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

CGCM and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4440 (20 December 2022)
Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2022/7978

General Division )
Re: CGCM
Applicant

And: Minister for Immigration, Citizenship and Multicultural Affairs
Respondent
DIRECTION
TRIBUNAL: Deputy President Dr D. Dragovic
DATE OF CORRIGENDUM: 21 December 2022
PLACE: Melbourne

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application.

On the cover page, delete the words "should be granted" and replace with "should not be refused under s 501(1) of the Migration Act 1958".

At paragraph [166], delete the words "should be granted" and replace with "should not be refused under s 501(1) of the Migration Act 1958".

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Deputy President Dr D. Dragovic

Division:GENERAL DIVISION
File Number: 2022/7978
Re:CGCM
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Deputy President Dr D. Dragovic
Date:20 December 2022
Place:Melbourne

Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975 ('AAT Act'), the Tribunal sets aside the reviewable decision dated 15 September 2022 and, in substitution for the decision so set aside, decides that the Applicant's Protection (Class XA) (Subclass 866) visa should be granted.

........................................................................

Deputy President Dr D. Dragovic

Catchwords
MIGRATION – applicant held a global humanitarian (class XB) visa – visa cancelled under s 501(3A) of the Migration Act – applicant applied for protection (class XA) visa – applicant found to be owed protection obligations – found applicant was ineligible for a visa under ss 36(1C) and 36(2C) of the Migration Act – applicant satisfy s 36(1C) - refusal to grant under s 501(1) - does applicant pass character test – if not should discretionary power to cancel visa be exercised – South Sudan – ministerial Direction No. 90 – primary considerations – serious offending – family violence offending – interpretation and application of s 197C(3) and s 197D – weight to be given to impact to victims when victim forgives – decision under review set aside and new decision substituted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
South Sudan Nationality Act 2011 (South Sudan)
Cases
Bale and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 878
Commonwealth of Australia v AJL20 [2021] HCA 21
FYBR v Minister for Home Affairs [2019] FCAFC 185
PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1050
1901883 (Refugee) [2021] AATA 3216 (2 September 2021)
Secondary Materials
Convention Relating to the Status of Refugees, opened for signature on 28 July 1951; 189 UNTS 137 (Entered into force 22 April 1954)
Migration Act 1958 – direction under s 499 – Direction No. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (commenced 15 April 2021)
REASONS FOR DECISION
Deputy President Dr D. Dragovic
20 December 2022
Introduction and background

