplementary G Documents numbering 672 pages and containing documents produced under summons by the Queensland Police Service, the Richlands Magistrates Court, the Ipswich Magistrates Court, the Brisbane Magistrates Court, the Brisbane District Court, Queensland Corrective Services and reports from immigration detention authorities.
(c)A statement of facts, issues and contentions prepared by the Respondent numbering 13 pages.
(d)A hand-written and signed statement from CDHQ.
(e)A statement of acts, issues and contentions submitted by CDHQ.
(f)An additional statement of the facts of CDHQ’s case.
(g)Country information documents about South Sudan.
(h)Information released by the Department of Home Affairs under a FOI request.
(i)A report in relation to condition and impact of immigration detention.
(j)A signed statement from the CDHQ’s younger sister- Ms AB.
(k)A signed statement from CDHQ’s mother – Mrs AA.
(l)A signed statement from the CDHQ’s uncle- Mr MA.
CDHQ was the only witness during the hearing.
CDHQ’s evidence
Relevant aspects of CDHQ’s evidence are summarised below:
Examination-in-chief by the Tribunal
CDHQ affirmed his statements.[27]
[27] Transcript, page 7, lines 23-28.
Cross-examination
Ms Frankel conducted a thorough cross-examination of CDHQ:
Focusing on CDHQ’s drinking:
“R: Why did you move out of your family home with your mother and siblings?
CDHQ: I turn 18 and I had some alcohol problem - problem is when I was - trying to better my stuff and all that.
R: So when you moved out, where did you move to?
CDHQ: I was living alone.
R: Sorry, could you repeat that, [CDHQ]?
CDHQ: I was on the street and I was looking for a place to stay.
R: So when you left your home with your mother and your siblings, you didn’t have somewhere to stay organised?
CDHQ: Yes.
R: And did something happen that required you to move out of the family home?
CDHQ: Yes.
R: Could you tell me a bit about what happened?
CDHQ: I remember coming home drunk and I was trying to open the door and the door - the glass start - broke. Yes, my mum wasn’t happy about it so - yes, I was only trying to open the door and then accidentally the glass start - I break the glass, the door glass.
R: So did you move out of home because of this incident or because you were 18 and wanted some freedom?
CDHQ: No - yes, I was 18 and in my culture drinking alcohol is really, really bad and – yes.[28]
[28] Transcript, page 8, lines 16-38.
Focusing on CDHQ’s future accommodation and his arrival in Australia:
“R: And if a decision was made by the tribunal to revoke the visa cancellation, where would you go and live?
CDHQ: With my grandmum because she’s really - she’s old now and I just really want to be there for her.
R: And have you had a conversation with your grandmother about living with her?
CDHQ: Yes.
R: Have you spoken with your mother about returning to the family home?
CDHQ: Yes, I spoke to her.
R: And what did she say?
CDHQ: I told her I’m - I’m just trying to like help the family and that and she said I’m more than welcome if I’m not going to drink again.
R: And once you arrived in Australia, what did you do? Were you employed at any time?
CDHQ: I was studying English because like when I arrived I didn’t know English, reading or writing or talking. So I was doing TAFE.
R: And did you finish that course?
CDHQ: No, I didn’t finish it.
R: And why didn’t you finish it?
CDHQ: Because when I was doing school, I was homeless and I had alcohol problem and I was just trying to see AA meetings and …
R: And did you undertake any other study other than the English course?
CDHQ: Yes, I was trying to do construction and mechanic and welding.
R: And what happened with that?
CDHQ: I didn’t - I didn’t - I haven’t did it yet but - so when I was homeless and I had alcohol problem, so I was trying to just work on the alcohol problem - problems. I started drinking and - yes.
R: I will come back shortly to ask you some more questions about your references to your alcohol problems. I’ll just try and contain the line of questioning to one stream at a time for yourself and the tribunal’s ease. Just to clarify, [CDHQ], you haven’t ever worked in Australia, is that correct?
CDHQ: No, I didn’t work. I was studying.”[29]
[29] Transcript, page 10, line 18 – page 11, line 6.
Clarifying whether CDHQ has a child:
“R: Now you’ll see sort of three-quarters of the way down that page there’s a sentence starting “Risk” and then it says “Family and young son are protective factors.” This indicates to me that you may have a child and for the benefit of yourself and the tribunal I’d like to confirm whether that is a correct or an incorrect statement?
CDHQ: No, I don’t have a child, maybe a stepson.
R: Sorry, you have a stepson?
CDHQ: Yes.
R: And who is that?
CDHQ: His name is [Child J].
R: And how is he your stepson?
CDHQ: I was dating his mum but - for like a month or two months. That’s the only thing I know but I don’t have a child.”[30]
[30] Transcript, page 12, lines 29-41.
CDHQ subsequently confirmed that that he is no longer in a relationship with Child J’s mother and does not have any contact with Child J.
Other minor children in Australia:
“R: Are there any other children in your life who would be affected if the tribunal decided not to revoke your visa cancellation?
CDHQ: My nephew, my younger sisters, and brother.
R: And are these all children who are under the age of 18?
CDHQ: Correct.
R: And so you’ve mentioned your nephew twice now. How old is your nephew?
CDHQ: He was born in 2014.
R: He’s about nine years ago?
CDHQ: Yes, nine.
R: And can you describe your relationship with him? So what’s your bond like? How often you saw him before you were incarcerated? Whether you still talk to him now?
CDHQ: Yes, I still talk to him (indistinct) before I go to bed and yes. He keep saying he really missed me and (indistinct).
R: When was the last time you saw him in person?
CDHQ: December 2020 (indistinct) when I was living with my mum.
R: Did he reside in the family home with your mother?
CDHQ: Yes, he’s living with my mum.
R: And when you moved out of the family home, did you continue to see him frequently or was there a period of time where you had no contact with him?
CDHQ: Yes, I talked to them first time. Actually my older sister’s son. I talk to him every night before we go to bed. Read him some book.
R: And your younger sister and brother - how old are they?
CDHQ: (Indistinct) she’s 15 (indistinct) born in 2010.
R: (Indistinct) around 12 or 13. And what’s your relationship ‑ ‑ ‑?
CDHQ: Sorry?
R: What’s your relationship like with your younger brother and sister?
CDHQ: Yes, we very close.
R: And how frequently do you speak?
CDHQ: Every day.
R: And was there a period when you moved out of the family home where you didn’t have any contact?
CDHQ: Yes. Wasn’t for long, like two, three weeks, and then I called him.
R: What do you think the impact would be on your family if a decision was made not to revoke your visa cancellation?
CDHQ: Sorry?
R: How do you think your family would feel if the tribunal didn’t reinstate your visa?
CDHQ: They may stress and my other siblings would be heartbroken. I really don’t know, but it’s going to make mum really sad and – yes.”[31]
[31] Transcript page 13, line 22 – page 14, line 21.
Addressing CDHQ’s index offence:
“R: And the conviction that led to the current visa cancellation, was the conviction of assault on a police officer of which you were convicted on 28 May 2021. Are you able to tell the tribunal what led to that conviction?
CDHQ: I was drunk and - and I was scared. I was just trying to run away, because I thought I was just scared and I was trying to run away from him. And I accidentally pushed him…
R: Why were you scared? What was happening?
CDHQ: When it (indistinct) when he was talking to me, his hand next to the gun and I just got scared. I don’t - I didn’t know what was going to happen next.
R: And where were you when this incident occurred?
CDHQ: My mum’s house. I remember, next to the girl.
R: And why were you at your mum’s house?
CDHQ: I think - I’m pretty sure my uncle or my - my uncle might have called the police (indistinct) because they smell alcohol on me.
R: And were there orders imposed on you that prohibited you at the time from going to your mother’s house?
CDHQ: Sorry?
R: Did you have an AVO in place at that time which prohibited you from being near your mother’s residence or in your mother’s residence?
CDHQ: Yes. But it was on good behaviour.
R: And so why did you go to your mother’s house that day?
CDHQ: At the time I was living there, she called me and she said she want to talk to me. And I went there and they - they smell alcohol on me and they call the cops. And when I was talking to the coppers, I just, while he’s talking to me, he’s putting his hand next to his gun, I thought he’s going to shoot me and just tried to run away. And I accidentally pushed him. So my mum call the police because she smell - I think my uncle or my mum call the police because they smell alcohol on me.”[32]
[32] Transcript page 16, line 29 – page 17, line 15.
And
“R: … And page 379 of the S documents, which is the big bundle of documents - and I will precise but, of course, these are police records and therefore, you know, are reliable only insofar as that evidence, you know, hasn’t been or has been tested before the courts - but this gives some sort of background to that incident for the purpose of the tribunal where there is not a whole lot of other facts. Have you got that page in front of you?
CDHQ: What’s that again? Sorry.
R: Have you got page 379 in front of you - of the large bundle of documents with S at the top? You’ll see about halfway down the page that it says:
The defendant,
Which is yourself:
stood up from sitting down on the driveway and continued to converse with police. The defendant remained calm and cooperative and appeared to be coherent and reasonable with police. The defendant has then made a comment, the words to the effect, “If I run you won’t be able to catch me”, to which police replied that he was probably right.
