CGQJ and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 56
•3 February 2025
CGQJ and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 56 (3 February 2025)
Applicant/s: CGQJ
Respondent: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Tribunal Number: 2022/9554
Tribunal:Senior Member A George
Place:Adelaide
Date:3 February 2025
Decision:The Tribunal affirms the Reviewable Decision.
.........[SGD]...............................................................
Senior Member A GeorgeCatchwords
MIGRATION – cancellation of Applicant’s Class BA Subclass 200 (Refugee) visa – murder – very serious offending – unacceptable risk to the Australian community – decision affirmed
Legislation
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Galuak and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 2301
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Secondary Materials
Direction No. 110, Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons
CGQJ is aged 38 years. He arrived in Australia from Egypt as a child in 1997. On 30 January 2007, CGQJ was convicted of murder in the Supreme Court of Victoria and imprisoned.
CGQJ’s Class BA Subclass 200 (Refugee) visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) on 24 March 2017. CGQJ made representations through his then legal representative seeking revocation of the cancellation decision.
On 25 February 2020, the Respondent was not satisfied that there was another reason why the cancellation decision should be revoked. This is the Reviewable Decision.
It is uncontroversial that CGQJ has a substantial criminal record and therefore, does not pass the character test under ss 501(6)(a) and 501(7)(c) of the Act. Accordingly, the issue in this matter is whether there is another reason why the cancellation should not be revoked.
The Tribunal affirms the Reviewable Decision for the following reasons.
SUMMARY OF EVIDENCE
There are over 4100 pages of evidence and submissions in this matter, which have been considered wholistically by the Tribunal together with six days of oral evidence and submissions. The material parts of the evidence are summarised as follows.
CGQJ arrived in Australia aged 11 years. He long believed that he was born in Khartoum in Sudan, but now believes that he was born in Wau in South Sudan. CGQJ is of Dinka ethnicity, a practising Catholic, and a member of the wider South Sudanese community in Australia. CGQJ has a large and supportive family.
CGQJ’s mother is Ms Nyandoup (aged 61 years) and his father is Mr Angelo (aged 74 years). His living siblings are Mr Zakaria (aged 46 years), Mr Franco (aged 41 years), Ms Regina (aged 43 years), Ms Helena (aged 41 years), Ms Achol (aged 35 years), and Ms Bianca (aged 33 years).[1]
[1] Surnames have not been used in these reasons to minimise the risk of the identification of the Applicant.
CGQJ has eleven nieces and nephews in Australia. They are Mr Jayden (aged 24 years), Ms Abok (aged 19 years), Ms Sabrina (aged 19 years), Master Athuai (aged 15 years), Miss Lavera (aged 15 years), Master Nghot (aged 15 years), Master Nuer (aged 10 years), Master Real (aged 9 years), Master Ajuet (aged 7 years), Master Jordan (aged 5 years), and Miss Paula (an infant).
All these family members are either Australian citizens or permanent residents, as are other extended family members.
CGQJ had a difficult upbringing. He struggled at school in Townsville and Brisbane, before moving to Melbourne. He started drinking alcohol and smoking marijuana from the age of 15 years. He did not finish school. CGQJ was deeply affected by the death his brother Mr Francis in 2003 in a motor vehicle accident, which also injured his brother Mr Franco. This caused CGQJ significant grief and devastated the whole family.
In July 2005, CGQJ was found guilty of committing murder in September 2003 following a trial by jury in the Supreme Court of Victoria. From Kaye J’s sentencing remarks,[2] the only issue at CGQJ’s trial was whether it was CGQJ who fatally stabbed the deceased. The verdict of the jury means that it was satisfied beyond reasonable doubt that it was CGQJ who stabbed the deceased.
[2] Citations have not been provided due to the pseudonym that has been granted to the Applicant.
CGQJ was aged 17 and a half when he murdered the deceased. CGQJ was in company and on bail. It is unnecessary to recount the events immediately prior to the stabbing, or to recite the events of the murder in graphic detail. It is sufficient to note that his Honour remarked that the stab wounds were “vicious” and that he had “no doubt” that they were inflicted “with the intention of killing your helpless victim”.
His Honour identified several factors “which make this a particularly serious instance of the crime of murder”, which are summarised as follows:
(a)CGQJ had no cause to attack the deceased or to stab him. CGQJ was not acting in self-defence and had not been provoked.
(b)The attack on the deceased was premeditated. CGQJ concealed the knife behind his back and struck at the most opportune time to inflict maximum damage on the deceased.
(c)The attack on the deceased was “particularly cowardly” as CGQJ was larger than the deceased and the deceased was unarmed. No defensive wounds were on the deceased’s body, because “He did not get any opportunity to raise his hands in self-defence, let alone strike out at you”.
(d)CGQJ stabbed the deceased repeatedly and with significant force.
(e)CGQJ “displayed manifest pleasure” when stabbing the deceased. His Honour remarked that “Your frame of mind as you did so is a frightening insight into what must have motivated you. Your attack on him was as callous as it was vicious”.
(f)The deceased “was an innocent young adolescent on the verge of life”.
His Honour then made the following remarks at paragraph [9]:
A further relevant circumstance in this case concerns the fact that you actually had a knife in your possession on that night at all. Five days previously, you had been searched by Senior Constable Ure of Footscray Police, and found to possess a large carving knife, secreted in your pocket. He had taken that knife off you, and warned you that it was illegal to carry a knife. Thus on the evening in question you knew full well that your possession of the knife was unlawful.
The Tribunal also notes that CGQJ had been convicted for possessing a controlled weapon without excuse in April 2004 for offending prior to September 2003. In his statement of 13 March 2024, CGQJ explained that he was carrying a knife for self-protection.
At paragraph [10], his Honour continued with the following characterisation of the CGQJ’s act of murder:
Your brazen and totally unjustified attack on the deceased man and his two companions going about their lawful business was utterly unacceptable. Your use of a knife was a contravention of a basic standard and value of our society. You took the life of an innocent and decent young man. Your conduct violated the most fundamental norm of civilised behaviour.