Arising from s 501K of the Migration Act1958 (‘the Act’), the Tribunal is prohibited from publishing the name of the Applicant in these proceedings for the reasons of the Applicant having applied for a protection visa. He will instead be known by the anonym ‘CGCM’. The identity of other persons or features that might identify him will be anonymised.
CGCM is a 43-year-old male who was born in what was formerly the Republic of Sudan. Following the secession of South Sudan, the Applicant, CGCM, became a citizen of South Sudan according to the South Sudan Nationality Act 2011. He is of the Dinka tribe and Roman Catholic faith. He is also a father of six children who reside in Australia.
The Applicant arrived in Australia on 26 June 2004 at the age of 25 on a Global Special Humanitarian visa and has remained in Australia since. Through the subsequent years, CGCM has had an extended engagement with the Australian visa system.
In summary, the Applicant’s Global Special Humanitarian visa was cancelled on 7 March 2016 under s 501 of the Act. A request to revoke the cancellation was made, and a decision not to revoke the cancellation was determined personally by an Assistant Minister on 19 January 2017. Following an appeal to the Federal Court, orders were made to remit the decision for reconsideration. Subsequently, on 23 November 2018, a delegate of the Minister considered the cancellation of the Applicant’s Global Special Humanitarian visa and decided not to revoke the cancellation. As the decision was made by a delegate of the Minister, the Applicant sought review of the decision in the Administrative Appeals Tribunal (‘Tribunal’); and on 15 February 2019, the Tribunal affirmed the delegate’s decision.
On 16 February 2019, the Applicant applied for a permanent Protection (Class XA) (Subclass 866) visa. A delegate of the Minister determined that the Applicant was a refugee as defined by s 5H(1) of the Act; and therefore he is a person of whom Australia has protection obligations under s 36(2)(a) and (aa) of the Act. Nevertheless, the same delegate then considered s 36(1C) of the Act, which states that:
A criterion for a Protection visa is that the Applicant is not a person whom the Minister considers, on reasonable grounds:
(a) is a danger to Australia’s security or
(b) having been convicted by a final judgement of a particularly serious crime, is a danger to the Australian community.
The Minister’s delegate found that the Applicant’s criminal history was such that he has been ‘convicted by a final judgement of a particularly serious crime and considered to be a danger to the Australian community.’ As such, the visa was refused.
CGCM sought review of this decision by a differently constituted Tribunal, which decided the case on 17 May 2021 and determined that none of CGCM’s offending reached the threshold of ‘a particularly serious crime’; and as such, the matter was remitted for reconsideration.
Upon reconsideration, another delegate of the Minister considered the visa application and refused it on 15 September 2022 under s 501(1) of the Act. The Applicant sought review of that decision in the Tribunal on 27 September 2022. Upon the basis of this appeal, the matter has been constituted to this Tribunal.
The hearing was held at the Melbourne Registry on the 5 and 6 December 2022. The Applicant was represented by Ms Melinda Jackson of Owen Dixon Chambers as counsel for the Applicant; and instructed by Mr Benjamin Goulding of Refugee Legal as a solicitor. The Minister was represented by Mr Christopher Orchard, of Sparke Helmore Lawyers. The Applicant and witnesses were assisted by interpreters in the Dinka and Arabic languages.
As noted, the Applicant’s visa was refused under s 501(1) of the Act, which provides that the Minister may refuse to grant a visa if the visa Applicant does not satisfy the Minister that the person passes the character test.
Under s 501(6)(a) of the Act, a person does not pass the character test if the person has a ‘substantial criminal record’ (as defined by subsection (7)). Subsection (7) of the Act states that a person has a substantial criminal record if, relevant to CGCM, ‘the person has been sentenced to a term of imprisonment of 12 months or more.’
The Tribunal, in this matter, must consider whether the Applicant passes the character test and, if not, then consider whether the decision to refuse the visa should be exercised. Guidance in exercising this discretion is found in Direction No. 90: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA of the Act.
Considerations
Does the Applicant pass the character test?
As noted above, a person does not pass the character test if, among other triggers, the person has a substantial criminal record such that they have been ‘sentenced to a term of imprisonment of 12 months or more.’
The Applicant has been sentenced to 12 months of imprisonment or more on four separate occasions, one of which was reduced on appeal. These are:
(a)30 July 2015: Convicted in the Local Court of NSW of:
(i)Drive motor vehicle during disqualification period – 2^nd offence: 12 months’ imprisonment; and
(ii)Drive with high range PCA – 2^nd offence: 12 months’ imprisonment (to be served concurrently).
(b)25 March 2011: Convicted in the Local Court of NSW of Contravene prohibition/restriction in AVO (Domestic): 16 months’ imprisonment
(c)12 July 2007: Convicted in the Local Court of NSW of Common assault and Destroy or damage property: Concurrent sentence of 12 months reduced on appeal to 10 months.
(d)27 January 2006: Convicted in the Local Court of NSW of Assault occasioning actual bodily harm: 12 months imprisonment
The Applicant did not dispute his record of convictions.
As the Applicant has been sentenced to a term of imprisonment of 12 months or more, and this was not in contention, I find that the Applicant does not pass the character test.
Whether there is another reason why the cancellation should be revoked
Section 501(1) of the Act states that the Minister ‘may’ refuse to grant a visa if the person does not pass the character test. The term ‘may’ establishes a discretionary element.
Under the powers granted to the Minister in s 499 of the Act, the Minister has provided guidance on how decision makers should exercise this discretion in the form of Direction 90 (‘the Direction’).
Section 499(2A) of the Act states that decision makers must comply with any given direction. As such, I now turn my mind to the Direction and whether the visa should be refused.
The Direction has overarching principles, along with primary and other considerations that should be considered, with detailed guidance under each. The primary considerations are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)Whether the conduct engaged in constituted family violence;
(c)The best interests of minor children in Australia; and
(d)Expectations of the Australian community.
The other considerations are:
(a)International non-refoulement obligations;
(b)Extent of impediments if removed;
(c)Impact on victims; and
(d)Links to the Australian community:
(i)Including strength, nature and duration of ties to Australia; and
(ii)Impact on Australian business interests
Informed by the Preliminary guidance in Part 1 of the Direction, I now turn my mind to applying the guidance to exercising the discretion as to whether there is another reason why the cancellation should be revoked as detailed in Part 2 of the Direction.
Primary Consideration 1: Protection of the Australia Community
The Direction instructs decision makers to have ‘particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.’ In addition, the Direction states that decision makers should also give consideration to the nature and seriousness of the conduct and the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (paragraph 8.1.1)
The Applicant has a long record of offending, with 49 entries, including appeals spanning across six pages in the Australian Criminal Intelligence Commission report.
The Applicant’s offending began shortly after arriving in Australia on 26 June 2004 at the age of 25. His first offence was a minor driving offence which was heard in court in February 2005. His first violent offence was a few months later when he was convicted of common assault against his partner, and the contravention of an apprehended domestic violence order, in August 2005. For these offences, he was sentenced to a two-year supervision order along with the attendance of counselling courses. The Tribunal did not have access to the sentencing remarks in the criminal matters heard in 2005, and as such, the details of the offending are unclear.
In 2006, the offending continued with another violation of an apprehended domestic violence order, for which he was convicted on 27 January 2006 and sentenced to imprisonment for six months. In addition, he was convicted of assault occasioning actual bodily harm, for which he received 12 months; contravened apprehended domestic violence order, for which he received four months; common assault, for which he received three months; and a second common assault, for which he received three months. The sentences were to be served concurrently.
In 2007, the Applicant’s offending continued, with him appearing twice before a court; leading to his being convicted of destroy or damage property and sentenced to 12 months imprisonment; common assault, for which he received 12 months; a further destroy or damage property, for which he was sentenced to six months; and another common assault, leading to 10 months imprisonment. The sentences were to be served concurrently. On appeal, the 12 months sentences were reduced to 10 months. The sentencing remarks from one of the court appearances describes the offending as involving alcohol, anger on the part of the Applicant regarding the presence of a cousin in their home, and aggression towards his wife that amounted to punching a wall, striking his wife while she was holding their child, and ripping a phone charger out of the wall socket.
There are no convictions recorded in 2008.
In January 2009, the Applicant was found guilty of several crimes, including intimidating police, resist or hinder police, offensive language, refuse to comply with a direction and destroy/damage property. He was fined for each of these. In March 2009, he was once again before the courts and was found guilty of resist or hinder police officer in the execution of duty and contravening prohibition/restriction in AVO (Domestic) (‘AVO’). The breach of the AVO involved the Applicant pulling a light fitting out of the ceiling where he was living with his wife. For each of these three convictions, the Applicant was sentenced to nine months imprisonment, suspended.
Later, in 2009, the Applicant was before the courts again, having breached a condition on his AVO (Domestic), which in turn triggered the revocation of his earlier suspended sentences. As a result, he was to serve nine months’ imprisonment with three months’ non-parole.
In 2010, the Applicant was once again convicted of a series of criminal convictions, including driving with a high range of Prescribed Concentration of Alcohol (‘PCA’), contravening an AVO and destroy or damage property. He was sentenced to various supervision orders and had his license suspended.
In 2011, the Applicant was sentenced to six months imprisonment after being convicted of destroy or damage property; and 12 months for contravene prohibition/restriction in AVO (Domestic). Upon appeal, the sentences were reduced to one and three months respectively. In a separate appearance at a different court, the Applicant was sentenced to eight months and 16 months, respectively, for destroy or damage property and contravene prohibition/restriction in AVO (Domestic). The violence he perpetrated was the breaking of a window of the house in which his wife was living. The Magistrate in this matter noted the history of the Applicant and the specific circumstances at the time as aggravating factors, namely that he was on conditional release in relation to two bonds, he was the subject of a grant of bail on another matter, the offences occurred at the victim’s home, and children were present. In addition, there was an apprehended violence order against him at the time. The condition of the order was that he not engage in conduct that would intimidate his wife.
In 2013, the Applicant was convicted of driving with a high range of PCA, for which he was fined and had his license disqualified.
In 2015, the Applicant was convicted of a contravention of prohibition/restriction of AVO (Domestic), Drive motor vehicle during a disqualification period – 2^nd offence, and Drive with high range PCA – 2^nd offence. The Applicant was sentenced to a concurrent sentence of 12 months. In another appearance before a court in 2015, he was convicted of Contravene prohibition/restriction in AVO (Domestic) and sentenced to nine months imprisonment. Sentencing remarks show that, in this instance, the breach of the AVO did not involve violence.
In total, the Applicant has spent nearly five years in prison. At the end of the Applicant’s custodial sentence on 29 March 2016, the Applicant was transferred to immigration detention. The Applicant has remained in detention since, amounting to a period of six years and eight months.
Through submissions, Ms Jackson argued that the nature and seriousness of the offending occurred in the context of ‘serious childhood trauma, difficulties assimilating into the Australian community, and alcohol addiction.’[1] She acknowledged the reference in the Direction to crimes of a violent nature against women as being ‘viewed very seriously by the Australian Government and Australian community.’[2] But argued that the discretion available to the member included taking into consideration the severity of the sentence. She noted that the maximum penalty for destroying or damaging property was five years, whereas the most he received was 12 months; and for contravening an apprehended violence order, the maximum is two years, whereas the Applicant’s sentence was for 16 months. While I accept that the sentence for destroying or damaging property is well below the maximum, I note that the 16-month sentence in 2011 given to the Applicant does not fall far short of the maximum two years identified by Ms Jackson.
[1] Applicant’s Statement of Facts, Issues and Contentions dated 14 November 2022 (‘ASFIC’) p 7.
[2] Direction, paragraph 8.1.1(1)(a).
As to whether the offending was escalating in nature, Ms Jackson noted that the Applicant’s most serious domestic violence offence, according to the severity of the sentence imposed, was in 2011, and the subsequent breaches of an AVO were ‘dealt with by a suspended sentence and bonds, suggesting a relatively lower level of seriousness.’
Mr Orchard argued that the nature of the offending was serious, including in 2007 striking his wife in the face while she was holding their newborn child and recovering from a caesarean operation. It was noted in submissions that the Magistrate hearing the case stated, ‘I am more than satisfied of two things, one he is a liar and two he is guilty.’[3] Mr Orchard noted that in 2009 the sentencing judge gave the Applicant a suspended sentence on the basis that he would be given another chance, but only months later he breached the AVO and his suspended sentence was fully restored. In this instance, the breach arose from pulling a light fitting out of the ceiling where his wife was living.
[3] G Documents (‘GD’) p 66.
Regarding the Applicant’s most severe sentence, 16 months in 2011, Mr Orchard noted that the Applicant had damaged a glass window at his wife’s home and breached a domestic violence order. He noted that the sentencing judge described him as a ‘recidivist domestic violence offender’. On appeal, the severity of the conviction was confirmed by the District Court of New South Wales.