It then says in the next paragraph:
The defendant,
Being yourself:
then launched himself forward and grabbed the constable around the head and placed him in a brief headlock.
R: Is that a correct version of what transpired that evening?
CDHQ: Correct.
R: So, that is what took place?
CDHQ: Yes.
R: And why was it appropriate, did you think, to place the police officer in a headlock?
CDHQ: I wasn’t trying to put him in a headlock, because I’m tall. I just tried to run away and he’s trying to grab me, and accidentally - I wasn’t - my intention not to put him in a headlock.
R: So, just to clarify, did you or did you not put him in a headlock?
CDHQ: I did, I’m pretty sure.”[33]
[33] Transcript, page 17, line 26 – page 18, line 20.
Clarifying to what extent his series of stealing charges relates to his uncertain income:
“R: What were you stealing? So most of the convictions for stealing - what were you stealing from the shops?
CDHQ: I think bottle of alcohol, sometime food.
R: And is it correct ‑ ‑ ‑?
CDHQ: Bottle of alcohol.
R: - - - whilst you were - since your arrival in Australia, have you been on Centrelink the entire time?
CDHQ: Sorry?
R: Were you receiving Youth Allowance since your arrival in Australia?
CDHQ: Yes. I think six months, eight months after arriving.
R: And when - do you still receive Youth Allowance or has that stopped?
CDHQ: That’s stopped now because I’m in here in detention and when I was in prison, that stopped.
R: So whilst you were stealing, you were receiving financial support that could’ve assisted you to pay for food or alcohol; is that correct?
Yes.
R: And so why were you stealing?
CDHQ: At the time I didn’t know that I need to just go to Centrelink and report, to get the Youth Allowance. I thought that’s - like, once a month, so every two months, but it was every two weeks to go report. I didn’t know that.
R: Sorry, [CDHQ]. I need to clarify. You previously told me that you started receiving Youth Allowance or Centrelink payments about six months after your arrival in Australia, and that those payments continued up until the point that you went to prison, and you’ve now just said that you didn’t know you needed to report to Centrelink every two weeks, and so that indicates to me that you’ve stopped getting Centrelink at some point in time. Could you clarify for me when you started getting Centrelink and when those payments stopped?
CDHQ: Because I was homeless and they’re sending a paperworks into my mum’s address, the appointment to come and report so I can get the next payment. I didn’t know that at the time, and I can’t read at the time, so I didn’t know how to get it or what’s going on.
R: So when did you stop getting Centrelink payments?
CDHQ: About three months before I went to prison. I got out up to prison, went to report to pay me, and then they stopped paying me for like four, three months.
R: When you say you were homeless and during that period, were you receiving Centrelink payments?
CDHQ: Yes.
R: For the entire time that you were homeless, Centrelink were still paying you money; is that correct?
CDHQ: No. When I become homeless, they start sending the paperworks into my mum address, and I haven’t been receiving the paperwork, so they stopped paying me, and I didn’t know I just need to go Centrelink and report, tell them that I’m here, so they give me the next payment. I didn’t know that.
R: Right. So you did not have any financial support during the period where you moved out of your mother’s home until you were incarcerated?
CDHQ: Yes.
R: And most of your stealing offences predominantly relate to the theft of alcohol. Why - how did you sustain yourself with food if you had no financial support?
CDHQ: There’s Salvation Army (indistinct) next to a District Court in the city. They give people food (indistinct) there’s one place in Fortitude Valley. You go there, have some food, shower, and take some food if you want.
R: And so you got your first conviction for stealing on 13 October 2018, and you got a conviction recorded and received a one-month sentence which was suspended. Why did you continue stealing after that time if you had already received punishment for previously having done the same thing? Do you need me to repeat the question, CDHQ?
CDHQ: Honestly, it was stupid. I was just drunk. I wish I never did it, but I was just - I was drunk at the time when I committed (indistinct words) and I wish I never did it.
R: So, you knew that stealing was wrong and that you could get in trouble for it, and you continually did get in trouble for it, but you decided that you would still steal. Was that your thinking at the time?
CDHQ: Sorry. What’s that?
R: So, you have multiple convictions for stealing. So, do you acknowledge that it was wrong to steal?
CDHQ: Yes.
R: And despite being convicted and receiving punishment for stealing, you continued to do so. Does that mean that it didn’t worry you what the punishment was?
CDHQ: It did worry me, but I wasn’t in a good state of mind. I was drunk when it happened.”[34]
[34] Transcript page 20 line 11 – page 21, line 43.
CDHQ raised his mental health:
“R: So, as punishment for some of your convictions, the court allowed you to stay in the community as long as you complied with conditions imposed by the court, and some of those conditions required you not to drink alcohol or take drugs and to also submit to random breath tests, and if you failed those, your - the freedom to live in the community would be revoked, and you would undertake the punishment originally set out by the court. Did you understand that was imposed on you at various times?
CDHQ: Yes.
R: So, you did understand that part of your release into the community following some of your convictions required you to refrain from alcohol use. Is that correct?
CDHQ: The alcohol part, I understand it, but I - it was - I thought it was good behaviour. I had a mental health issue at the time, and I thought drinking could make me be better, but it was stupid.”[35]
[35] Transcript, page 22, line 28 – page 22, line 38.
When it was put to CDHQ that he has an extensive criminal history, he agreed:
“R: Would you agree that you have a very long criminal history that only spans a very short period of time?
CDHQ: Yes.”[36]
[36] Transcript, page 25, line 26 – page 25, line 28.
Drinking
“R: So, CDHQ, I would now like to talk about your references to alcohol and having an alcohol problem or issue, and to understand it a bit further. Can you remind the tribunal again when you started - or when you first tried alcohol, approximately?
CDHQ: 2018 at the end of the year.
R: And how frequently were you consuming alcohol when you first started?
CDHQ: I was drinking but not a lot.
R: And when you say not a lot, was it a daily, was it once a week, few times a week?
CDHQ: Daily.
R: And when you would drink daily, how much would you on average consume?
CDHQ: Maybe a one litre.
R: Of, like, spirits or are we talking beer or wine?
CDHQ: Mixing it. Some beer, wine and spirits all together.
R: And when you say you were drinking daily, approximately a litre of alcohol, did that start from the end of 2018 or did you progress to that point over time?
CDHQ: Yes. I remember I started drinking in - the first drink I had was 2017 and then by 2018 mid-year started drinking heavily. Yes.
R: So, just before you told the tribunal that you first tried drinking at the end of 2018. Was that actually correct and you meant 2017?
CDHQ: No. 2018.
R: You just told me after you said you started drinking at the end of 2018 that you first drink was 2017, and by the mid-2018 you were drinking heavily. So, just to clarify when your first drink was in 2017, shortly after you arrived in Australia. Is that correct?
CDHQ: Yes.
R: And then you continued drinking from that time, but by the mid of 2018 you were drinking heavily, approximately daily, about a litre of alcohol?
CDHQ: Yes.”[37]
And
“R: And when you told the psychiatrist in immigration detention on 10 January 2020 that you drank three times a week heavily, is that correct or is the evidence that you gave me earlier that you drank daily heavily the correct version of how frequently you drank?
CDHQ: Yes. When I was - when I was outside in the community, yes, I drink daily. Sometime I skip maybe one day, and the drink. All I remember I was drinking every day. Sometime I just have one beer a day and then the next day I drink heavily. I really had a alcohol problem at the time.
R: So, you admit that you had an alcohol problem?
CDHQ: Yes.”[38]
DOCUMENTARY EVIDENCE
[37] Transcript, page 34, line 16 – page 35, line 2.
[38] Transcript, page 38.
CDHQ’s Statements
The Tribunal considered CDHQ’s statements contained in the G Documents:
a.Undated statement.[39]
b.Personal Circumstances Form dated 1 July 2021.[40]
c.Statement dated 25 November 2022.[41]
d.Statement dated 23 December 2022.[42]
[39] G2, pages 8-9.
[40] G17, pages 88-102.
[41] G18, pages 103-106.
[42] G19, pages 107-110.
The Tribunal notes that the handwriting styles varies considerably across these statements.
Statements of CDHQ’s sister, mother and uncle
These statements from, respectively, CDHQ’s sister, mother and uncle gave the Tribunal additional information about CDHQ’s family and the nature of CDHQ’s offending.
IHMS Reports
In the absence of expert medical evidence, the Tribunal had regard to the four IHMS reports[43] made by mental health nurses and a psychiatrist.[44]
[43] Supplementary documents (S1-S56), S51, S52, S53 and S54, pages 642-647.
[44] S54, pages 646-647.
While there is no explicit connection with the above reports, the Tribunal also notes the report prepared by Phillipa Quinlan of the Queensland Director of Public Prosecutions’ office dated 19 July 2019[45] which suggests that Ms Quinlan thought that CDHQ should be referred to The Queensland Program of Assistance to Survivors of Torture and Trauma, although CDHQ is also recorded as being resistant to this suggestion.
[45] S7, page 15.
Information provided by the Department of Home Affairs under the Freedom of Information Act 1982