His Honour noted that “The crime of murder is the most serious crime known to our system of justice, involving as it does the intentional and unjustified taking of the life of another.” His Honour reiterated that this murder “is a particularly serious instance of that crime”. He went on to remark that the circumstances of this murder were “particularly callous” and that the blows displayed “savagery”. His Honour remarked that CGQJ’s offence of murder “is very serious. It was committed in circumstances of significant gravity”.
CGQJ was sentenced and, following an appeal, his sentence was set at 18 years imprisonment with a non-parole period of 14 years.
The body of the evidence in the current proceedings includes CGQJ’s oral evidence, several statements from him, and numerous letters and forms authored by him. Aspects of CGQJ’s evidence have changed over time, particularly regarding his recollection of the murder. CGQJ’s evidence now is that he accepts responsibility for the murder and that he is very sorry for it, but that his memory is “scrambled”. CGQJ had consumed a lot of marijuana and alcohol on the night of the offending, which affected his memory.
CGQJ was involved in numerous incidents whilst in prison. The following incidents contained in Corrections Victoria reports are notable:
(a)In April 2004, a shiv was found in CGQJ’s cell.
(b)In August 2004, a sharpened toothbrush was found in CGQJ’s cell.
(c)In August 2005, a smoking implement was found in CGQJ’s cell.
(d)In October 2005, CGQJ was found in possession of mirtazapine.
(e)In April 2006, a shiv was located in CGQJ’s cell.
(f)In August 2007, police were involved after CGQJ allegedly pushed a cell door towards a prison officer and acted in an abusive manner.
(g)In June 2008, police were involved after CGQJ allegedly assaulted another prisoner.
(h)In August 2010, a razor blade was found wrapped in tape and hidden in a jar.
(i)In February 2011, CGQJ was detected drinking a substance that appeared to be home brew from a sports bottle. Approximately eight litres of home brew was then discovered.
(j)In February 2011, CGQJ returned a positive urine sample.
(k)In June 2011, police were involved after CGQJ allegedly assaulted another prisoner.
(l)In May 2011, CGQJ was involved in an assault.
(m)In April 2012, police were involved after CGQJ allegedly stabbed another prisoner.
(n)In April 2013, CGQJ was involved in an assault.
(o)In June 2013, CGQJ was found in possession of burnt foil consistent with having been used for smoking drugs.
(p)In November 2013, CGQJ was involved in an assault.
(q)In February 2014, three litres of homebrew were located in CGQJ’s cell.
(r)In March 2014, a shiv was located on windowsill next to CGQJ’s bed.
(s)In December 2014, CGQJ was involved in an assault.
(t)In March 2016, CGQJ returned a positive urine sample.
(u)In May 2016, a buprenorphine strip was found in CGQJ’s pants.
(v)In January 2017, tablets and the makings of a syringe were located in CGQJ’s cell and he returned a positive urine sample.
(w)In November 2017, foil with three partial buprenorphine strips were located in CGQJ’s cell and he returned a positive urine sample.
(x)In December 2017, CGQJ was suspected of passing a buprenorphine strip to another prisoner.
(y)In January 2018, CGQJ twice returned a positive urine sample.
(z)In February 2018, CGQJ took ownership of multiple mirtazapine tablets found in a jacket.
(aa)In July 2018, a partial buprenorphine strip was found in CGQJ’s cell.
(bb)In August 2021, CGQJ returned a positive urine sample.
CGQJ denies owning, making, or using any shivs in prison. CGQJ’s evidence is that prison is a violent place and a prisoner who dobs on other prisoners becomes a target.
CGQJ admits to using unprescribed buprenorphine and sleeping pills in prison, and to drinking homebrew.
CGQJ expressed some regrets about some incidents, such as that in August 2007, and provided explanations for some others. He says that he has learned not to get involved in fights, even to break them up, and to manage his emotions better.
CGQJ has completed several programs whilst in prison. These include courses addressing drug and alcohol use, high intensity violence, anger management, communication skills, and consequence thinking. He has completed training in cleaning operations, warehousing and storage, and kitchen operations. He has been mentored through the African Visitation and Mentoring Program (AVAMP).
CGQJ’s detention has been challenging for him. His evidence is that detention is safer than prison and CCGJ has not been racially abused there, however drugs are still available. CGQJ is far from his family, and he feels that his mental health has deteriorated. CGQJ has not been involved in any violent incidents whilst in immigration detention. In December 2021, CGQJ was found with an unprescribed sleeping tablet in detention.
CGQJ has received support from Mr Conrad Tracey of Addiction Coaching Australia whilst in detention. Mr Tracey has generously given CGQJ pro bono access to an online drug rehabilitation program.
Mr Tracey gave evidence that he is not a practicing psychologist but has a background in psychology. His coaching is practical rather than clinical. It is focussed on harm reduction, rather than abstinence. However, Mr Tracey regards the first 90 to 120 days of abstinence from drugs as crucially important from a biochemistry and confidence perspective.
Addiction Coaching Australia’s program addresses issues such as breaking cravings and urges, identifying triggers, developing habits that stick, communication, setting boundaries, and self-discovery. Mr Tracey has also consulted with CGQJ.
Mr Tracey’s evidence is that CGQJ is engaged and self-aware. He has a positive mindset and is adaptive. CGQJ is currently in a challenging environment but has been shifting his thinking and behaviour.
In Mr Tracey’s opinion, CGQJ has a maladaptive approach to drugs. He has been seeking drugs, but not every day and he is not drug dependent. This means that CGQJ could live drug free in the right environment and with support.
Mr Tracey has high expectations of CGQJ. He believes that both behavioural and identity change are necessary for CGQJ if he is to contribute to society and become a leader in his community.
CGQJ’s evidence regarding his attitude to drugs and alcohol has changed over time. As late as his statement of 13 March 2024, CGQJ expressed a desire not to abuse drugs or alcohol in the community rather than abstain from drugs and alcohol. However, at the hearing CGQJ’s views against social drinking had firmed and he indicated strategies for avoiding drugs and alcohol.
CGQJ wants to continue his rehabilitation in the community, including consulting professionals. He is conscious that he must stay away from negative peers. He is firm that he would never carry a weapon again. CGQJ does not believe that he will reoffend.