Mr Orchard noted the Applicant’s repeat offending and the dismay expressed by sentencing judges. He has committed offences against his wife with his children present; offences that the Direction notes should be viewed very seriously by decision makers. That the Applicant has had repeated custodial sentences further added to Mr Orchard’s claims that the Applicant’s offending should receive a heavy weight against him.
In considering the evidence and arguments put to the Tribunal, it is clear that between 2006 and 2011, the Applicant was a repeat offender, being convicted of domestic violence offences on numerous occasions. Although the severity of the offending did not increase, and the nature of the offending was on the lower end, that it was repeated would have created a great amount of fear in the children and his wife. That he appeared to have no regard for the warnings led to each conviction, consequently earning the Applicant increasing stints of time in prison.
In addition to the violence the Applicant directed towards his wife and, inadvertently, his children, who were present, was his offending that targeted the police and the public.
The Applicant was convicted for various transgressions against police, including resisting arrest, not complying with a direction, failing to comply with requests and intimidating a police officer. The Applicant claimed that he was never violent towards the police in these incidents, although he was found guilty of ‘Intimidate police officer in execution of duty’. For these acts, he was largely fined, other than a suspended sentence of nine months for resisting arrest, which was reinstituted after a breach of his conditions. This is a serious offence that weighs heavily in this consideration.
The Applicant has also had a long history of driving offences that place the public at risk. His first offences were a failure to display an “L” plate and driving unaccompanied in 2005. This resulted in a fine of $100 each. Subsequently, the Applicant has been caught drink driving in 2010, for which he was fined $800 and had his licence disqualified for 18 months; again in 2013, when he was fined $1,500 and had his licence disqualified for two years; and finally, in 2015, when he was convicted and imprisoned for 12 months for driving while drunk and driving while disqualified. There is no evidence before the Tribunal that any of these incidents led to injury or damage. Nevertheless, the Applicant’s behaviour showcases an ongoing disregard for the warnings that have been provided to him.
In considering the nature and seriousness of the conduct, I take into consideration not only the seriousness of individual actions, but the continuing nature of his offending, ranging from 2005 through to 2015. When considered collectively, the Applicant has shown a brazen disregard for the law, for the wellbeing of his family, and for the safety of the community.
It is of great concern that the harshest penalty Australian governments can impose on an individual, such as has been the case with the Applicant, appear to have done nothing to amend his behaviour in the past.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 8.1.2)
When considering the risk to the Australian community, the Direction explains that 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.’ In weighing this consideration, decision-makers must consider the nature of the harm to individuals or the Australian community if the Applicant were to engage in the conduct again, as well as the likelihood of the Applicant engaging in such conduct. In addition, as this is a consideration of a visa refusal, a third consideration is required, and that is whether the risk of harm may be affected by the duration and purpose of stay, the type of visa being applied for, and whether there are ‘strong or compassionate reasons for granting a short stay visa.’
The Applicant’s representative submitted that the Applicant acknowledged that the nature of the harm, in particular to his wife, is severe; and that his driving offences are significant and could be deadly. But with regards to the likelihood of the Applicant reoffending, it was argued that although the Applicant has a long history of offending, the consistent theme throughout is the use of alcohol. It was claimed in written submissions that the Applicant is aware of this and ‘effectively overcome his addiction to it,’ and that ‘The Applicant is now sober.’ It was put to the Tribunal that with the elimination of this risk factor, the likelihood of reoffending was low.
In written submissions by Ms Jackson, these claims of a low likelihood of reoffending were supported by seven arguments which I will address individually:
(a) The Applicant’s insight into the factors that have contributed to his offending. Chief amongst them, his use of alcohol and the efforts that the Applicant has undertaken to address this issue. The Applicant suffered from severe and untreated trauma, and its complications, and relied on alcohol as a coping mechanism.
The Applicant described his childhood as being traumatic. At the hearing and in various submissions to the Department, including his protection visa application, he described his past. He claimed to have witnessed the death of his father and his sister dying of lack of food, and of being a child soldier. The Departmental decision-maker identified numerous inconsistencies in the Applicant’s narration of his past, such that they did not accept his claims and his claimed fears. Instead, the protection finding was made based upon the circumstances in South Sudan at the time, the Applicant having lived in the West, and the risks that would arise of him returning from Australia and not knowing anyone upon his return.
While the Applicant’s past is not directly relevant as this decision is not a review of his protection claims, it is necessary to consider his past claims as it is claimed that the root cause of his violence, triggered by alcoholism, is his past trauma.
The basis of the discrepancies identified by the Minister’s delegate is between the Applicant’s claims for his off-shore Global Humanitarian Visa which allowed him to first travel to Australia and subsequently the claims made in his protection visa application. The delegate noted that no explanation for the inconsistencies was provided. While this is of concern, I note that the Applicant’s claims provided in his protection visa align with the family history summarised by his psychologist from Foundation House. In considering the two versions, namely, the story that he presented in Egypt to the Australian office and the more recent version, I accept the latter for the reasons of the consistency between four years of psychological treatment along with his claims being presented for his protection application. In such circumstances, I accept that the Applicant has had a traumatic past and accept the narration of this provided in one of the Foundation House reports, which I have extracted below:
[CGCM] is a 41-year-old man of Dinka ethnicity from the now disputed Abyei Area on the border between Sudan and South Sudan. He reports his family had a small farm in Abyei, and he is the eldest of a sibship of three children. He describes when he was approximately five years old, the war in Sudan became very prevalent in the Abyei region. During an invasion by the Sudanese military, he reports he witnessed his father being killed and his village burnt. He states he fled with his mother and two younger sisters on foot, and that this journey was very difficult with little food or water, and one of his younger sisters passed away as a result.
He reports that when he was approximately six-years-old, he was taken by force by the Sudanese People’s Liberation Army (SPLA),…. and was ‘raised’ by them until he was 14. He reports that during this time he did not have any contact with any of his own family. [CGCM] states that the days were regimented with school - where he learnt Arabic and about the rights of the South Sudanese people, as well as military training where they learnt about warfare, practising combat using bamboo sticks as guns. He states the smaller boys were nearly all young Dinka children and were involved in assisting around the camp, moving things, or collecting fire wood. He reports he always had enough food and had shelter but that he missed his mother and his family. He reported that during his eight years in the camp he saw dead bodies and the after effects of war, and sometimes would assist in burying people.
He reports he escaped the SPLA when he was approximately 14 years old, just before he would have been required to join the fighting, He states that he knew there were strong consequences for leaving and that he had to do this carefully. He states he had become disillusioned with the entire process as the people they were fighting were also often of Dinka ethnicity, being boys that had also been forcibly taken by their opposition, the Sudanese army. He reports that one day when collecting wood, he fled on foot through the forest, making his way eventually to Khartoum where many of the displaced Dinka communities were residing. He states he reunited with his sister and mother and aunts and settled into a life there.[4]
[4] Applicant’s Tender Bundle (‘ATB’) lodged on 30 November 2022 p 24.
The Applicant said that when he arrived in Australia, he did not understand trauma or mental health. He said that the concept of mental health is not known in Africa. He said that in 2004 there were no Sudanese community groups that could provide support or guide him, so he turned to alcohol. He claims that he was first introduced to professional trauma counselling when in immigration detention on Christmas Island in 2016. He explained at the hearing, how engaging with his past with the assistance of professional counsellors has helped him deal with his trauma and the triggers of his alcohol drinking.