The Tribunal noted the statistics contained in this information, tendered into evidence as Exhibit 8 and reflected upon these as part of its consideration of this matter.
THE TRIBUNAL’S ASSESSMENT OF THE EVIDENCE
The Tribunal found CDHQ’s oral evidence to be self-aware. However, at times it was unclear whether – due to technology issues or other reasons – whether CDHQ understood the questions put to him until they were simplified and asked again. Quoting Ms Frankel:
“the applicant has not been the most reliable witness in these proceedings. Has provided some inconsistent and unreliable evidence in respect of his offending, his knowledge of his offending, and the conduct he was engaging in as well as the penalties and conditions imposed on him.”[46]
[46] Transcript, page 56, lines 29-33.
While CDHQ answered certain questions in a self-interested manner, downplaying his serious offending, overall his evidence appeared to demonstrate both minimal evasion and also a degree of inconsistency.
The Tribunal will now consider the oral testimony, together with the documentary evidence and both parties’ submissions against the Direction’s requirements to address the key issues in this matter.
PRIMARY CONSIDERATIONS
Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct
When considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind that the Australian Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.
Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens with the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
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.
Tribunal consideration: The nature and seriousness of CDHQ’s conduct
Paragraph 8.1.1(1)
This paragraph states that, in considering the nature and seriousness of the non-citizen’s ‘criminal offending or other conduct to date’, decision-makers ‘must have regard to the following’:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)   violent and/or sexual crimes;
(ii)     crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)   acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)   causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)     crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197 A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
(h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Tribunal has considered both parties’ respective submissions about Paragraph 8.1.1 of the Direction.
In essence:
(a)The Respondent contends that CDHQ’s offending conduct, when viewed in totality, is serious.[47] The Respondent describes both CDHQ’s past conduct[48] and his criminal offending[49] as very serious. The Respondent observes that alcohol has been involved in a number of CDHQ’s offences,[50] that CDHQ provided no evidence to suggest that he has rehabilitated himself in terms of alcohol abuse,[51] that CDHQ is a frequent offender[52] and has also failed to obey court orders[53] and that CDHQ has also been convicted of possessing drugs.[54]
(b)Based on a reading of both his statements and his oral testimony, the Tribunal has formed the view that – while never using the word ‘serious’ – CDHQ’s efforts at downplaying his offending or blaming it on alcohol, the traumas he allegedly suffered in South Sudan as a refugee and his allegations of childhood sexual assault indicate that he is arguing that his offending is not as serious as the Respondent contends.
(c)This view is supported by CDHQ’s Statement of Facts, Issues and Contentions (SFIC) dated 27 March 2023 prepared under a limited engagement by the Asylum Seekers Resource Centre.[55] The SFIC contends that CDHQ was addicted to alcohol during the period of his offending and that he used alcohol to deal with and escape traumatic memories from his time in South Sudan.
[47] Respondent’s SFIC, paragraph [22].
[48] Respondent’s SFIC, paragraph [23].
[49] Respondent’s SFIC, paragraphs [24] & [25].
[50] Respondent’s SFIC, paragraph [26].
[51] Op Cit.
[52] Respondent’s SFIC, paragraph [28].
[53] Op Cit.
[54] Respondent’s SFIC, paragraph [27].
[55] Exhibit 5.
Paragraphs 8.1.1(1)(a)(i) 8.1.1(1)(a)(ii) and 8.1.1(1)(a)(iii)
These paragraphs require the Tribunal, when considering this matter, to have regard to, and acknowledge that, violent and/or sexual crimes, crimes of a violent nature against women and acts of family violence are viewed very seriously.
The Tribunal concludes, based on both CDHQ’s oral testimony, his offending history and the Queensland Police Service reports contained in the G Documents, that CDHQ has committed violent crimes and acts of family violence, and may have committed crimes of a violent nature against women.
The Tribunal considers that this paragraph carries strong weight in favour of affirming the delegate’s decision not to revoke the cancellation of CDHQ’s visa.
Paragraph 8.1.1(1)(b)(i)
This paragraph is not relevant as CDHQ has not committed any offences involving causing a person to enter into or to otherwise become a party to a forced marriage. There is no reference in the material to any formal conviction to such offending nor is there any reference to such conduct in an independent and/or authoritative police narrative or similar document.
Paragraph 8.1.1(1)(b)(ii)
This paragraph is relevant as CDHQ has committed, as his index offence, an offence against government representatives or officials due to the position they hold – in this case, Queensland police officers - in the performance of their duties.
The Tribunal considers that this paragraph carries strong weight in favour of affirming the delegate’s decision not to revoke the cancellation of CDHQ’s visa.
Paragraph 8.1.1(1)(b)(iii)
This paragraph refers to conduct forming “...the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion”. There is no reference in either party’s oral or written submissions propounding or mentioning this component of the Direction. The Tribunal finds that this paragraph is not relevant to its assessment of the nature and seriousness of CDHQ’s conduct.
Paragraph 8.1.1(1)(b)(iv)
This paragraph is enlivened and relevant to the Tribunal’s assessment of the nature and seriousness of CDHQ’s conduct.
On 2 August 2022 CDHQ was charged with damaging Commonwealth property – an