CGQJ has extensive plans if he is release into the Australian community. He aims to commence employment immediately. CGQJ has had discussions with his brothers, Mr Zakaria and Mr Franco, about working with them. Such roles involve construction, warehousing, or couriering. CGQJ also wants to give back to the Australian community and act as a mentor with AVAMP.
CGQJ is deeply committed to his family, including his nieces and nephews, and much of his evidence is to this effect. CGQJ has maintained an ongoing relationship with his nieces and nephews throughout his lengthy period of imprisonment, followed by detention. In-person visits were common whilst CGQJ was imprisoned in Victoria. A consistent theme in CGQJ’s evidence is that he wants to be meaningfully involved in the lives of his nieces and nephews, provide them with support and advice when they require it, and support their parents.
CGQJ intends to live with his parents, Ms Nyandoup and Mr Angelo, if released into the Australian community. CGQJ’s parents are elderly and unwell. CGQJ wants to support them and his wider family, including providing financial support. CGQJ’s family motivate him to rehabilitate.
CGQJ gave evidence that he fears that he will be harmed if he is removed to South Sudan because of his Dinka ethnicity. He does not fluently speak Dinka or Arabic and he believes that he will be regarded as a foreigner. He would be homeless.
Ms Nyandoup is CGQJ’s mother. She is Dinka and Catholic and was born in Abyei, which is an area between Sudan and South Sudan. One of Ms Nyandoup’s sisters came to Australia and two of Ms Nyandoup’s sister went to America. Ms Nyandoup’s brother was killed in Sudan. She has no friends or family left there.
Ms Nyandoup’s evidence is that the family fled Sudan for Australia as refugees with her husband and eight of her children: sons Mr Zakaria, Mr Francis, Mr Franco, and CGQJ; and daughters Ms Regina, Ms Helena, Ms Achol, and Ms Bianca. Two other children died in Sudan prior to the family’s migration to Australia. They came for a better life, free of war, and were appreciative of the Australian government.
Following a period in Queensland, the family moved to Melbourne. Soon afterwards, in 2003, Mr Francis died in a car accident. Mr Franco was a passenger in the accident and developed psychosis. This car accident has had an enduring effect on the family.
Ms Nyandoup cares for her grandchildren; especially Miss Lavera, Master Nghot, Master Real, and Master Jordan. She also periodically cares for Ms Abok, Master Athuai, Master Nuer, and Master Ajuet. Ms Nyandoup is assisted by Mr Angelo, but she struggles both physically and financially.
Ms Nyandoup is unwell. In a report from Emmanuel Medical Centre dated 2 January 2018, Ms Nyandoup’s General Practitioner stated that she had a medical history including breast cancer, severe osteoarthritis of both knees, degenerative disease of the facet joint of the lumbar spine, chronic neck pain, gastroesophageal reflux disease, depression, and hypertension. In her oral evidence, Ms Nyandoup also stated that she suffered from dementia and that she is forgetful. Ms Nyandoup’s General Practitioner is of the opinion that it would be “extremely” difficult for her to travel to South Sudan if CGQJ was to be repatriated.
Ms Nyandoup’s evidence is that the impact of CGQJ remaining in detention would be hard and feel like punishment to her. Similarly, the whole family would be devastated if CGQJ were to return to South Sudan. CGQJ cannot speak Arabic or Dinka fluently, does not have any family or friends there, does not know the country, and cannot subsist.
Ms Nyandoup believes that CGQJ would be able to provide both physical and financial assistance if he were released into the community and lives in the family home.
Mr Angelo is CGQJ’s father. He is also Dinka and Catholic and was born in Khartoum in South Sudan. Mr Angelo lives with Ms Nyandoup, Miss Lavera, Master Jordan, and Master Real. Ms Helena and Ms Regina are the mothers of Master Jordan and Master Real. They visit periodically. Their fathers are not active in their lives. For cultural reasons, Mr Angelo believes that CGQJ believes that he will take on a father-like role to his nieces and nephews who do not have their fathers active in their lives.
Mr Angelo currently takes the children to school as it is difficult for his wife to do so. Mr Angelo wants CGQJ to live in the family home. Mr Angelo would welcome the financial contributions that CGQJ could make. Mr Angelo presently relies on the support of his children to pay bills.
Mr Angelo has previously had a stroke and issues with his heart and blood pressure. Mr Angelo is concerned about Ms Nyandoup’s health, and both would welcome help from CGQJ getting to medical appointments. They struggle at times with reliable communication whilst CGQJ is detained, but previously they regularly visited CGQJ in prison and took his nieces and nephews.
Mr Angelo’s three brothers and sister were all killed in Sudan. He fears that CGQJ would be harmed or hurt in South Sudan. Mr Angelo would not be able to visit, nor could he afford to support CGQJ.
Miss Lavera is CGQJ’s niece and she lives with CGQJ’s parents. Miss Lavera observed that CGQJ’s ongoing absence is hard on them. Miss Lavera’s father is in gaol. She sees her mother every two weeks. Miss Lavera misses her uncle and loves him.
Miss Lavera wants CGQJ to play an important part in her life and to be present at significant events, such as at Christmas. She aspires to be a nurse. Miss Lavera’s contact with CGQJ is more difficult since he has been transferred into immigration detention, having to rely on electronic means of communication rather than in-person visits. She last saw her uncle in person a couple of years ago.
Mr Zakaria is CGQJ’s older brother. Mr Zakaria gave evidence and described his difficult upbringing in Sudan, including the recruitment of his late elder brother into the army aged 12 years. Coming to Australia through Townsville and Brisbane to Melbourne presented numerous schooling and social challenges, but living in Australia was also a dream come true.
Mr Zakaria described impact of losing his brother in the car accident in 2003 and the trauma that caused. Mr Zakaria described CGQJ as being easily influenced by his peers when he was young and mixing in the wrong crowd at the time of the murder. Mr Zakaria believes that CGQJ has matured since the murder and has rehabilitated. He made a terrible mistake in committing the murder, he has bettered himself since then, and Mr Zakaria believes that CGQJ would never do such a thing again.
Mr Zakaria is employed by a freight specialist and would assist his brother with employment if CGQJ were returned to the community. Indeed, Mr Zakaria is confident that his employer would give CGQJ work. Mr Zakaria says that CGQJ would have a large amount of family and community support to assist him.