Furthermore, the Applicant claims that for the past nearly seven years in immigration detention and the year prior to that in prison, he has not drunk any alcohol. While it was noted that one of the few incidents the Applicant had marked against his name in detention was the discovery of a homebrew in his room, he explained that it was a shared room and, in some instances, some detainees would place contraband in others’ rooms without their knowledge. He maintained that he did not know about it and had not drunk alcohol.
(b) The Applicant’s participation in various support and therapy programs both while incarcerated and whilst detained, including extensive and consistent participation in trauma counselling with Foundation House.
(c) The Applicant has engaged in consistent and extensive counselling to address is risk factors. The Applicant has, inter alia, learnt how to recognise and overcome triggers, break the addiction cycle, and engaged in long term counselling with Foundation House. The risk to the community is minimised greatly because the Applicant is aware of, and knows how to put in place, strategies to drastically reduce the chance of relapse into alcohol addiction, and has taken steps towards treating his trauma.
The Applicant has participated in extensive psychological and counselling services and attended various courses while in immigration detention. The Applicant stopped seeing the Foundation House psychologist after four years as they said that he no longer needed them. He said that he believes they helped him understand his mental health and, in turn, his past childhood. He said that he had been provided with medication that helped him think clearly.
The Applicant discussed his plans for continuing to access support if he is released; including engaging with African Care, elders from the South Sudanese Community Association, Foundation House and Alcoholics Anonymous (he claims to have spoken to them in the past). He also said that he would continue to take medication upon his release. He said that he doesn’t want to relapse as he is ashamed of his past violence. He said that if he is asked to join friends in drinking, he would move away and associate with others and do other things.
The Applicant’s wife gave evidence regarding a change in the Applicant’s perspectives and behaviour. She talked about how he is now interested in the family and would remind her of upcoming important dates and events. She described how, when she is angry at one of the children, he would calm her down over the phone. She said that while he was drinking, he did not show any interest in the family or care for them. She put this positive change in behaviour down to his participation in counselling while in the detention centre. She said that the counselling and courses had changed him. She does not believe that he will drink alcohol again if released. She said that she would support him by attending counselling with him and would support his need to continue to attend counselling.[5]
[5] GD p 232.
A letter was received from Mr Ring Mayar, President of the South Sudanese Community Association.[6] Relevant to the evidence given in this letter, is that in addition to holding community leadership positions, Mr Mayar holds degrees in criminology and criminal justice and a master’s degree in leadership and management, specialising in policing and security. Mr Mayar expressed his belief that the Applicant has reformed. In addition, he has outlined the efforts that the Association will undertake to support the Applicant, including providing him with a mentor as soon as he is released, to help him engage with the necessary services and activities available to facilitate his re-integration. In addition, he comments that the Association will provide counselling and job search support.
[6] GD p 255.
A letter was received from Mr Emmanuel Kondok, Chairman of the Community of Southern Sudanese and Other Marginalized Areas Association NSW, in which he wrote that he believed that the Applicant ‘has a capacity to rehabilitate and continue contributing to his community if provided the right support’.[7]
(d) The Applicant has spent 6 years and 8 months in detention, as well as several years in criminal custody. This has been a significant learning opportunity for the Applicant, and in particular a substantial deterrent against any future use of alcohol, family violence, or offending in general.
[7] GD p 260.
The Applicant acknowledged his offending and the loss of trust his wife had in him. He said that the counselling and the time in detention have made him realise that he had unsolved mental health challenges. He said that he is now ashamed of his behaviour, describing it at the hearing as a ‘great shame’.
The Applicant described his despondency in detention and his wishes to leave. He said that it had been a difficult time for him. He wrote that ‘what seems like endless uncertainly (sic) and worry about my future has made life very difficult.’[8]
(e) A further deterrent to any future offending is the prospect of indefinite detention. As the Applicant has been found to be a person of whom Australia owes protection obligations, he cannot be removed from Australia to his country of origin. As such, the likelihood of indefinite detention if he offends again is a strong countervailing factor to any chance of reoffending.
[8] GD p 190.
The reasoning for the claim that the Applicant will face indefinite detention in Australia is engaged. I will provide my reasoning for why I find that, for the purposes of this decision, it will amount to prolonged but not indefinite detention.
The Applicant has repeatedly expressed his frustrations with his extended detention. He has detailed the cost that the detention has had on his relationship with his family and his own mental health. He describes a future life in detention as ‘just regret and…pointless…I will be tortured by regret because I have lost my family’.[9] The Applicant explained in the same statement that ‘I could not be more motivated to learn from my mistakes’.
(f)The Applicant’s long-terms goals including his desire to re-join his family and provide a positive role model for his children.
[9] GD p 188.
The Applicant said that he acknowledges how hard his wife works while he has remained in detention, including holding down two jobs. He recalled that he has in the past been willing to work in any field to ensure an income and has the capacity to provide for his family. He noted that he spoke with his wife every day and that prior to the Covid-19 pandemic, she and their children would visit him, but since the lifting of the lockdowns during the Covid-19 period, he has not been visited by his wife due to her work responsibilities.
The Applicant’s wife, who is an Australian citizen, appeared as a witness and provided evidence regarding their long-term goals. She explained how she works in an aged care facility, as well as doing cleaning in the evenings. She described to the Tribunal how they would talk on the phone about the children, the past and their sense of guilt for what had happened. She said that they both did not understand the laws of this country, which led, in part, to the Applicant’s repeated incarceration.
She claimed that he was a good husband when they married and lived in Egypt. But after about a year in Australia, he began to drink, and the alcohol led him to act in the ways that he did. She said that she noticed a change in her husband while in immigration detention; a change that reminded her of the type of person he was before he was drinking alcohol. When asked about the timing of this change, she said that it was in 2019.
The Applicant’s wife said that their children, to varying degrees, continue to engage with their father. The oldest child submitted a statement of her own, which I refer to below. The second oldest, according to the wife, struggles without her father. She said that the second oldest child would in the past regularly visit her father in prison and would cry during his absences. The oldest son, she claimed, loves his dad very much and wants his father to play a role in his life. The fourth oldest is struggling and is wayward. She believes he needs a father figure. According to the Applicant’s wife, the two youngest children have not known their father as he has been in detention for most of their lives.
When asked about the lack of appearances by the children at the hearing, the Applicant’s wife said that they had appeared at the prior Tribunal hearing in 2019 and at that time, she had promised them that there would be a positive outcome, but it had not occurred. She believes that they became disillusioned by the process and did not want to relive the pain of hoping for a positive outcome and being let down. I place no weight on their absence.
The Applicant’s wife described their plans if the Applicant was to be released. This included the Applicant finding work which would allow her to only have one job. She said that they would move to Colac and live together if he was released from immigration detention.
The Tribunal received two written submissions from the Applicant’s oldest daughter, both undated. One appears to have been written in 2020. In her statement, which appears to be from 2020, she wrote that she knew of her father’s offending but believed him to have changed and that he is no longer a threat to society.
The Applicant said that his drinking had cost him his family. He said that his youngest children are entering their teens, which are vulnerable years and that he wants to be there for them. He said that he feels guilty for what he has done to his children.