air - conditioning unit and a mattress - while in immigration detention.[56]
[56] S 47.
The Tribunal finds that consideration of this paragraph adds weight in favour of affirming the delegate’s decision not to revoke the cancellation of CDHQ’s visa.
Paragraph 8.1.1(1)(c)
In applying this paragraph, the Tribunal is precluded from considering sentences imposed on CDHQ for:
(a)any violent offending that he may have committed against women or children,
(b)acts of family violence; and
(c)any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.
CDHQ has received multiple sentences of imprisonment for his offending. He has also received many non-custodial sentences, including fines, probation, rehabilitation orders and good behaviour bonds.[57]
[57] Respondent’s SFIC,[24]-[25].
These sentences and penalties suggest that CDHQ’s offences were viewed by the courts to fall between the median and higher points of the range of sentences when seen through the lens of the seriousness of CDHQ’s offending.
Balanced against this is the point made in the CDHQ’s SFIC that elements of his custodial sentencing result from the quantity of his criminal conduct rather than the seriousness of the conduct.[58] This is supported in his SFIC’s analysis of maximum available sentences set against the sentences CDHQ received.
[58] CDHQ’s SFIC, [37].
The Tribunal considers that this paragraph carries weight in favour of affirming the delegate’s decision not to revoke the cancellation of CDHQ’s visa.
Paragraph 8.1.1(1)(d)
This paragraph addresses two specific aspects of a non-citizen's offending: its frequency and/or whether there is any trend of increasing seriousness.
Frequency
CDHQ’s criminal history,[59] in the absence of specific contentions from either CDHQ or the Respondent, makes clear the relatively high frequency of CDHQ’s offending since arriving in Australia.
[59] G6.
Trend of increasing seriousness
CDHQ’s criminal history[60] shows, despite the acknowledged very serious nature of CDHQ’s index offending, that the pattern of his offending is not necessarily one of increasing seriousness.
[60] Op Cit.
Considering the totality of CDHQ’s criminal history [61] and discerning a trend within this is complex, given CDHQ’s extensive offending history, but it is reasonable to state that this history demonstrates a trend of consistency in terms of bad conduct and offending rather than a trend of increasing seriousness.
[61] Op Cit.
Paragraph 8.1.1(1)(e)
This paragraph addresses the cumulative effect(s) of CDHQ’s repeated offending.
The cumulative effects of CDHQ’s offending can be characterised as imposing significant externalities and costs on his family and the Australian community and a financial imposition on the policing, judicial and jail systems.
Paragraph 8.1.1(1)(f)
This paragraph is concerned with whether CDHQ has provided false or misleading information to the Minister’s Department, including by not disclosing criminal offending.
In the absence of evidence from CDHQ or the Respondent that enlivens this paragraph, it is not relevant to any assessment of the nature and seriousness of CDHQ’s conduct.
Paragraph 8.1.1(1)(g)
This paragraph involves the issue of whether CDHQ has re-offended since being formally warned about the consequences of further offending in terms of his visa status.
After the Department of Home Affairs revoked his visa cancellation on 3 January 2020, CDHQ continued to offend. On 28 May 2021 CDHQ was convicted of the index offence – Serious assault police officer.
Consequently, this paragraph is enlivened and engaged. The cancellation of his visa and its subsequent revocation had no apparent impact on CDHQ’s offending behaviour. The Tribunal finds that consideration of this paragraph adds weight in favour of affirming the delegate’s decision not to revoke the cancellation of CDHQ’s visa.
Paragraph 8.1.1(1)(h)
This paragraph requires the Tribunal to have regard, where the offence or conduct was committed in another country, to whether that offence or conduct is classified as an offence in Australia.
There is no reference in either party’s oral or written submissions propounding or mentioning this component of the Direction. The Tribunal finds that this paragraph of the Direction is not relevant to any assessment of the nature and seriousness of CDHQ’s conduct.
Tribunal finding: The nature and seriousness of CDHQ’s conduct.
The Tribunal has sought above to apply and consider each of the relevant sub-paragraphs appearing in paragraph 8.1.1(1) of the Direction.
With reference to the relevant and applicable paragraphs referred above, the Tribunal finds that the totality of CDHQ’s unlawful conduct in Australia should be characterised as very serious.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
This aspect of the Direction requires the Tribunal to assess the risk CDHQ poses to the Australian community if he reoffends, taking into consideration the nature of any harm and its probability.
Paragraph 8.1.2(1)
This paragraph states:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2)
This paragraph provides that, in considering the risk to the Australian community, a decision-maker must have regard to the following factors on a cumulative basis:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the non-citizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c) where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
In assessing the risk to the Australian community, the Tribunal has first considered the oral testimony and then the Applicant’s and Respondent’s submissions in relation to paragraph 8.1.2.
The Respondent submits that: [62]
[62] Respondent’s SFIC, paragraphs [35] – [37].
“[35] …. the nature of the harm to the Australian community should the applicant commit similar offending is incredibly serious. Noting the nature of the applicant's past offending which has included, in summary, violent offences, damage to Commonwealth property, drug possession, several stealing offences, serious assault on a police officer, common assault and domestic violence offences, the potential to harm individuals and the Australian community is serious should he engage in such conduct again. Such offending causes substantial harm to the community both in terms of mental and physical impact, as well as a significant financial cost to the community associated with emergency services and law enforcement activities.
[36] The Minister submits that there is also a very real ongoing risk that the applicant will reoffend, taking into account the following considerations:
a.in the sentencing remarks of Judge Rosengren of 8 February 2022, it was recorded that 'You were released on parole on 9th July 2019. You reoffended within nine days of that release on the 18th of July 2019' (G7, 50). Additionally, despite previously having been treated with some leniency by the court having received fines and probation, the applicant was convicted of further offences whilst on periods of bail and even with having served periods of incarceration, the applicant has continued to offend indicating a lack of respect for Australian laws. These actions demonstrate that any leniency or orders imposed by the court were not a deterrent for the applicant, indicating a real risk that the applicant will re-offend if a decision is made to revoke his visa cancellation;
b.in the same sentencing remarks, Judge Rosengren indicated that 'You have a clear drinking problem; and I am told that the trauma that you have been exposed to in your life has not been addressed in any sort of counselling or other treatment' (G7, 51). Further, Magistrate Quinn on 30 June 2019, stated 'You have an alcohol problem, and you have a serious alcohol problem. You were given probation in the hope that that would help you with that problem but that hasn't worked. You keep drinking, and you keep committing offences' (G10, 65). In this regard, the applicant has not provided any evidence of rehabilitation courses or programs he has undertaken to address his behaviours and addiction, which may otherwise demonstrate that there is a decrease in his risk of reoffending;
c.the applicant has continued to offend whilst in immigration detention, for which he has received convictions. Incident reports and bench charge sheets for example, indicate the applicant has damaged commonwealth property on a number of occasions (G23, 139; S9, 17; S47, 303); and
d.the applicant has not provided any evidence that he has been engaging with or seeking support in relation to his mental health, or to address his past trauma and alcohol issues, especially in circumstances where he has been under the influence of alcohol for most of his offending (G11, 68). Evidence before the Tribunal indicates that on 17 July 2019, the applicant was hesitant to engage with any intervention services and advice to parole board reports indicating the same (S33, 96-97). Further, the applicant has previously been subject to bail conditions which prohibited him from consuming alcohol or consuming, inhaling or administering an illicit drug or other substance, and breached such conditions (S23, 79; S26, 85). Additionally, Australia's National Drug Strategy 2017 to 2026 at page 4, outlines the multifaceted nature of the harm presented by alcohol use, illustrating that the social harms from alcohol (directly and/or indirectly) on all Australian communities, families and individuals can include relevantly, violence and other crimes, engagement with the criminal justice system, and contribution to domestic and family violence;
e.in a risk of re-offending assessment conducted on 31 May 2021, the applicant had a total score of 20 out of 22, with 22 being the highest risk of re-offending (S41, 117), being an increase of 11 to his score since a previous assessment on 19 June 2018 (S43, 122). In the absence of any evidence of rehabilitation to address the applicant's behaviours and addictions, the Minister contends that this evidence demonstrates the applicant's risk of re-offending remains high; and
f.the applicant has not identified any protective factors in the community.
[37] The Minister contends that the above demonstrate that the applicant's past conduct was serious and there is a very real risk of the applicant re-offending. For these reasons, the Minister contends that the protection of the Australian community weighs heavily against revocation of the cancellation decision.”