Mr Zakaria’s evidence is that CGQJ has good relationships with his nieces and nephews, especially Ms Abok. They communicate regularly electronically through a family WhatsApp group. However, CGQJ’s ongoing detention has been hard on Mr Zakaria and the entire family. Mr Zakaria is concerned for CGQJ’s health if he remains detained.
Mr Zakaria returned to Sudan in 2011 for two weeks. It was expensive and there was a lot of tribal conflict and was not safe. He has deep concerns as to how CGQJ would practically survive in South Sudan on a day-to-day basis, in addition to it effecting his mental health. Conversely, if CGQJ were released into the Australian community then he would be able to provide financial and physical support to their parents. This would relieve Mr Zakaria of a significant burden. Mr Zakaria recognised the risk of drugs and alcohol to CGQJ and would be able to support him.
Mr Zakaria’s daughter, Ms Abok, gave evidence. CGQJ is her favourite uncle who has had a positive impact on her life and has taught her the value of patience. Ms Abok remembers CGQJ from her early childhood. Ms Abok now lives in Canberra and has grown up with her uncle being incarcerated. She would like him home. Ms Abok is concerned for CGQJ’s welfare in immigration detention and the potential toll on her, and her wider family, if he were removed from Australia. Ms Abok gave evidence that they had no family left in South Sudan and that there was no work for CGQJ there in a corrupt economy.
CGQJ has a close and strong relationship with Mr Jayden, who has provided statements in support of his uncle. He is a son of Ms Regina and CGQJ helped care for him when he was a baby. Mr Jayden described the hostile situation on South Sudan and his concerns for his uncle given that the wider family is in Australia. Mr Jayden is concerned for his grandmother, Ms Nyandoup. Mr Jayden had briefly lived in the United States but returned to Australia. CGQJ would like to assist Mr Jayden with his career and his family.
CGQJ is supported in his application by many members of the community.
Ms Mercy Akongo provided a statement dated 13 March 2018, when she was the Senior Project Officer at Jesuit Social Services. Her role was to coordinate and manage AVAMP. This program provides visitation and mentoring services to people of African background both in prison and after their release. CGQJ has been participating in AVAMP since May 2016.
Mr Jeremie Nyetam gave further evidence about AVAMP and how he would be able to assist CGQJ on a practical level to assist to transition him back into the community. Mr Nyetam noted CGQJ’s positive community organising whilst imprisoned. Mr Nyetam regard’s CGQJ’s family as being very supportive.
Ms Anna Hopkins provided evidence in support of CGQJ. Ms Hopkins speaks with CGQJ regularly and interacts with him on social media. CGQJ has expressed to Ms Hopkins his interest in engaging with AVAMP and becoming a mentor to young people. Ms Hopkins has fears for CGQJ if he is returned to South Sudan. Ms Hopkins believes that CGQJ has a deep-rooted attachment to Australia. His family, especially his young nieces and nephews, and friends would be left with a void if he were removed. Ms Hopkins is committed to supporting CGQJ and believes he has demonstrated a genuine desire for redemption. Ms Hopkins is prepared to offer him paid maintenance, renovation, and gardening work.
Ms Hopkins, together with Mr Matthew Albert, provided evidence of CGQJ’s participation in the Sudanese Australia Integrated Learning Program (SAIL Program). Prior to his arrest in 2003, CGQJ had been a regular and punctual attendee. CGQJ had been polite and deferential, caring and responsible. He had been distressed and withdrawn after the death of his brother in the car accident.
Mr Albert gave detailed evidence regarding his knowledge of CGQJ, his family, and conditions in South Sudan. Mr Albert has long known CGQJ and his family and has refreshed his acquaintance with CGQJ in recent years. Mr Albert observed the effect of the death of Frances on CGQJ’s family. Mr Albert also attended CGQJ’s trial and sat with his mother. CGQJ’s family would be absolutely devastated if he were removed to South Sudan. He is dedicated to his family and has a very warm relationship with his nieces and nephews.
Mr Albert believes that CGQJ’s crime of murder can be explained by his youth and profound trauma, which caused anger. The crime of murder that CGQJ committed was horrendous, but CGQJ was in a very dark place and was a profoundly troubled teenager.
Mr Albert says that he has observed a change in CGQJ. He is now a middle-aged man, who has grappled at a deep level with the murder. CGQJ has engaged maturely with Mr Albert when they have discussed CGQJ’s victim. CGQJ and Mr Albert have also discussed CGQJ’s strategies for staying away from drugs and alcohol if he is released into the community.
Mr Albert believes that CGQJ’s incidents in prison are situational and do not reflect how CGQJ would behave in the wider community. Mr Albert’s evidence is to the effect that CGQJ is now committed to becoming a productive member of the Australian community and that it would be a loss to the community if CGQJ were to remain in detention or be removed.
Mr Albert gave evidence about his knowledge of the current situation in South Sudan. Mr Albert is of the view that the next few years in South Sudan will be difficult due to a developing power vacuum that will lead to major conflict. In the event of such conflict, CGQJ is of fighting age and may be forcibly recruited or at least otherwise caught up in events. Mr Albert expressed his concern about CGQJ’s survival if he is removed to South Sudan.
Mr Albert trusts CGQJ and would gladly and immediately give CGQJ employment doing gardening if he were released into the Australian community. Mr Albert would welcome CGQJ back into the SAIL Program, where CGQJ could mentor others in the South Sudanese Australian community. This would complement CGQJ’s participation in AVAMP.
Mr William Crawford knows CGQJ through the SAIL Program. He has also known CGQJ’s family for over 20 years. He is unwavering in his offer to provide support to CGQJ.
Mr Crawford gave evidence regarding CGQJ’s moral character and the sincerity of his desire to do good and help others. Mr Crawford is a lawyer but has spent a large amount of time in drug outreach and youth work roles. Based on this experience, Mr Crawford’s opinion is that CGQJ’s lived experience as a migrant and an offender would have an impact on South Sudanese youth if CGQJ were allowed to counsel them away from criminality.