He also described his future plans, which included first moving into accommodation offered by the Catholic Church through Reverend Michael O’Toole, who appeared as a witness. When he had the ability to, he would find accommodation for his family and ask them to come to Colac.
(g)The Applicant’s behaviour during his period of time in immigration detention has been excellent, with only a handful of alleged trivial infractions.
At the hearing, the Applicant gave evidence that while in immigration detention, he tries to stay away from trouble and that he mentors young Sudanese who are new to detention, including explaining to them that Australia has given them an opportunity and that they need to take advantage of it.
I note that through his more than six years in detention, the Applicant has had five infractions, none of which involve violence. Four of the five infractions could have been the work of another inmate as the issue basis for reporting an incident arose from the existence of contraband in shared accommodation. The infractions include passing an item of contraband to other detainees, the discovery of contraband in the Applicant’s room shared with another detainee, and the discovery of an unidentified tablet in a room shared by the Applicant and another detainee.
Cross-examination
Under cross-examination by Mr Orchard, the Applicant acknowledged that he had quarrelled with his wife in 2007, but he said that he could not remember what he had done to her as he was drunk. He said that he learned from his wife that he pushed her. He said that although he cannot remember what happened, he nevertheless accepts what she says that he did. Mr Orchard made the point that this did not appear to be a complete acceptance of his wrongdoing, as he appeared to simply accept what he was being told rather than carrying the full responsibility for his actions.
The Applicant said that his repeated violations of the AVOs were due to a lack of understanding of the law and the processes. He said that he pleaded what he was advised to plead so that he would be allowed to go home as soon as possible. Mr Orchard noted that the Applicant’s repeated statements of acceptance of responsibility did not align with his statements that he didn’t understand the law. He noted that he had been offending for ten years, spanning 2005 through to 2015, and put to the Applicant that he had ample opportunity to learn what the community expectations were about offending. The Applicant acknowledged this.
The Applicant also acknowledged that the Department had warned him in 2012 by way of correspondence regarding the potential consequences of any other conduct that could lead to his visa being cancelled on character grounds.
It was put to the Applicant that being employed was not a factor that prevented him from offending. The Applicant agreed.
The Applicant was reminded of the sentencing remarks of the Magistrate from 2011, which included that the Applicant had shown complete disdain for the laws by telling his wife, ‘I don’t give a fuck about the AVO’.[10] The Applicant denied using the term ‘fuck’ as he said that it was not a part of his vocabulary. When it was put to him that he may not have used those specific words but words that amounted to him conveying the view that he did not care about the AVO, he accepted it, but referred to his mental health problems. He said that he used to drink a lot of alcohol. He said that he respected the orders, but he was driven by the desire to see his children who are important to him. Mr Orchard brought to the Applicant’s attention details of the case, which included that the Applicant believed he had a right to see his children on Christmas. There was an AVO against him, which according to the sentencing remarks, precluded the Applicant from engaging in conduct that would intimidate his wife. It appears from the sentencing remarks that when the Applicant visited his family’s home, his wife identified that he was drunk, and she refused him entry to the home, at which point he damaged a glass window.
[10] GD p 56.
Conclusion: Primary Consideration 1
I am concerned by the Applicant’s reversion to a claim that he did not know the law. While this may be the case after a first offence, that the Applicant repeated to offend, both through his actions against his wife and his drunk driving over a period 10 years, leads me to conclude that he has not fully acknowledged his responsibilities. I am further concerned by the Applicant’s wife describing them both as being responsible for a lack of knowledge of the law. It is of concern, as it is indicative of a sense of guilt which she spoke of regarding her decisions to rely upon the police to act against his violence. While this may be indicative of a particular level of tolerance of some degree of violence, possibly arising from cultural perspectives, it reinforces the view that the Applicant has not embraced his sole responsibility for the circumstances.
I note that the Applicant has been in immigration detention for over six years. During this period, he has only five minor infractions. Due to the minor nature of the infractions, and noting that the Applicant has been in detention for over six years, the Applicant’s overall good behaviour in immigration detention weighs in his favour.
Nevertheless, as the Applicant is unable to drink alcohol in detention, which appears to be the trigger for his repeated offending, the true test of the Applicant’s reform will come when he is confronted with challenges in response to which he had in the past turned to alcohol. This may include being unable to find work or being rejected by his children. It is difficult to foresee how someone who has been unable to consume alcohol for nearly eight years would act in a situation in which the choice of drinking alcohol is present. There is no evidence to support one view or another. Nevertheless, the Applicant is better equipped than he has ever been to deal with such challenges. Unlike the situations of the past when he entered and re-entered prison, he has been afforded considerable support in the form of trauma counselling and behavioural courses. The professionals at Foundation House have determined that the Applicant no longer requires counselling, and the Applicant himself has described how he has learned to manage his challenges. This weighs heavily in the Applicant’s favour.
I acknowledge the repeated warnings that he has been given by others, including from the judiciary and the Department. He has rightly been described as a recidivist offender. This weighs heavily against the Applicant.
In giving an overall weight to this consideration, I acknowledge that the Direction requires decision makers to have ‘particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.’ I also accept that the nature of the seriousness of the offending and, in particular, the repeated disregard of the law weighs heavily against granting the visa. But when considering the risk the Applicant poses to the Australian community, the evidence operates in the other direction by reducing the weight. The Applicant has not been involved in any violent action while in detention, he has successfully completed intensive trauma counselling across four years, he has acknowledged and identified his triggers, and he appears to have developed tools to deal with them. He has thought about the costs of his future reoffending and has the incentive to refrain from drinking alcohol. Nevertheless, when considering the primary consideration, Protecting the Australian Community, I place a moderate weight in favour of refusing his visa.
Primary Consideration 2: Family violence committed by the non-citizen
The Direction informs decision-makers that the Government ‘has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.’[11]
[11] Direction, paragraph 8.2.
The Applicant has convictions involving common assault, assault occasioning actual bodily harm, and contravening a prohibition or restriction from an apprehended violence order since 2005; all of which arose from the violence he perpetrated against his wife.
The Applicant’s representative submitted that the Applicant acknowledges the violence he has committed against his wife, which included ‘both physical and verbal abuse, and the destruction of property belonging to the victim.’ This violence was noted to have occurred despite the Department formally warning the Applicant in 2012.
In submissions, it was argued that the Applicant has expressed remorse and regret; and that he has demonstrated his commitment to rehabilitation by undertaking extensive therapy ‘to address his own trauma, and the underlying cause of his offending.’ It was submitted that he is committed to re-engaging with his counselling if released; and that the reason he has stopped is that the previous provider could no longer offer him a place. The submission also noted that his wife had forgiven the Applicant.
Mr Orchard asked the Applicant if he respected women, noting that many Australians drink alcohol but do not act against their partners. The Applicant said that he does respect women. He said that he had apologised to his wife and that it was not right for anyone to raise their hand against another. He said that he had mental health challenges stemming from a very difficult childhood. Mr Orchard noted in closing submissions that the Applicant reverted to blaming his alcoholism and his mental health as the causes of his offending, without taking the necessary next step of accepting his behaviour.