CDHQ’s SFIC contends:
a.The nature of harm to individuals or the Australian community is likely to be psychological and financial harm, with a prospect of limited physical harm.
b.The ‘likelihood of occurrence’ of CDHQ re-offending is minimised by:
i.CDHQ being older and more mature.
ii.CDHQ having abstained from alcohol and allegedly severing his reliance on it.
iii.CDHQ having sought out to engage in support and behavioural change programs in detention, albeit constrained by lack of the availability of such programs in prison and in immigration detention.
iv.CDHQ takes responsibility for his crimes and has demonstrated remorse for his offending.
v.Imprisonment in immigration detention has had a beneficial effect on CDHQ and he is highly motivated to avoid any return to detention.
vi.The threat of removal to South Sudan has had a salutary effect.
vii.There are support mechanisms in place to assist CDHQ in the community including his family, Medicare and other Commonwealth programs.
The Tribunal’s Consideration: The nature of the harm to individuals or the Australian community were CDHQ to engage in further criminal or other serious conduct.
CDHQ’s history of criminal conduct has imposed significant costs on the Australian community in terms of the investigative, judicial, and corrective resources required to address the results of his offending.
His criminal record indicates that if he is back in the community, there is a strong likelihood based on his past behaviour that he will drink alcohol. In turn, this drinking behaviour creates the likelihood that he will re-offend.
The dismaying prospect of the nature of the potential harm to the Australian community, if CDHQ was to re-offend in the manner of his prior offending, is clear to the Tribunal.
The Tribunal notes that, in terms of support or protective factors, it can draw on both submissions. It appears from their statements that CDHQ’s family is at least considering some level of support or offering a protective mechanism against alcohol. The Tribunal, in light of CDHQ’s consistent refusal to engage with support services beyond basic living requirements, considers it unlikely that CDHQ will avail himself of the support mechanisms suggested by his SFIC.
The Tribunal’s Finding: The nature of the harm to individuals or the Australian community were CDHQ to engage in further criminal or other serious conduct.
The potential harm arising from a repeat of CDHQ.’s conduct encompasses a broad range of physical, psychological, financial, and societal consequences.
Further criminal conduct of the categories CDHQ has previously engaged in would result in material physical, psychological and financial harm to the Australian community.
The Tribunal’s Consideration: the likelihood of the non-citizen engaging in further criminal or other serious conduct.
The Tribunal has holistically considered the totality of the evidence addressing the likelihood of CDHQ engaging in further criminal or serious conduct.
The issues surrounding the consideration of risk under Section 501(6)(d) of the Act, from which paragraphs 8.1.2(1) and (2) are drawn, have been extensively considered by the Tribunal and superior courts.[63]
[63] See, for example, Rahman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 888 (20 April 2020); QKVH and Minister for Home Affairs [2020] AATA 4431 (QKVH 2020); Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019); Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153.
The Full Court of the Federal Court in Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187, 194 stated that the reference to ‘criminal conduct’ is:
“…not concerned with whether the conduct has had some temporal result, such as the incurring of a conviction, but with the light that the conduct throws on the actor’s character. Of course, in the absence of a prosecution and conviction, satisfaction that criminal conduct has occurred will not be attained on slight material.”
The clear legislative intention is that the threshold is whether there is ‘a’ risk.[64]
The Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) specifically removed the word ‘significant’ from s 501(6)(d) leaving it as ‘a’ risk.[65]
On this occasion the Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Act 2014 stated (at [46]):
“The purpose of this amendment is to clarify the threshold of risk that a decision maker can accept before making a finding that the person does not pass the character test in relation to paragraph 501(6)(d) of the Migration Act. The intention is that the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk.”
[64] See the discussion in GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019) at [48]–[52].
[65] See the discussion in Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970 at [27].
In Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 (Sabharwal (FC)), the Full Court of the Federal Court (Perram, Murphy and Lee JJ) stated at [2]:
“… Section 501(6)(d)(i) provides that a person does not pass the character test if
“in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would ... engage in criminal conduct in Australia”. The section requires an evaluative judgment by the decision-maker, in the present case the Minister personally, as to whether the decision-maker is satisfied that there is such “a risk.” Then, if the decision-maker is so satisfied, the decision-maker has a discretion to refuse to grant a visa to the person.”
In Sabharwal (FC) the Full Court noted that the Minister said he ‘could not rule out the possibility of further offending by Mr Sabharwal.’[66] The Full Court, citing Justice Moshinsky’s decision in Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588, 608 [62], found that the Minister’s statement was, in substance, also a finding that there was a risk of CDHQ re-offending.
[66] Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160, [58] (“Sabharwal (FC)”).
In Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 (Guo) Chief Justice Brennan, Justices Dawson, Toohey, Gaudron, McHugh and Gummow of the High Court observed as follows (at 574-575): [67]
“The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.”
(Added emphasis.)
[67] QKVH and the Minister for Home Affairs (“QKVH 2020”) [2020] AATA 4431 (2 November 2020) at [5].
Justice Mortimer explored the notion of risk and its nexus to future possibilities in Murphy v Minister for Home Affairs [2018] FCA 1924, [37], where Her Honour noted:[68]
“That is, part of the Tribunal’s task was to decide not only whether CDHQ might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be “tolerated”.”