Mr Crawford expressed an opinion, based on his experience, that CGQJ presented as a very low risk to the community. Mr Crawford was of the view that CGQJ’s propensity for violence and moral character had been successfully rehabilitated. Mr Crawford readily acknowledged that he had not discussed drug use with CGQJ, nor knew details of violent incidents in prison. Nevertheless, Mr Crawford did not think that the use of buprenorphine and other illicit depressants would give rise to further violent offending. Nor should drug use itself be seen as reflecting bad character. Rather, the risk of reoffending in the drug seeking behaviour is such that typically gives rise to dishonesty and property offences.
Like Mr Crawford, Ms Bridgid Cowling also knows CGQJ’s family through the SAIL Program. She first met them approximately 20 years ago. Ms Cowling worked as a volunteer and came to understand the trauma that many in the South Sudanese community had experienced. Ms Cowling knew CGQJ’s co-offenders and attended their trial. Ms Cowling regards CGQJ’s family as loving and well-settled. She is willing to assist CGQJ, particularly by way of making introductions to people who may be able to offer employment.
Mr Ambrose Mareng is the General Manager of the Sudd Foundation. He came to know CGQJ’s family in 2012 and, although he has not met CGQJ, he believes that CGQJ has demonstrated a change in character and a commitment to rehabilitation. Mr Mareng gave evidence that CGQJ would be subject to extreme physical risk and social harm if he were removed to South Sudan. Conversely, were CGQJ to remain in Australia then he would be able to positively contribute to his community.
Mr Mareng’s evidence raises issue of fairness, rehabilitation and community in Australia’s immigration system. Mr Mareng believes that the removal of CGQJ would not only affect him and his family, but also the broader community. It would serve to undermine the work of community organisations that seek to build social cohesion. Mr Mareng’s concern is that young black migrants come to feel that they do not belong in Australia.
Ms Nyibol Gatlwak gave evidence regarding the Sudd Foundation and NAS Recovery Centre and the assistance that CGQJ could access. Ms Gatlwak has lengthy experience in the youth justice system and as a community support worker. She is a believer in forgiveness. Ms Gatlwak knows CGQJ’s family and she offered support in transitioning CGQJ back to the community.
Mr Bol Machar is the President for the Dinka Community Union of Victoria and Chair of the Board of Directors of the Sudd Foundation. His evidence is that CGQJ has demonstrated remorse and is now a responsible person. Mr Machar believes that CGQJ will be placed at high risk if removed to South Sudan due to the serious and deadly conflict there. He has been communicating with CGQJ and his family and offering support through his community organisations. This offer of support is not affected by any prison incidents that CGQJ was involved in, or his risk of reoffending.
Whilst imprisoned, CGQJ completed several behavioural and drug and alcohol programs. This included the Intensive Drug Program in May 2008. CGQJ obtained also obtained vocational qualifications in cleaning, hospitality, and warehousing. He has been active in sport, which has caused him minor injuries.
Dr Paul Grech, a consultant clinical pathologist, provided an assessment report dated 28 December 2017. Dr Grech concluded that CGQJ appears to be largely rehabilitated. In that report, Dr Grech recounted the background facts of CGQJ’s act of murder. That included an account, presumably given by CGQJ, that CGQJ grabbed a knife from his victim prior after being attacked and before stabbing and killing him. This differs from an account given in CGQJ’s statements of 12 January 2023 and 13 March 2024 that he took the knife from a friend, prior to stabbing the victim. It also differs from CGQJ’s statement of 5 June 2024 where he says he did not have a clear memory of who owned the knife or brought it to the scene of the crime.
The Tribunal notes that CGQJ’s oral evidence now is that the knife was his and that the victim was not responsible for his own death.
Dr Grech’s report also includes a statement that CGQJ has been drug-free since 2003 and that this is of significance. In his evidence, CGQJ clarified that he had meant marijuana free and that he had not been thinking in terms of buprenorphine or sleeping pill abuse.
Dr Grech’s report outlines CGQJ’s medical history, including his alcohol and substance abuse. CGQJ started drinking regularly as an adolescent. Dr Grech wrote that CGQJ smoked cannabis four to five times a week from the age of 15 years. However, in his evidence CGQJ clarified that this was four to five joints before going out with friends and that his marijuana use was largely contained to the weekends. CGQJ also clarified that his alcohol and marijuana usage increased after his brother died.
Mr Patrick Newton is a Clinical and Forensic Psychologist and was engaged by CGQJ to provide an assessment and to give evidence. Mr Newton provided reports dated 8 May 2024 and 30 August 2024.
Mr Newton provided a substantial history of CGQJ, drawing from CGQJ’s own accounts and other material. In describing CGQJ’s mental health in the 8 May 2024 report, at paragraph [24], Mr Newton described CGQJ has having a “vulnerability to stress and a heightened ‘base-rate’ of anxiety”. Mr Newton reported that CGQJ does not have a diagnosed mental disorder, but at paragraph [53] Mr Newton noted that CGQJ “reported mild symptoms of depression” and at paragraph [56] Mr Newton opined that CGQJ was probably suffering “marked grief at the time of the murder” due to the death of his brother. Mr Newton then opined that:
the disinhibiting effects of alcohol and cannabis intoxication, combined with the influence of negative peers and persisting immaturity, are the main factors that precipitated the breakdown of [CGQJ’s] behavioural controls at the time of the murder.
Mr Newton detailed CGQJ’s substance use from the age of 15 years through December 2021 when he was found in possession of a sleeping pill whilst in immigration detention. At paragraph [66] of his 8 May 2024, Mr Newton opined that CGQJ’s use of alcohol and cannabis was sufficiently intense to diagnose a substance-use disorder that is in remission in a controlled environment. CGQJ’s harmful use of various prescription medications is also in remission in a controlled environment.