In considering how to weigh the Applicant’s family violence, I note that the Direction provides some guidance in factors that should be considered. Under paragraph 8.2(3)(c), the Direction refers to the frequency and whether there is a trend of increasing seriousness, the cumulative effect of repeated acts of family violence, any rehabilitation and whether the person has reoffended after being formally warned.
It is apparent from the material that the Applicant has reoffended on numerous occasions across a 10-year period, but there is no evidence of the offending increasing in seriousness. Of the evidence available to the Tribunal, noting that there are no sentencing remarks available from the 2005 conviction, the most serious violence occurred in 2007. As noted above, this involved aggression towards his wife that amounted to punching a wall, striking his wife while she was holding their child, and ripping a phone charger out of the wall socket.
In 2009, he was imprisoned due to breaching an AVO while serving a suspended sentence. The breach of the AVO involved the Applicant pulling a light fitting out of the ceiling where he was living with his wife.
As noted earlier, in 2011, the violence he perpetrated was the breaking of a window of the house in which his wife was living. The Magistrate in this matter noted that the offences occurred at the victim’s home, and children were present. In addition, there was an apprehended violence order against him at the time. The condition of the order was that he not engage in conduct that would intimidate his wife.
In 2015, the Applicant appeared before a court twice, once in Fairfield and another time in Parramatta. Sentencing remarks are only available for the Fairfield matter, which in this instance, did not involve violence. The sentence was nine months’ imprisonment suspended. The Parramatta matter resulted in a six months AVO.
Based upon this history, I find that there is no increasing seriousness to the Applicant’s family violence offending. Nevertheless, the cumulative effect of his repeated acts of family violence against his wife is substantial. That she appeared as his witness and that she believes that he has changed, does not discount the cumulative burden of his past offending. I acknowledge, as discussed above, that the Applicant has undertaken extensive counselling regarding underlying mental health issues, which are believed to be factored into his offending. All of this has occurred since the last time of his offending. He has accepted responsibility for his actions.
Conversely, it is not clear to me that the Applicant understands the impact of his actions upon his wife and children. While he has expressed remorse, it is often couched in the context of his absence from the lives of his family, as opposed to the impact upon the individuals he has harmed. A recurrent theme of his defence was that he did not understand the law. Not committing family violence should not be about appreciating the laws but rather respecting the safety which should be afforded to all members of a family. As the Magistrate said in the 2009 sentencing remarks, ‘Now there may be some cultural issues here, I do not know but it is pretty simple really, you simply behave in a civilised way and you do not assault people. Whether you are drunk or whether you are sober.’[12]
[12] GD p 61.
I accept that the Applicant has undertaken a considerable effort to address the underlying factors which have contributed to his conduct, beginning with addressing his trauma and, subsequently, his dependence upon alcohol.
But as Mr Orchard noted, the Applicant has been formally warned on numerous occasions, by Magistrates who have lectured him on the consequences of future offending, to the Department that warned him in 2012 about the potential consequences of reoffending. Despite these warnings, the Applicant continued to reoffend.
Conclusion: Primary Consideration 2
Taking all of the matters described above into consideration, and in particular that while the nature of the offences themselves was on the lower end of family violence, and in the most recent incident did not involve violence, the Applicant’s behaviour was repeated. He ignored the numerous warnings, in one instance openly dismissing the importance of a family violence order by reportedly saying to his wife, ‘I don’t give a fuck about the AVO’.[13] This disdain for the purpose of an AVO appears to have lingered in the Applicant’s inability to empathise with his wife or children with regard to the impact his violence has had on them. Nevertheless, the Applicant has, subsequent to his offending, undertaken a long journey of introspection guided by professionals at Foundation House. He appears to have acknowledged the underlying problems and grappled with how to manage them. Overall, I place a limited weight in favour of refusing the Applicant’s visa.
[13] GD p 56.
Primary Consideration 3: Best interests of minor children in Australia affected by the decision
The Direction requires decision makers to consider whether a cancellation, refusal or non-revocation ‘is, or is not, in the best interests of a child affected by the decision.’ The Direction provides a list of relevant factors that must be considered when weighing the bests interests of the child. These factors are included below as sub-headings under which I consider them, for each of the Applicant’s four minor children, MA, aged 17; DA aged 15, AA, aged 13 and WA, aged nine.
I note that the evidence relating to the circumstances of the children is limited. There are two statements by the Applicant’s wife alongside evidence she provided at the hearing, a submission by the Applicant’s eldest daughter, another by the principal of Holy Eucharist Catholic Primary School, and one by the witness, Reverend O’Toole.
An undated statement from the Applicant’s wife includes the following regarding the children:
My children have a very strong bond with their father. He has taken good care of them and they respect and listen to him. I have been taking my children to see their father. My children say that they have not had enough time with their father. At school, my son wrote a very emotional story about [CGCM] when asked to write about his relationship with his father. After [CGCM] was taken away, my daughter attempted to run away from home over a year ago. My daughter loves her father and never behaved like this when [CGCM] was with us. The separation from [CGCM] has been very difficult on our children. Our children have already experienced so much trauma and mental stress because of [CGCM's] absence.
I am finding it very difficult to care for the children without the help of [CGCM]. Because of the stress caused by [CGCM] being taken away, my children are often unhappy and have had difficulties in their lives - it has been very hard on them not having their dad. I am unable to financially support my children on my own and cannot afford new uniforms for my children. I have nobody else to support me and care for my children. My mother is now elderly and cannot help me. I fear that [CGCM's] indefinite detention or deportation would destroy my family.[14]
[14] GD p 233.
In a separate undated statement, she explains that it would be very hard for her children, particularly the younger children, without their father. She writes that the children do not have any other father figure and that they ask a lot about him.
The Applicant’s oldest daughter explained in her undated statement, which appeared to be from 2020, that when she communicates with her father, her siblings get a sense of relief and happiness.[15] She wrote that it has been difficult for her mother to support the six children. Another letter, the date of which is difficult to ascertain, is written by the eldest child but claims to be on behalf of all the children.[16] The letter infers that the children want their father back, in part because their life will be hard without him, both emotionally and financially. She writes that her younger siblings love their father. She writes that he provides guidance in life to the children and teaches them right from wrong.
[15] GD p 236.
[16] GD p 237.
Paragraph 8.3(4)(a) - the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact):
(a)The Applicant’s four minor children have known their father to varying degrees. For the youngest, WA, his father went into prison when he was a toddler. For AA, he was about five years old when his father was imprisoned before being detained in immigration detention. For these children, the nature and duration of the relationship weighs lightly when considering the best interests of the child. But the situation for MA and DA is different. Their father is known to them and has played a parental role; although this is tempered by his long periods of absence due to his incarceration.
Paragraph 8.3(4)(b) - the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(a)There are no court orders limiting the Applicant’s interaction with the children. The Applicant’s wife is confident that her husband can play a meaningful role in their lives. She claimed in her written submissions that they both would play a role in looking after the children. At the hearing and in written statements, the Applicant expressed a concern for the welfare of his children. He has established a release plan that will enable him to gain employment and bring his family to Colac. It is his view that by providing an income, he will help the children. He explained this by way of their current living arrangements, which is in a house with five others. By providing for his family, he also believes that it will free his wife to stop working two jobs. This will affect all of the minor children equally.