112.Consequently, by applying the reasoning in Sabharwal FC and Guo, there is “a risk” or a likelihood of CDHQ engaging in further criminal or serious conduct.
[68] Murphy v Minister for Home Affairs [2018] FCA 1924, [37].

The Tribunal does not have the benefit of an expert risk assessment to assist its consideration of this issue aside from the Queensland Corrective Services re-offending risk assessments referenced by the Respondent.
A consideration of the risk or likelihood of CDHQ engaging in further criminal or serious conduct should encompass the factors that facilitate the risk or, conversely, hinder or retard the risk. Doing this enables the Tribunal to consider Justice Mortimer’s question as to “whether the risk should be “tolerated”.”
The main driver and risk factor of CDHQ’s offending is alcohol abuse.
CDHQ appears to recognise the risk that his addiction to alcohol creates.
CDHQ appears to have only a few static risk management factors - his age and his family – assisting him and no dynamic risk management factors.
The Tribunal’s finding: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Tribunal finds that the risk to the Australian community should CDHQ commit further offences or engage in serious conduct both clearly exists and is a material risk.
Conclusion: Primary consideration 1: Protection of the Australian community
This consideration weighs heavily in favour of affirming the delegate’s decision to not revoke the cancellation of CDHQ’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN.
Paragraph 8.2 of the Direction states:
1The 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 (see paragraph (3) below).
2This consideration is relevant in circumstances where:
(a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
3In considering the seriousness of the family violence engaged in by the noncitizen, the following factors must be considered where relevant:
(a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
(b)the cumulative effect of repeated acts of family violence;
(c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
(i)   the extent to which the person accepts responsibility for their family violence related conduct;
(ii)     the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
(iii)   efforts to address factors which contributed to their conduct; and
(d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the noncitizen’s migration status, should the non-citizen engage in further acts of family violence.
Paragraph 4 of the Direction contains this definition:
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, or his or her liberty.
The Tribunal’s Consideration
The Respondent submitted that:[69]
“[39] The applicant's offending involved acts of family violence (paragraph 8.2(2)(a) of Direction 99), with evidence indicating that his mother and ex-partner are victims of his offending. The Minister contends that the applicant's ex-partner and mother would meet the definition of member of the person's family set out at paragraph 4(1) of Direction 99, being people who have or have had an intimate personal relationship with the applicant. In the circumstances, the Minister contends that the applicant's family violence offences involved a trend of increasing seriousness (paragraph 8.2(3)(a) of Direction 99) and that he has provided minimal evidence of rehabilitation efforts (paragraph of 8.2(3)(c) of Direction 99). We also consider the applicant has continued to re-offend since being formally warned, or since otherwise being made aware by a court of the consequences of family violence (paragraph 8.2(3)(d) of Direction 99) (S2, 3; S3, 4; S5, 8; S11, 22, 26). In this regard, in the sentencing remarks of Magistrate Kahlert on 27 June 2018, it was recorded the applicant's 'Breach of domestic violence order is concerning because this is the fourth time you have been before the Court in relation to a breach of domestic violence and I am told that two of the three previous ones also involve your mother. Your mother must be very frightened, it is not your role as a son to treat your mother like that' (G11, 70). Further, the applicant continued to breach apprehended violence orders against him whilst incarcerated (G12, 72).”
[69] Respondent’s SFIC, paragraph [39].
CDHQ’s SFIC concedes that he has committed acts of family violence but emphasises CDHQ’s alleged rehabilitation (for which no evidence was provided).
The Tribunal considers that paragraph 8.2 is enlivened.
Conclusion: Primary consideration 2: Family violence committed by the non-citizen.
This consideration weighs in favour of affirming the delegate’s decision to not revoke the cancellation of CDHQ’s visa.
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA.
Paragraph 8.3 of the Direction provides:
(1)Decision-makers 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. In doing so, decision-makers must have regard to:
a)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.
The Respondent’s contentions on this point are concisely stated in the Respondent’s SFIC:[70]
[42] “The applicant has submitted that his immediate family all reside in Australia, and that he has no connection to anyone or anything in South Sudan (G16, 86). The Minister understands the applicant's mother, siblings, uncle and grandmother reside in Australia; however, no evidence has been received from his family members as to the nature of their relationship with the applicant. Further, it is noted several of the domestic violence offences for which the applicant has been convicted appear to have been against family members, particularly his mother.
[43] The applicant has also contended that he is part of the National Basketball League through his membership with the Brisbane Bullets basketball club; however, supporting evidence has not been provided (G17, 99)
[44] In the absence of any evidence and the applicant's relatively short duration of residence in Australia combined with his offending commencing shortly after his arrival, the Minister contends that this consideration should weigh against a decision to revoke the applicant's visa cancellation.”
[70] Respondent’s SFIC, [42]-[44]
CDHQ's SFIC’s contentions on this point can be summarised as follows:
a)CDHQ’s surviving family are in Australia (with the exception of a blind uncle in South Sudan) and are either Australian permanent residents or citizens.
b)CDHQ is reliant on trip treatment and social support from the Australian health system in relation to his alcohol addiction and potentially his mental health.
c)While there is a Domestic Violence Order in place in relation to his family CDHQ's mother understands that this does not prohibit communication or contact and that there is a genuine intention for a reconciliation between the family and CDHQ in future.
The Tribunal’s Consideration
The Tribunal is required to give more weight to a non-citizen’s ties to their children or children who are Australian citizens, Australian permanent residents or people who have a right to remain in Australia indefinitely, such as occurs in this matter.
The Tribunal must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community, have regard to the length of time they have resided in the Australian community, whether they have been resident here during their formative years, whether they have contributed positively to the Australian community and correspondingly less weight should be given where they were not resident in Australia during their formative years or began offending soon after arriving in Australia.