At paragraph [37] of his 8 May 2024 report, Mr Newton expressed concern that CGQJ had continued to use drugs after completing a prison-based drug education course. At paragraph [64], Mr Newton also raised concerns about CGQJ’s ability to learn from his relapses whilst recovering from his drug and alcohol problems. Materially, Mr Newton wrote at paragraph [64]:
Reinforcing these concerns, [CGQJ] told me that notwithstanding the litany of problems which heavy drinking had caused in his life, he intended to engage in social drinking of alcohol if he were to return to the community. In my experience this would be very unwise. Particularly in the context of ongoing issues with [CGQJ’s] harm-minimisation and relapse-prevention skills, such drinking would exponentially increase the risk of further bouts of problem drinking. Furthermore, given the nexus between his alcohol consumption and his violent offending, such a relapse would result in a considerable increase in the risk of recidivism on [CGQJ’s] part (both in regard to violent offending and in relation to general offending as well).
This issue was traversed in cross-examination and Mr Newton did not resile from the accuracy of this evidence as it was written at the time. The Tribunal notes though that in his report of 30 August 2024, at paragraph [23], Mr Newton noted much improved insight by CGQJ into his drug-related issues and need for treatment. At paragraph [22] of that report, Mr Newton wrote:
While it is clear that [CGQJ’s] recovery has not yet been tested in the community, the absence of further substance-related incidents and his willingness to comply with stringent monitoring conditions provide some reassurance that in a community environment he would be able to implement the plans he has made.
Mr Newton regarded CGQJ as having made good progress towards his anger-management and violence-remediation and noted that prison was a tense environment where coping strategies can be tested. Mr Newton regards CGQJ as having positive prospects for rehabilitation.
Mr Newton assessed CGQJ’s risk of recidivism, utilising the HCR-20. In Mr Newton’s opinion, at paragraph [31] of his 30 August 2024 report, CGQJ presents at a “low-moderate risk of violent recidivism and at low risk of general recidivism”. These risks increase if CGQJ associates with antisocial groups or abuses drugs or alcohol or finds himself without access to effective supports.
THE CHARACTER TEST AND DIRECTION 110
The Tribunal is satisfied that CGQJ does not pass the character test due his substantial criminal record. To revoke the mandatory cancellation of CGQJ’s visa under s 501CA(4)(b) of the Act, the Tribunal must be satisfied that there is another reason to do so, considering Direction No 110 (‘the Direction’). Direction 110 sets out several Primary Considerations and Other Considerations. These are addressed under their respective headings below.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
The Nature and Seriousness of the Applicant’s Conduct to Date
Sub-paragraph 8.1.1(1)(a)(ii) of the Direction provides that violent crimes against children are viewed very seriously by the Australian Government and the Australian community. CGQJ has committed a crime of murder, where the deceased victim was an adolescent aged 17 years. The facts of that murder, as contained in Kaye J’s sentencing remarks, constitute very serious offending. CGQJ was imprisoned. His sentence of 18 years imprisonment, with a non-parole period of 14 years, reflects the objective seriousness of his offending.
Furthermore, and considering sub-paragraph 8.1.1(1)(e), CGQJ committed the offence of possessing a controlled weapon without excuse prior to his imprisonment for murder. Although the exact date of this offending is not clear, it was proximate to the murder and exhibited a sharp increase in the seriousness of his offending.
Sub-paragraph 8.1.1(1)(b)(ii) of the Direction provides that crimes committed against vulnerable members of the community are considered by the Australian Government and the Australian community to be serious.
CGQJ murdered an adolescent, who the Tribunal considers to be a vulnerable member of the community by virtue of his age. By extension of that reasoning though, CGQJ was also a vulnerable member of the community by virtue of his age when he committed the murder. Considering the finding made regarding sub-paragraph 8.1.1(1)(a)(ii) that CGQJ’s offending was very serious, and the evidence already summarised, it is unnecessary to further labour the seriousness of CGQJ’s offending.
For completeness, the current impact of CGQJ’s offending on those victims who assisted the deceased (and any other victims) is unknown to the Tribunal. The cumulative impact of CGQJ’s repeated offending is unclear and cannot be meaningfully assessed on the evidence before the Tribunal. CGQJ has not provided false or misleading information to the Department. There is also no evidence that CGQJ has re-offended since being formally warned about the consequences of further offending in terms of his migration status. There is no evidence that CGQJ has committed an offence, or other serious conduct, in another country. The Tribunal therefore regards these considerations to be irrelevant.
Given the very serious nature of CGQJ’s offence of murder, the considerations arising from paragraph 8.1.1(1) of the Direction weigh very heavily against the revocation of the cancellation of CGQJ’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
In considering the need to protect the Australian community from harm, paragraph 8.1.2(1) of the Direction provides that the Tribunal 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. This paragraph expressly states that “Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable”.
Paragraph 8.1.2(2) then provides that in assessing the risk that may be posed by CGQJ to the Australian community, the Tribunal must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the non-citizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
CGQJ’s offending is very serious and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated is unacceptable. However, the evidence does not point to a specific risk that CGQJ will again commit murder but rather it points to violent and general recidivism.
The Tribunal accepts Mr Newton’s evidence that CGQJ currently presents at a low-moderate risk of violent recidivism and at low risk of general recidivism. This evidence, and the analysis behind it, is broadly consistent with the other evidence before the Tribunal.
CGQJ has a maladaptive approach to drug use. This drug use may be situational, but it is maladaptive all the same. The Tribunal is reasonably satisfied that CGQJ’s risk of reoffending will increase if he uses unprescribed drugs or alcohol.
The Tribunal places weight on the evidence of Mr Newton, particularly regarding alcohol. The evidence before the Tribunal is that it would be unwise for CGQJ to ever drink alcohol again given the litany of problems which heavy drinking has caused him. This is a realisation that CGQJ seems also to have arrived at, however the Tribunal is concerned that this realisation has only occurred very recently.
The Tribunal has been assisted by Mr Crawford’s evidence regarding the criminogenic factors of illicit drug use. The Tribunal accepts that illicit drug use is not of itself determinative of moral character, which is supported by Mr Tracey’s evidence. The Tribunal is also broadly accepting of the proposition that the use of illicit depressants does not generally give rise to violent offending of itself, as compared to stimulants. However, the Tribunal is concerned that drug seeking behaviour can give rise to dishonesty and property offences and property offences can involve incidental acts of violence with unintended consequences.
CGQJ is aged 38 years. If his visa cancellation is revoked, he would be at liberty to socialise with whomever he chose, be they pro-social or anti-social. Contact with anti-social people may at times be unavoidable in the workplace and wider community. Alcohol would be legally available.