The principal of Holy Eucharist Catholic Primary School wrote in a letter, dated 1 September 2020, that the ‘children need their father at home as they miss him not being in their lives’ and that ‘the male children in particular haven’t a male role model and are desperately seeking attention from the male teachers at our school’. The principal concluded by writing that in his opinion having the children’s father present will contribute positively to their wellbeing. This will affect all of the minor children equally.
Paragraph 8.3(4)(c) - the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(a)The Applicant’s past conduct has included violence against his wife that has impacted the children. In the most direct instance, this occurred when the Applicant struck his wife while she was holding their child. Despite this, evidence from multiple witnesses was given that the children have all, at some stage, visited the Applicant in immigration detention. Despite their common experiences, the evidence provided by the Applicant, which is not in dispute, is that the eldest of the minor children has a relationship with the Applicant and that they talk regularly. The eldest son is disappointed that he cannot attend cultural events with his father as other children do. With regards to DA, the second oldest son, the Applicant said that he was having problems and was not attending school. The Applicant believes that his presence in his son’s life will help his son navigate the challenges he is facing. Regarding the two youngest children, the contact is limited. In the instance of the youngest, he said that he provides help over the phone with his maths.
I find that the Applicant’s presence will be most felt by the eldest and that it will be felt positively. I am less certain about the impact on the second child, and without any professional evidence indicating the situation this child is in, I can only surmise that some engagement with his father would be better than none. Regarding the two youngest children, I find that both will benefit from their father’s presence.
Paragraph 8.3(4)(d) - the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(a)As will be discussed below, a return to South Sudan is not within the purview of this decision. As such, consideration of the best interests of the child under this factor are in the context of prolonged detention. The Applicant’s past experience had been that he has moved around Australia’s detention network; although, as indicated by evidence from Reverend O’Toole,[17] when he submitted a request to remain in Melbourne closer to his family he remained in Melbourne. Based upon the past experiences of the Applicant, the future will most likely involve long term detention in Melbourne Immigration Transit Authority. As such, the Applicant’s children will have the chance to engage with him but only under the conditions allowed for by the rules and procedures at the time. Under such circumstances, I find that as the eldest child is soon to turn 18 years of age the likely effect upon that child is minimal. But for the other three children, the likely effect of separation, only being able to maintain a relationship with the Applicant over the phone, through video chats or on the rare occasions that their mother has the time to take them to visit their father, will have a significant impact.
[17] ATB p 14.
Paragraph 8.3(4)(e) - whether there are other persons who already fulfil a parental role in relation to the child;
(a)Although it was noted that four other male adults, including the brother of the Applicant’s wife, live in the same house as the children, it was repeatedly claimed that they did not have a father figure in their lives. Mr Orchard did not query this apparent contradiction, and as such, no weight can be placed on this. Instead, I rely upon the evidence provided by the Applicant, his wife, the eldest daughter, the Reverend O’Toole and Jeffrey Parker, Principal of Holy Eucharist Catholic Primary School, all of whom mentioned the benefit that would accrue to all of the children if they had a male figure in their household. As such, this will affect all of the minor children equally.
Paragraph 8.3(4)(f) - any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(a)The children did not appear at the hearing. One undated letter was received, written by the eldest child who is not a minor, which purported to speak on behalf of all of the children (the other letter written by the eldest child did not claim to speak on behalf of the other children). In response to the possibility of deportation, the letter requests that the then decision maker ‘not do this because our life would be hard without our father in it, not only emotionally but also financially…we would dearly miss him, and we know that we can’t live without him.’[18] This will affect all of the minor children equally.
[18] GD p 237.
Paragraph 8.3(4)(g) - evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(a)There is no evidence before the Tribunal that any of the children have been subject to direct physical violence or otherwise abused physically, sexually or mentally. There is evidence that the youngest child was held in the arms of his mother at a time when the Applicant struck her. There is also evidence that the Applicant has been drunk and verbally abusive to his wife in front of the children.[19] As such, there is evidence that the children have all been exposed to family violence, but there is no evidence to suggest they have been abused, neglected or subject to family violence, or that they are at risk of being subjected to the same.
[19] GD p 56.
Paragraph 8.3(4)(h) - evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
(a)There is no evidence before the Tribunal regarding this factor.
The Applicant has also identified two children of his cousin who are in state care due to their mother passing away. It has been submitted that were the Applicant to be able to remain in Australia, he would explore the possibility of making an application to care for the children himself. As further details are unknown, such as the current status of the children and whether the Applicant would be found fit to care for them in addition to his own children, I find that any further consideration of this possibility would be speculative and, as such, place no weight on the best interests of the children of the Applicant’s cousin.
Conclusion: Primary Consideration 3
I have considered the best interests of each of the children separately. Nevertheless, when considering the weight to be given to the best interests of minor children, I will give a cumulative weight to the overall best interests of the children. In doing so, I note that the eldest minor child is about to turn 18, and so the limited amount of time the Applicant’s engagement with his father weighs less heavily than the interests of the younger children with whom the Applicant still has many years of opportunity to provide some positive support and guidance. Overall, I place considerable weight against the refusal of the Applicant’s visa arising from the best interests of the children.
Primary Consideration 4: Expectations of the Australian Community
The Direction details the expectations of the Australian community which must be taken into consideration by the decision-maker. The Direction notes that ‘the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia’.[20]
[20] Direction, paragraph 8.4(1).
It goes on to add, ‘In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere.’[21]
[21] Direction, paragraph 8.4(2).
As the statements of community expectations within Direction 90 are deemed to represent the views of the Australian community, and I note that in this case, the Applicant’s offending will weigh against the Applicant, it becomes a matter of considering the extent and degree of weight to be placed on this consideration.
Before doing so, I note that the submissions by the Applicant’s lawyer suggested that weight given to this consideration should be ‘significantly moderated on account of’ the Australian community’s expectations relating to commitments to a variety of international treaties including those that relate to non-refoulement, prohibiting indefinite detention and rights of the child. But I note in a number of judgements, including FYBR v Minister for Home Affairs[22] and PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[23] the judgements have articulated the importance of not introducing matters that are relevant to ‘Other Considerations’ into ‘Primary Considerations’. For example, as noted by Middleton J:
to allow a decision-maker to import the ‘other’ considerations into its analysis of the fourth primary consideration in cl 8.4 of Direction 90 would render cl 7.2 of the Direction unworkable. When one has regard to the text of Direction 90, it is clear that the decision-maker is not left at large to pick and mix from the primary and other considerations.
[22] FYBR v Minister for Home Affairs [2019] FCAFC 185.
[23] PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1050.
As such, in considering what weight to place on this consideration, I am focused on the specific scope identified by the Direction.
Relevant to this approach, Ms Jackson noted that the Applicant had been found to be someone to whom Australia owes protection. She rightly noted that under ‘5.2 Principles’ in the Direction, it states, ‘Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian Community for most of their life.’ This principle may act to moderate any weight in favour of refusing the Applicant’s visa under this consideration.
In response, Mr Orchard noted that the nature of the Applicant’s offending, specifically that it is repeated family violence, weighs heavily against the Applicant. He referenced other principles under paragraph 5.2, including 5.2(2), which states that non-citizens who engage in criminal conduct should expect to be denied the privilege of staying in Australia; 5.2(3), that the Australian community expects the government to refuse visas if the person engages in conduct that raises serious character concerns; 5.2(4), that Australia has a low tolerance of any criminal conduct by visa Applicants; 5.2(5), which explains that the nature of the offending may be so serious that even strong countervailing considerations may be insufficient to justify refusing a visa. It is relevant to note that Principle 5.2(5) goes on to say that ‘In particular, the inherent nature of certain conduct such as family violence…is so serious that even strong countervailing considerations may be insufficient in some circumstances.’
Conclusion: Primary Consideration 4
The different submissions by the representatives of the Applicant and the Minister are not in contention, but rather the issue of how much weight is placed on the principles which Mr Orchard pointed to and, on the other hand, the acceptance of the principles that Australia may afford a higher level of tolerance to those who have lived most of their life in Australia.
In considering this, I note that the Applicant arrived in Australia when he was 25 years old. This is not ‘very young’; and so the other limb of the principle is more relevant, which is that it applies to people who have lived in the Australian Community ‘for most of their life.’ The Applicant has been in Australia for seventeen years. But I do not accept that immigration detention and prison is the ‘Australian Community’ in the sense the Direction implies, nor would it be considered so in the common vernacular. While prison and immigration detention are a part of Australian society, the community is the social space where individuals lead free lives. Hence, references to the voice and views of the ‘Australian Community’, replete through the Direction, would not include non-citizens in detention or a cohort of citizens who have disregarded the community through their behaviour. Deducting the nearly 11 years the Applicant has spent in these places, leaves only about six years in the Australian community. This does not amount to most of his life, and as such, any mitigating weight is substantially reduced, such that I place a considerable weight in favour of refusing the Applicant’s visa for this primary consideration.
Other Considerations
Other Consideration: International non-refoulement obligations (paragraph 9.1)
With regards to non-refoulement obligations, the refusal of the Applicant’s protection visa would make him an unlawful non‑citizen and would result in him being liable to detention under s 189 of Act, unless he voluntarily agrees to return to South Sudan.
Aligned with earlier reasoning in a case co-heard by this member and Deputy President Redfern, but in the Migration and Refugee Division (1901883 (Refugee) [2021] AATA 3216 (2 September 2021)), I have concluded in this matter that the effect of the Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 (Cth) is that the refusal by this Tribunal of the Applicant’s visa would not lead to his removal in breach of Australian’s non-refoulement obligations. The critical issue, in this case, is that the amendments to the Act have the effect of changing the assessment the Tribunal must make when considering non-refoulement in the context of exercising the discretion of whether or not to refuse a protection visa.
In brief, s 198 of the Act is now subject to the provisions of the new ss 197C(3) and 197D of the Act. Prior to its amendment, s 197C of the Act provided that, for the purpose of removal under s 198, it was irrelevant whether Australia had non-refoulement obligations in respect of an unlawful non-citizen, and that the person must be removed as soon as practicable. Section 197C was initially introduced to deter the making of unmeritorious protection claims as a means to delay an Applicant’s departure from Australia where the Minister or delegate had already found that the person did not engage non-refoulement obligations.
Broadly speaking, this new subsection provides that s 197C does not require or authorise the removal of an unlawful non-citizen who has been found to engage protection obligations, as the Applicant has, through the protection visa process unless the decision finds that the non-citizen engages protection obligations has been quashed or set aside, the Minister is satisfied the non‑citizen no longer engages protection obligations under the new provision set out in s 197D, or the non‑citizen requests removal.
Section 197D(2) provides that, for the purposes of s 197C(3), the Minister may make a decision that a person no longer engages protection obligations. The provision gives the Minister broad discretion to make such a decision. Relevantly, the Supplementary Explanatory Memorandum states at [10] that ‘[i]n practice, it would be rare that a person who has been found to engage protection obligations would no longer engage those obligations.’
A circumstance in which the Minister may make a decision that a person no longer engages protection obligations is where protection obligations were found to be owed, but some or all of the factors on which that decision was made are found to have been incorrect.
If the Minister does not make a decision under s 197D(2), and neither of the other provisos applies, the effect of s 197C(3) is that any existing protection finding will prevail. The removal of the unlawful non-citizen will not be authorised, and the unlawful non-citizen will therefore remain in detention unless or until:
(a)The Applicant is removed to a third country;
(b)The Minister invites the Applicant to apply for a Bridging R (Class WR) visa under s 501E(2)(b) (as prescribed by reg 2.12AA of the Migration Regulations 1994 (Cth));
(c)The Minister grants a visa under s 195A (Minister may grant detainee visa (whether or not on application)); and
(d)The Minister makes a residence determination under s 197AB (Minister may determine that person is to reside at a specified place rather than being held in detention centre etc.).
Conversely, if the Minister decides to make a decision under s 197D(2), this will involve a fresh assessment of the relevant protection criteria at the time of the determination. Relevantly, there are review rights in respect of any such decision, and as such, removal under s 198 at this stage does not inevitably follow from a person becoming an unlawful non‑citizen where there has been a previous protection finding made in respect of that person. This is because there is now a procedure contemplated under ss 197C(3) and 197D, which provides for a further decision to be made about Australia’s international obligations at the time of consideration of removal.
Thus, the question of whether there has been a ‘protection finding’ is a critical threshold issue.
In this case, the delegate made a finding that the Applicant meets the definition of a refugee. Accordingly, there was a ‘protection finding’ previously made in respect of the Applicant. This being the case, s 197C(3) provides that the Applicant’s removal is not authorised unless one of the exceptions applies. One of the exceptions is a determination under s 197D(2) of the Act, i.e. that the Applicant no longer engages protection obligations. If there is no determination under s 197D(2), as there isn’t in this case at this stage, the existing protection finding remains and will, in turn, ensure that the Applicant is not removed in a potential breach of those obligations. If a determination is made by the Minister that protection obligations are no longer owed at some future point, any removal then will not give rise to a breach of Australia’s international obligations as there is no longer a finding that the person is owed protection. This means that the refusal of the Applicant’s protection visa at this stage would not, of itself, lead to removal in breach of Australia’s international obligations on non-refoulement because the process of removal now includes the new provisions, which include further considerations.
Ms Jackson raised the possibility of the Applicant voluntarily choosing to return due to the dire nature of life in detention while he continues to face a well-founded fear of persecution (i.e. a protection finding remains). This may arise through despair or severe deterioration of his mental health. It could lead the Applicant to seek a way out of his situation, which would nevertheless then place his life at risk. The question arises as to whether a voluntary return, albeit influenced by an extended period in detention, amounts to a breach of Australia’s international obligations as long as the protection finding remains in place.