Applying Paragraph 9.1 (relevantly, Sub-Paragraphs 9.1(1), 9.1.2(1) and 9.1.2(3)), the following points are relevant to the Tribunal’s consideration on this element of the Direction:
a.CDHQ, in his SFIC, has claimed that Australia’s non-refoulement obligations are engaged[76] under Australian domestic law.[77] These claims objectively indicate the potential for Australia’s non-refoulement obligations to be engaged for the purposes of this matter.
b.Acknowledging Plaintiff M1/2021,[78] the Tribunal should consider CDHQ's claims and ‘read, identify, understand and evaluate’ these claims. In doing so, it should also consider whether the claims or the alleged facts underpinning the claims establish another reason why the visa cancellation decision should be revoked and whether they support any other matter relevant to the Tribunal’s exercise of the discretion under the Direction.
c.One potential outcome of this consideration, as described in Plaintiff M1/2021, is to defer assessment of whether CDHQ is owed non-refoulement obligations pending his application for a protection visa.
d.However, the Tribunal notes that there is no evidence before it to suggest that CDHQ has applied or is applying for a protection visa. This lacuna, in conjunction with the statistical information relating to the rate of granting of protection visas since 2015 produced by the Department of Home Affairs under a freedom of information request and included with CDHQ’s SFIC, has also been considered by the Tribunal.
e.To the Tribunal, CDHQ’s demeanour, interactions and self-represented performance instead give rise to the view that it is more likely than not that he will fail to apply for a protection visa.
[76] Applicant’s SFIC and G17, page 100.
[77] Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417; [2022] HCA 1, [30] (Plaintiff M1/2021); Respondent SFIC [53].
[78] Op cit, [24]-[25] and [30].
CDHQ’s Claims
Following from the above, the Tribunal has read, identified and evaluated CDHQ’s non-refoulement obligation claims in order to understand them. In doing this, the Tribunal has had recourse to the secondary materials referenced in CDHQ’s SFIC as noted above.
The factors that are the foundations of CDHQ’s claims are summarised in the Applicant’s SFIC[79] as:
[79] Applicant’s SFIC [121].
a.His Dinka ethnicity;
b.His imputed political opinion on account of his Dinka ethnicity;
c.His membership of particular social groups:
viii.Persons with an alcohol addiction;
ix.Persons suffering mental ill-health;
x.Men at risk of forcible recruitment by armed groups;
xi.Persons perceived to be wealthy in South Sudan;
xii.Persons perceived to be foreign;
xiii.Returnees from Australia.
Considering each of these in turn (except where expressly conflated for the purposes of evaluation):
a.    Dinka Ethnicity – race and imputed political opinion: The BTI 2020 Country Report South Sudan indicates that the ethnic violence described in the 2016 DFAT Report[80] continues to occur along tribal lines, indicating that Dinkas can face discrimination and violence in certain regions of South Sudan. The February 2022 Amnesty International report ’10 Human Rights Priorities for South Sudan’ states that according to the United Nations this violence declined in 2021.
b.   Alcohol Addition: While some of the evidence suggests a strong cultural bias against alcohol consumption and addiction, this is not well-established by the secondary materials.
c.     Mental Ill-Health: As set out in CDHQ’s SFIC and supported by the February 2022 Amnesty International report ’10 Human Rights Priorities for South Sudan’, South Sudan’s health system is weak, fragmented and underfunded by African standards, especially in terms of mental health and psychosocial support services.
d.    Forcible Recruitment: It is unclear from the secondary sources cited in CDHQ’s SFIC whether this remains a current issue in South Sudan.
e.    Wealthy, Foreign and Australian Returnee: It is unclear from the secondary sources cited in CDHQ’s SFIC whether these are significant current issues in South Sudan.
[80] Exhibit 7.
CDHQ’s ability to apply for a protection visa.
It is often the case that a non-citizen whose visa has been cancelled because of criminal offending is may have difficulties to obtain a protection visa because they may be considered to be a danger to the community, having been convicted by final judgment of a serious crime.
In that situation, if the Tribunal applies some degree of analysis to the non-citizen’s protection claims and finds that there is probably some substance to them, or that the non-citizen would face a risk of harm or hardship that does not entitle them to protection, the Tribunal may allocate some weight in favour of revocation of the cancellation of the visa. This allocation of weight could be what tips the balance in favour of revocation when all of the relevant considerations are weighed.
On the other hand, should the Tribunal decline to assess the non-citizen’s protection claims because they can apply for a protection visa, presumably no weight would be allocated in favour of revocation. The non-citizen’s prospective action of applying for a protection visa cannot be given weight because there is no weighing attribution in that process.
A non-citizen must establish that they are owed protection and that they are not disqualified by any of the exclusions. If an exclusion applies, it is not balanced against their protection claims and an applicant is simply disqualified.
Accordingly, where a non-citizen is unlikely to obtain a protection visa, the Tribunal should engage with any protection claims that are made or arise on the evidence with a view to allocating appropriate weight to this Other Consideration to make the correct or preferable decision. This is what the Tribunal has done in this matter and has also considered that a reasonably possible outcome of a decision to affirm the delegate’s decision to cancel CDHQ’s visa would be indefinite immigration detention for CDHQ.
The Tribunal accepts that the South Sudan security situation is extremely unstable. The Tribunal accepts that CDHQ would face the risk of harm and hardship due to generalised violence and instability there, and consequently finds substantive weight in favour of setting aside of the delegate’s decision to cancel CDHQ’s visa.
Tribunal Finding: Other Consideration (a): Legal consequences of the decision.
The evidence submitted that addresses ethnicity issues confronting returnees to South Sudan indicates that CDHQ would be at some measure of consequential risk of harm, either as the result of the arbitrary infliction of violence on him or because of his enforced recruitment into either militia or government forces.
A similar finding could be made regarding CDHQ’s mental health symptomatology, which would perhaps be more a result of the dearth of mental health services in South Sudan, but this is better left to consideration under Other Consideration (b).
The Tribunal is satisfied that this Other Consideration (a) attracts a substantive and significant level of weight in favour of setting aside the delegate’s decision to cancel CDHQ’s visa.
Other Consideration (b): Extent of impediments if removed.
Clause 9.2(1) of the Direction provides:
(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)      The non-citizen’s age and health;
b)      Whether there are substantial language or cultural barriers; and
c)      Any social, medical and/or economic support available to them in that country.
Initial Comments
Paragraph [185] of the Applicant’s SFIC opens with:
“We submit that the extend of impediments that [CDHQ] would face on return to South Sudan would be substantial, extraordinary and insurmountable. These impediments largely reflect the risk of harm that CDHQ will face in South Sudan as discussed above. We therefore refer to and rely on the country information provided under non-refoulment (sic) claims above.”
The Tribunal notes that while the information cited in CDHQ’s SFIC is relevant to this Other Consideration, it will seek to avoid any conflation between Other Consideration (a) and Other Consideration (b). The Direction works by isolating specific elements for analysis, consideration and subsequent weighing.
Other Consideration (b), in contrast to Other Consideration (a), focuses on CDHQ’s circumstances. External information about general social, economic and healthcare is useful, but not decisive, in addressing Other Consideration (b).
The Applicant’s written submissions
CDHQ’s SFIC concisely frames the issues attendant to this consideration in paragraph 186:
“[CDHQ] would return to South Sudan as a man with an alcohol addiction susceptible to relapse without adequate supports, to a country he left when he was 15 and where he experienced significant trauma. It will likely exacerbate his mental health conditions and trigger a decline in his mental health and set back his rehabilitation. Country information provided with respect to [CDHQ]’s non-refoulement claims above evidence the inadequacy of South Sudan’s mental health care services. In such circumstances, [CDHQ] would require the provision of additional mental health support and rehabilitation services which are not available in South Sudan. The inability to access appropriate healthcare would prevent [CDHQ] from establishing himself and surviving in South Sudan. He will be unable to obtain work. He faces death, loss of liberty, torture, violence, psychological harm, lack of treatment, severe discrimination, and an inability to subsist.”
The Respondent’s written submissions
The Respondent made the following submissions on this point:[81]
“[61] The Minister contends the applicant will be able to establish himself and maintain basic living standards in South Sudan (paragraph 9.2(1) of Direction 99). The applicant is relatively young and healthy (paragraph 9.2(1)(a) of Direction 99). He will not face substantial language or cultural barriers (paragraph 9.2(1)(b) of Direction 99).
[62] While it can be accepted that security, political and economic situation in South Sudan will present significant challenges for the applicant, he will have access to the same level of social and economic support as what is generally available to other citizens of South Sudan. The Minister accepts that the applicant may have limited access to mental health facilities or treatment (paragraph 9.2(1)(c) of Direction 99).”
[81] Respondent’s SFIC, paragraphs [61]-[62].
Tribunal’s Consideration
This aspect of the Direction requires the Tribunal to assess and consider the extent of any impediments that CDHQ, if removed from Australia to South Sudan, will face in establishing himself and maintaining basic living standards (in the context of what is generally available to other Italian citizens), taking the specific factors below into account.
Sub-paragraph 9.2(1)(a) – the non-citizen’s age and health
CDHQ is 24 years old.
The evidence indicates that CDHQ has a bullet wound to one of his feet and likely suffers from the effects of the chronic trauma he suffered as a child in South Sudan.
The evidence tendered to the Tribunal suggests that CDHQ may have underlying mental health issues potentially arising from traumatic stress and experiences he suffered in South Sudan. The main source here is the IHMS psychiatrist’s report.[82]
[82] S54.
Sub-paragraph 9.2(1)(b) – any substantial language or cultural barriers
The Tribunal considers that CDHQ, based on his oral testimony, would face few, if any linguistic difficulties if he returned to South Sudan.
However, the Tribunal also considers that CDHQ will face significant and substantial cultural barriers inasmuch as he would be returning to South Sudan from a life recently set amongst Australian culture, having never lived as an adult in South Sudan and after an absence of six years.
Sub-paragraph 9.2(1)(c) - any social, medical and/or economic support available to them in that country
The Tribunal has reviewed the country information tendered in evidence and, given that the DFAT report appears to date from 2016, also looked at additional and more recent authoritative sources.[83]
[83]
The Tribunal considers that, in terms of the Respondent’s submission, CDHQ would at best have access to same level of social and economic support as other South Sudanese citizens and more likely less as he appears to lack a family network or support structure in South Sudan in addition to a lack of work experience and no formal qualifications. The greater concern is with the infrastructural and systemic paucities of South Sudan’s medical and mental health services and the resulting impediment these would impose on CDHQ to the extent he suffers from mental health issues.
Tribunal’s analysis and consideration
The Tribunal has considered the extent of any impediments that CDHQ, if removed from Australia to South Sudan, will face in establishing himself and maintaining basic living standards, taking into account the specific factors set out in paragraph 9.2(1).
Tribunal finding: Other Consideration (b) Extent of impediments if removed.
Having regard to the analysis referrable to each of the three sub-paragraph components of this other consideration (b), the Tribunal finds that CDHQ would probably face substantial and sustained emotional, practical, financial and medical hardship if he was returned to South Sudan.
This hardship would be aggravated by the absence of significant relationships with anyone in South Sudan and the likely difficulties he would face in re-establishing himself there.
This consideration carries heavy and substantive weight in favour of setting aside of the delegate’s decision under review.
Other Consideration (c): Impact on victims
Clause 9.3(1) of the Direction states:
Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
Tribunal finding: Other Consideration (c): Impact on victims.
The Tribunal has considered the evidence in relation to this paragraph – in particular, the statements of CDHQ’s mother,[84] who was a victim of his family violence and his uncle.[85] The Tribunal characterises their statements as demonstrating high degrees of forgiveness and understanding, as well as insight about alcohol being the driver for CDHQ’s offending.
[84] Exhibit 11.
[85] Exhibit 12.
Based on the abovementioned statements, the Tribunal finds that this Other Consideration (c) provides limited but meaningful weight in favour of setting aside the delegate’s decision to cancel CDHQ’s visa.
Other consideration (d) Impact on Australian business interests if CDHQ cannot remain here.
Paragraph 9.4 (1) compels an assessment of CDHQ’s employment links to Australia with reference to any impact his removal may have on, “Australian business interests”.
There is no evidence of CDHQ making any positive contributions to the community through his employment history or community involvement.
Tribunal finding: Other Consideration (d): the impact on Australian business interests if CDHQ cannot remain here.
The Tribunal finds that paragraph 9.4 is not relevant and has neutral weight.
FINDINGS: OTHER CONSIDERATIONS
The Tribunal now summarises the respective weights it has allocated to each of the Other Considerations (specified in the Direction) relevant to the present matter:
Other Consideration (a) – legal consequences of the decision:
·This consideration attracts a substantive level of weight in favour of setting aside the delegate’s decision under review.
Other Consideration (b) - extent of impediments if removed:
·This consideration carries heavy and substantive weight in favour of setting aside the delegate’s decision under review.
Other Consideration (c) - impact on victims:
·This consideration provides meaningful weight in favour of setting aside the delegate’s decision under review.
Other Consideration (d) – Impacts on Australian business interests :
·This consideration is not relevant and carries a neutral weight.
ADDITIONAL CONSIDERATIONS
The Direction does not limit the other considerations to those listed in the Direction (paragraph 9(1) of the Direction).[86]
[86] Per Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471.
There are no additional considerations before the Tribunal.
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, CDHQ does not pass the character test.
In determining whether there is ‘another reason’ to revoke the cancellation decision, the Tribunal has applied the Direction to this matter’s specific circumstances.
The Tribunal find as follows:
Primary Consideration 1 - protection of the Australian community from criminal or other serious conduct:
·This consideration weighs heavily against revocation of the delegate’s decision to cancel CDHQ’s visa.
Primary Consideration 2 - whether the conduct engaged in constituted family violence:
·This consideration weighs against revocation of the delegate’s decision to cancel CDHQ’s visa.
Primary Consideration 3 - the strength, nature and duration of ties to Australia:
·This consideration carries some weight against revocation of the delegate’s decision to cancel CDHQ’s visa.
Primary Consideration 4 - best interests of minor children in Australia affected by the decision :
·This consideration carries some weight in favour of setting aside the delegate’s decision to cancel CDHQ’s visa.
Primary Consideration 5 – expectations of the Australian Community:
·This consideration weighs significantly against revocation of the delegate’s decision to cancel CDHQ’s visa.
The Tribunal has also set out above the weight attributable to the other considerations and the additional consideration.
A comprehensive, holistic and integrated view of the primary considerations, the other considerations in the Direction, together with the additional consideration favours on balance setting aside the delegate’s decision to not revoke the cancellation of CDHQ’s visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review and substitutes a decision revoking the original visa cancellation.