CGQJ evidence is clear that he wishes to socialise with his family and pro-social peers. It is unnecessary to recount the evidence that has already been summarised regarding the comprehensive supports that CGQJ’s family, friends, and community wish to provide for him. It is unnecessary to labour the length of time CGQJ has resided in Australia, the nature of his cancelled visa, and the role that CGQJ desires to play in the South Sudanese community. It is sufficient to note that CGQJ’s risk of recidivism would increase if he were to associate with anti-social people.
The Tribunal is satisfied that CGQJ has achieved a level of rehabilitation since the murder, although most of that rehabilitation is recent. CGQJ’s sustained involvement in numerous incidents in prison are not indicative of a lengthy commitment to rehabilitation. CGQJ used unprescribed buprenorphine and sleeping pills in prison, and drank homebrew, despite having completed several courses. CGQJ’s approach to drugs remains maladaptive.
It is material that CGQJ has not been involved in any violent incidents whilst in immigration detention. This likely reflects the less violent nature of detention, but it likely also reflects CGQJ’s efforts to rehabilitate. CGQJ has been found with an unprescribed sleeping tablet in detention. However, he also seems to have been abstinent in recent times. The Tribunal places weight on Mr Tracey’s evidence regarding the first 120 days of abstinence from drugs as being crucially important, and the evidence indicates that CGQJ has achieved this goal.
The Tribunal notes the opinion of Dr Grech that CGQJ appears to be largely rehabilitated. The Tribunal does not place weight on this conclusion due to the inconsistencies in the facts relied upon by Dr Grech and the evidence of CGQJ in these proceedings. This finding is not a reflection on Dr Grech’s skill and ability nor a professional criticism.
Furthermore, the Tribunal is guarded at accepting broad assertions from family, friends and community members that CGQJ has been rehabilitated. The Tribunal does not impugn the honest beliefs contained in this evidence or diminish their personal observations in any way. The Tribunal has not disregarded this evidence. However, the Tribunal places significant weight on the professional opinions of Mr Newton and Mr Tracey. The Tribunal also places weight on the opinions of Mr Crawford, noting his professional experience in drug outreach roles.
In considering whether to refuse to grant a visa to CGQJ, under paragraph 8.1.2(2)(c) of the Direction the Tribunal is directed to the risk of harm that may be affected by the duration and purpose of the CGQJ’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
It is obviously beyond the jurisdiction of the Tribunal to grant a short stay visa, and such considerations are irrelevant. If the Tribunal revokes the cancellation of CGQJ’s Class BA Subclass 200 (Refugee) visa, CGQJ would be able to remain in Australia permanently and he would be at liberty in the Australian community.
In relatively recent times, CGQJ has displayed an admirable trajectory in his course of rehabilitation. CGQJ’s moral character seems to have improved with his self-awareness, despite the hardships of immigration detention. The Tribunal does not doubt CGQJ’s sincerity to do good and help others.
Unfortunately, CGQJ does not yet present at an acceptably low risk of recidivism if released back into the Australian community. He risks relapse into alcohol, or drugs. On the evidence before it, the Tribunal is reasonably satisfied that there is an unacceptable risk that CGQJ may re-offend if released.
Noting the risk to the Australian community should CGQJ commit further offences, paragraph 8.1.2 of the Direction weighs very heavily against the revocation of the cancellation of CGQJ’s visa.
Accordingly, Primary Consideration 1 weighs very heavily against the revocation of the cancellation of CGQJ’s visa when considered wholistically.
Conclusion: Primary Consideration 1
Primary Consideration 1 weighs very heavily against the revocation of the cancellation of CGQJ’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
“Family violence” is defined in paragraph 4(1) of the Direction to mean violent, threatening or other behaviour that coerces or controls a member of the person’s family or causes that family member to be fearful. The Tribunal makes no findings of family violence. Therefore, this consideration is not relevant.
Conclusion: Primary Consideration 2
Primary Consideration 2 is not relevant.
PRIMARY CONSIDERATION 3: THE STRENGTH NATURE AND DURATION OF TIES TO AUSTRALIA
Paragraph 8.3(2) of the Direction points to a consideration of the strength, nature and duration of any other ties that CGQJ has to the Australian community. Considering sub-paragraph 8.3(2)(a) of the Direction, CGQJ has resided in Australia since he arrived as an 11-year-old boy, with his family, on a refugee visa. Prior to his imprisonment for murder at the age of 17 years, CGQJ was active in SAIL and the South Sudanese community.
Indeed, the evidence of Mr Hopkins is that he was polite, deferential, caring, and responsible. CGQJ was understandably distressed and withdrawn after the death of his brother in the car accident. This observation contrasts to the murderer who, Kaye J observed, “displayed manifest pleasure” when stabbing the deceased.
An explanation for this contrast is found in Mr Newton’s evidence, who reported that CGQJ was suffering “marked grief at the time of the murder”. The evidence of Mr Albert, Mr Crawford and Ms Cowling corroborated the evidence of CGQJ and his family that the death of Mr Frances had a devastating impact upon CGQJ and his family.
CGQJ desires to become a leader in his community, through programs like AVAMP. However, he has not had that opportunity in anything more than a preliminary way whilst imprisoned and detained. Although CGQJ has actively been involved in sport and other positive activities whilst imprisoned and detained, this positive conduct is outweighed by his involvement in numerous incidents. Similarly, CGQJ’s positive contribution to the community prior to the murder is outweighed by the particularly callous circumstances of that murder.
In the summary of evidence, the Tribunal has named numerous immediate family members who will be impacted by the Tribunal’s decision in this matter. All these family members are either Australian citizens, permanent residents, or have a right to remain in Australia. This is relevant for the purposes of sub-paragraph 8.3(1) of the Direction.
Ms Nyandoup and Mr Angelo have both provided compelling evidence of the effect of the Tribunal’s decision on them, particularly if CGQJ is removed from Australia. It is unnecessary to labour the evidence that both CGQJ’s parents gave of the positive aspects for them if CGQJ’s visa cancellation is revoked, compared with further uncertainty of possibly remaining in immigration detention or potential removal to South Sudan.