I note that Article 33 of the Convention Relating to the Status of Refugees (commonly referred to as the Refugee Convention) states that ‘No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened…’ (italics added). The Convention offers two conditions of return, one in which a person is expelled and another in which they return. The inclusion of both implies a distinction that appears to favour the view that to expel covers involuntary return, whereas return would cover the voluntary return. In both cases, that return would lead to a life being threatened amounts to refoulement.
While the legal structures do not allow for refoulement and, as such, would lead to this consideration being weighted neutral, I place some weight against the refusal of the Applicant’s visa for the reason that, after having spent six years in immigration detention, further detainment would increase the risk that he would voluntarily choose to return even if there was a well-founded fear of persecution to the Applicant. But even so, as the possibility of this occurring is very low, I place limited weight against the refusal of the Applicant’s visa application.
Other Consideration: Extent of impediments if removed (paragraph 9.2)
The Direction requires the decision-maker to 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 summary, such considerations should be undertaken ‘in the context of what is generally available to other citizens of that country, taking into account the non-citizen's age and health; whether there are substantial language or cultural barriers; and there are any social, medical and/or economic support available to them in that country.’[24]
[24] Direction, paragraph 9.2.
In submissions by Ms Jackson, extensive information was provided on the circumstances in South Sudan, which I would describe, based upon the information provided, as being dire. There is a reference to evidence that the country is facing its ‘worst hunger crisis ever’ and that there is ongoing conflict. There is limited employment, and there is no evidence that the Applicant has any relatives to whom he could turn in South Sudan. He left South Sudan in 2004 when he was twenty-five years old and before the new country was established in 2011. It was submitted that the Applicant’s mental ill-health would provide further impediments.
Mr Orchard did not respond to this consideration based upon an analysis that the law as it is would not allow for involuntary removal.
As noted above, the refusal of this visa does not lead to the Applicant facing deportation; but there is a very low possibility that the Applicant may choose to return voluntarily. In such a circumstance, the impediments he faces are considerable. Due to the low likelihood of this eventuating, I place limited weight against the refusal of the applicant’s visa application.
Other Consideration: Impact on victims (paragraph 9.3)
This consideration relates to any known views of victims who are aware of the potential migration implications for the non-citizen.
The Applicant’s wife appeared before the Tribunal to give evidence as both the victim of the violence and the mother of the Applicant’s children. Under the above considerations, I have given weight to her views with regard to the Applicant’s rehabilitation and remorse. I have also given weight to the wife’s statements regarding the impact of continued detention on her children and, in turn, her as their mother and primary carer.
I note that this consideration specifically states that decision makers must take into consideration, ‘the impact of the ss 501 or 501CA decision on members of the Australian community’. The impact is not the impact of the violence but the impact of the Tribunal’s decision, in the sense that a favourable decision for an applicant may instil ongoing fear or trauma upon their victim. It is also specifically relating to the impact on a ‘victim’, that is, someone who has been harmed. At first glance, it is hard to envisage under these circumstances how a favourable weight could be given under such considerations.
In Bale and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646 at [27], the Federal Court, in a passing remark arising from a similar matter but under the previous relevant direction, noted the possibility of a circumstance where weight is given under this consideration to a victim of domestic violence who has forgiven her partner.
Noting that we are not to double count relevant matters, in this instance, while I have taken into consideration the wife’s view of the Applicant’s remorse and rehabilitation, and the best interests of the children, I have not taken into consideration the wife forgiving him and the impact on her of this decision. The impact would be that her relationship with her husband would be severely impacted, damaging her ability to have companionship and love from her life partner. Based upon the above findings, this would not be for a limited period but potentially for a prolonged period or if he voluntarily returns to South Sudan, potentially indefinitely.
In considering this judicial authority and noting that the impact upon the Applicant’s wife, despite being the victim, would be considerable to her was the decision adverse leads me to place moderate weight against the refusal of the visa based upon the Applicant’s wife having forgiven him.
Other Consideration: Links to Australian community (paragraph 9.4)
The strength, nature and duration of ties to Australia
This factor requires the decision-maker to have regard to the strength, nature and duration of the non-citizen’s ties to Australia.
Limited evidence was provided of the ties the Applicant has established in Australia other than family relations. Letters of support were received from the Australian South Sudanese Community Association (VIC) (two letters), Community of Southern Sudanese And Other Marginalised Area Inc. NSW, and the Parish of Colac of the Roman Catholic Church (statutory declaration and letter).
The letter from the Australian South Sudanese Community Association included a reference to the Applicant undertaking ‘substantial volunteer work’. It goes on to say that the author of the letter, the President of the Association, has known the Applicant for nine years and has seen him actively involved in their community.
The letter from the Community of Southern Sudanese And Other Marginalised Area Inc. NSW included praise for the Applicant and his involvement in the establishment of the Abyei United Soccer Team, a South Sudanese soccer team that engages South Sudanese young people. The Applicant was said to have engaged often in coaching younger children and was contributing to the community.
The Applicant arrived in Australia at the age of 25 and has lived in this country for 18 years, of which, as noted earlier, about eight were in the community. Of these 18 years, over six have been spent in immigration detention and nearly five in prison. While in the community, the Applicant has worked in a variety of roles, including welding in a steel factory, on a construction site, in a meat factory, and in a recycling plant, and he had set up his own business, which included hiring up to seven subcontractors. This broad range of work experience and the wide geographical spread of where he has worked denotes an individual who has engaged with the Australian community extensively.
I place moderate weight against refusal for the reason that the Applicant has family, religious, diaspora and work-based ties to the Australian community.
Impact on Australian business interests
No claims were made, nor evidence received that would suggest that the Applicant’s removal would have an impact on Australian business interests. As such I place no weight on this consideration.
Other Considerations: Prolonged detention
The Applicant’s stay in detention can, conservatively, be foreseen to extend at least into a few through to several years, as the new processes arising out of ss 197C(3) and 197D(2) are as yet untested. It is unclear how the Department will approach this new process, and no cases have been reviewed by and finalised within the Administrative Appeals Tribunal, such that an estimation of the time frame can be accurately made.
It would be speculative of this Tribunal to judge the outcome of future decision-making processes. It may be that a future decision maker finds that the Applicant, according to s197C(3), ‘is no longer a person in respect of whom any protection finding’ exists; thereby removing the impediment to involuntary return. In such a case, this decision may be weighted differently. In the alternative, during this period of a few or several years, the Applicant may receive a favourable decision from the Minister based upon the powers granted to him to intervene in such cases, which would affect the weighting of this decision. As noted above, these powers include:
(e)The Applicant is removed to a third country;
(f)The Minister invites the Applicant to apply for a Bridging R (Class WR) visa under s 501E(2)(b) (as prescribed by reg 2.12AA of the Migration Regulations 1994 (Cth));
(g)The Minister grants a visa under s 195A (Minister may grant detainee visa (whether or not on application)); and
(h)The Minister makes a residence determination under 197AB (Minister may determine that person is to reside at a specified place rather than being held in detention centre etc.).
While previous Ministers have not exercised these powers in the Applicant’s favour, the circumstances may change in the future. I note the judgement of Jagot J in BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[25] in this regard:
The contemplation of this possibility, that a Minister might exercise these powers in the future, is not irrational and does not lack good faith. It is within ordinary human experience that, over time, Ministers change and Ministers change their minds. At the time the Minister made this decision, 7 March 2022, it was a notorious fact, of which judicial notice may be taken, that there would be a Federal election within a few months. Even without that fact, the Minister must be taken to have known that relevant circumstances may change, Ministers may change and Ministers may change their minds. These were all rational possibilities at the time the Minister made the decision.
[25] BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 878 (28 July 2022)
It is possible that at some point, over the coming few or several years before the processes envisaged under s 197D play out, the Applicant may be looked upon favourably by this Minister (or another). I see this prospect as being speculative. As long as there is an administrative process in place, there is no evidence to suggest a Minister would exercise their discretion. As such, for the purposes of this decision, I consider the more likely scenario of the Applicant remaining in detention for a few or several years to come.
Noting that the Applicant has been in immigration detention for over six years, a further few years will weigh heavily upon him. Remaining in detention is not a case of becoming acclimatised to the surroundings, but rather weighs heavier the longer one’s liberty is withheld. For the probability of further prolonged detention, such that the Applicant could be in immigration detention overall for more than a decade, which would weigh heavily on the Applicant due to his particular circumstances, I place substantial weight against the refusal of the Applicant’s visa.
I note that Ms Jackson argued that indefinite detention would be a breach of Australia’s international obligations. Material to such effect was provided. But I note that at this stage, indefinite detention remains speculative, as further stages of review remain; after which, once exhausted, a Minister may exercise personal powers. Nevertheless, to give Ms Jackson the benefit of the doubt, I have also considered whether further prolonged detention would be a breach of Australia’s international obligations. I note that the plurality of the High Court in Commonwealth of Australia v AJL20[26] found that prolonged detention was not unlawful in the circumstances of that case. There are similarities between that case and this matter. As such, I find that prolonged detention does not accrue additional weight for reasons of breaching Australia’s international obligations.
[26] [2021] HCA 21 at [72] per Keifel CJ, Gaegler, Keane and Stewart JJ.
Conclusion
The Direction notes that decision makers must take into account the considerations identified in sections 8 and 9 of the Direction where relevant. It also guides the decision maker in weighing these considerations, in that primary considerations ‘should generally be given greater weight than the other considerations.’ This does not preclude other considerations carrying greater weight; instead, each case must be considered on its merits.
In this case, the Applicant’s circumstances are such that the primary consideration of the best interests of the child weigh considerably against the refusal of the Applicant’s visa as the Applicant’s four minor children would benefit from his presence. Also weighing in the Applicant’s favour were the other considerations, including international non-refoulement obligations, albeit lightly so; impediments to removal; links to the Australian community, which weighed moderately; impacts on victims, which carried moderate weight; and prolonged detention, which weighed substantially.
Weighing in favour of refusal was the first primary consideration, namely, the protection of the Australian Community. But I found that due to the Applicant’s reform through intensive counselling, the risk was limited, and as such, the weight placed on this consideration was moderate. The further consideration of his offending under the second primary consideration of family violence was weighed as limited due to the mitigating factors outlined in the Direction. The weight given to the Primary Consideration of the Expectations of the Australian Community was considerable. No ‘Other Considerations’ weighed in favour of refusal.
When considered as a whole, taking into consideration the primary and other considerations, I find that the Applicant’s visa should not be refused.
DECISION
Pursuant to s 43(1)(c) of the AAT Act, the Tribunal sets aside the reviewable decision dated 15 September 2022 and, in substitution for the decision so set aside, decides that the Applicant's Protection (Class XA) (Subclass 866) visa should be granted.

167.

I certify that the preceding 166 (one hundred and sixty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President D. Dragovic

........................[SGD]................................................
Associate
Dated: 20 December 2022

Dates of hearing:

5 and 6 December 2022

Counsel for the Applicant:

Ms Melinda Jackson

Solicitors for the Applicant:

Refugee Legal

Advocate for the Respondent:

Mr Christopher Orchard

Solicitors for the Respondent:

Sparke Helmore Lawyers

Annexe – Schedule of Exhibit
Exhibit 1  G-documents (‘GD’) lodged on 17 October 2022
Exhibit 2  Respondent’s Tender Bundle (‘RTB’) lodged on 28 November 2022
Exhibit 3  Applicant’s Tender Bundle lodged on 30 November 2022

[2022] AATA 4440

20 December 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Natural Justice

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2022/7978
General Division	)

Dates of hearing:	5 and 6 December 2022
Counsel for the Applicant:	Ms Melinda Jackson
Solicitors for the Applicant:	Refugee Legal
Advocate for the Respondent:	Mr Christopher Orchard
Solicitors for the Respondent:	Sparke Helmore Lawyers