I certify that the preceding two hundred and twenty-eight paragraphs (228) paragraphs are a true copy of the reasons for the decision herein of Member D. Cosgrave

.........[SGD]..............
Associate
Dated: 12 May 2023

Date of hearing: 3 & 4 April 2023

The Applicant:
Self-represented

Solicitor for the Respondent: Ms Shelli Frankel (Minter Ellison Lawyers)
ANNEXURE A – EXHIBIT REGISTER

Exhibit Number

Description of Exhibit

Party

Date of Document

Filing Date

1

G Documents

(bookmarked G1-G27, paged 1-213)

R

Various

7 February 2023

2

Supplementary Documents (bookmarked S1-S56, paged 1-672)

R

Various

21 March 2023

3

Respondent’s Statement of Facts, Issues and Contentions (paged 1-13)

R

21 March 2023

21 March 2023

4

Statement by the Applicant

A

Undated

27 March 2023

5

Applicant’s Statement of Facts Issues and Contentions prepared by Asylum Seeker Resource Centre (paged 1-47)

A

27 March 2023

27 March 2023

6

Applicant’s Statement of Facts

A

Undated

27 March 2023

7

Country Information- South Sudan

A

Various

27 March 2023

8

Information released by Department of Home Affairs under FOI request

A

Undated

27 March 2023

9

Reports relating to condition and impact of immigration detention

A

Various

27 March 2023

10

Signed statement from Ms AB (Applicant’s younger sister)

A

29 March 2023

29 March 2023

11

Signed statement from Ms AA (Applicant’s mother)

A

28 March 2023

29 March 2023

12

Singed statement from Mr MA (Applicant’s uncle)

A

29 March 2023

29 March 2023

Exhibit Number	Description of Exhibit	Party	Date of Document	Filing Date
1	G Documents (bookmarked G1-G27, paged 1-213)	R	Various	7 February 2023
2	Supplementary Documents (bookmarked S1-S56, paged 1-672)	R	Various	21 March 2023
3	Respondent’s Statement of Facts, Issues and Contentions (paged 1-13)	R	21 March 2023	21 March 2023
4	Statement by the Applicant	A	Undated	27 March 2023
5	Applicant’s Statement of Facts Issues and Contentions prepared by Asylum Seeker Resource Centre (paged 1-47)	A	27 March 2023	27 March 2023
6	Applicant’s Statement of Facts	A	Undated	27 March 2023
7	Country Information- South Sudan	A	Various	27 March 2023
8	Information released by Department of Home Affairs under FOI request	A	Undated	27 March 2023
9	Reports relating to condition and impact of immigration detention	A	Various	27 March 2023
10	Signed statement from Ms AB (Applicant’s younger sister)	A	29 March 2023	29 March 2023
11	Signed statement from Ms AA (Applicant’s mother)	A	28 March 2023	29 March 2023
12	Singed statement from Mr MA (Applicant’s uncle)	A	29 March 2023	29 March 2023

ANNEXURE B: SHORT FORM DECISION

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2023/0511

General Division )
Re: CDHQ
Applicant

And: Minister for Immigration, Citizenship and Multicultural Affairs
Respondent
DECISION
TRIBUNAL:              Member D. Cosgrave
DATE:   13 April 2023
PLACE:                    Brisbane
DECISION:Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision made by the delegate of the Respondent dated 17 January 2023 not to revoke the cancellation of the Applicant’s visa and substitutes a decision to revoke the mandatory cancellation of the Applicant’s visa.
The Tribunal will give written reasons for this decision within a reasonable time of the decision.

….......[SGD]................
Member D Cosgrave

[2023] AATA 1191

13 April 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Date of hearing:	3 & 4 April 2023
The Applicant:	Self-represented
Solicitor for the Respondent:	Ms Shelli Frankel (Minter Ellison Lawyers)

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2023/0511
General Division	)