There are very clear emotional, practical, and financial benefits for CGQJ’s parents were CGQJ to return to the family home. Their health may also improve. These benefits are corroborated by the evidence of Mr Zakaria, Ms Abok, Miss Lavera, and Mr Jayden. In the same vein, there are broad emotional, practical and emotional benefits to CGQJ’s entire family unit if the cancellation of his visa is revoked. The converse is true if the decision under review is affirmed.
Sub-paragraph 8.3(2)(b) of the Direction similarly directs the Tribunals to consider the strength, duration and nature of any family or social links with Australian citizens, permanent residents and/or people who have an indefinite right to remain in Australia. Of note, extensive evidence was given about CGQJ’s social links with relevant people through AVAMP and the SAIL Program by Ms Akongo, Mr Nyetam, Ms Hopkins, Mr Albert, Mr Crawford, and Ms Cowling. Similarly, Mr Mareng, Ms Gatlwak and Mr Machar gave evidence about the Sudd Foundation.
The Tribunal notes Mr Mareng’s belief that the removal of CGQJ would affect the broader South Sudanese community, who are part of the broader Australia community. Removal of CGQJ may indeed undermine the work of community organisations that seek to build social cohesion.
Placing weight on Mr Tracey’s evidence regarding CGQJ’s leadership aspirations, and Mr Albert’s confidence that this would be possible, the removal of CGQJ may deprive community organisations of a potential future leader. Of course, the converse is also true, if CGQJ were to reoffend as he would have proven to be a poor role model.
Placing weight on the impact of the Tribunal’s decision on CGQJ’s parents in particular, this consideration weighs heavily in favour of the revocation of cancellation of his visa.
Conclusion: Primary Consideration 3
Primary Consideration 3 weighs heavily in favour of the revocation of cancellation of CGQJ’s visa.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
Paragraph 8.4(1) of the Direction obliges the Tribunal to consider whether a non-revocation decision is in the best interests of a child affected by the decision. Paragraph 8.4(2) then provides that, for their interests to be considered, the relevant children must be under 18 years of age at the time when a decision is being made.
CGQJ’s relationships with his nieces and nephews have been encouraged by his family over many years. At times, various nieces and nephews have visited CGQJ in prison. Visitations have been more difficult since CGQJ has been interstate in detention.
The summary of evidence contains details of CGQJ’s enduring relationship with his nieces and nephews, the following of whom are relevant children: Master Athuai, Miss Lavera, Master Nghot, Master Nuer, Master Real, Master Ajuet, Master Jordan, and Miss Paula. The summary of evidence need not be repeated.
Having regard to the age and maturity of Miss Lavera, and the content of her evidence, the Tribunal is satisfied that CGQJ plays an active role in the lives of his nieces and nephews who are minor children in Australia. His contact with all these children, either in person or electronically, has been meaningful proportional to their age. The Tribunal places weight upon this, in accordance with sub-paragraph 8.4(4)(a) of the Direction.
For the purposes of sub-paragraph 8.4(4)(d) of the Direction, the Tribunal considers the likely effect of CGQJ’s physical separation from these minor children to be detrimental to their relationship with CGQJ. This is particularly so regarding the interests of Miss Lavera, Master Nghot, Master Jordan, and Master Real.
Paragraph 8.4(3) provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ. The Tribunal notes that the interests of Miss Lavera, Master Nghot, Master Jordan and Master Real differ from the other minor children as CGQJ intends to live with them in his parent’s home if he is returned to the Australian community.
CGQJ has expressed a strong desire to be a positive influence in the lives of his nieces and nephews and to act as their carer as required. This is relevant for the purposes of sub-paragraph 8.4(4)(b) of the Direction. It is also particularly relevant for Master Nghot, Master Jordan and Master Real who have absent paternal figures in their life, which CGQJ may fill. This is relevant for the purposes of sub-paragraph 8.4(4)(e) of the Direction.
The Tribunal does not doubt the genuineness of CGQJ’s desire but is guarded in accepting its immediate value as CGQJ has no recent practical experience in a caring role of children of various ages. The difficulties of such a role are not to be underestimated, particularly when balanced with employment and other family commitments. Nevertheless, there is scope for all of CGQJ’s nieces and nephews who are minor children to benefit from his physical presence in their lives. This is particularly so for Miss Lavera, Master Nghot, Master Jordan and Master Real.
For completeness, there is no evidence before the Tribunal that CGQJ’s prior conduct has had a negative impact on any child within his family. Similarly, the Tribunal is not concerned by any negative impact on any child due to CGQJ’s likely future conduct.
There is no evidence before the Tribunal that any minor child considered has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by CGQJ, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally. There is also no evidence before the Tribunal that any minor child has suffered or experienced any physical or emotional trauma arising from CGQJ’s conduct.
Considering the totality of the evidence, the Tribunal is satisfied that the best interests of minor children in Australia affected by this decision weigh heavily in favour of the revocation of cancellation of CGQJ’s visa.
Conclusion: Primary Consideration 4
Primary Consideration 4 weighs heavily in favour of the revocation of cancellation of CGQJ’s visa.
PRIMARY CONSIDERATION 5: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. CGQJ has breached this expectation through his criminal conduct.
Paragraph 8.5(2) directs that non-revocation of the mandatory cancellation of a visa may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa. Paragraph 8.5(2)(c) points to the community expectation that the Australian Government can and should cancel the visas of non-citizens if they raise serious character concerns through the commission of serious crimes against children or other vulnerable members of the community. Although this expectation is not determinative, it forms a meaningful part of the Tribunal’s evaluative process.
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.
In assessing the weight attributable to Primary Consideration 5, the Tribunal places weight on the fact that CGQJ murdered an adolescent. He was convicted for his offending and imprisoned. The sentencing remarks of Kaye J need not be repeated.
Weighty countervailing considerations include the fact that CGQJ was also aged 17 years at the time he committed the crime of murder and was mourning the loss of his brother. He has taken meaningful steps towards rehabilitation in recent times, with some success. CGQJ has resided in Australia since he was aged 11 years, having arrived with his family on a refugee visa. His family remains highly supportive of him. CGQJ is also a long-standing member of the South Sudanese community in Australia.
Notwithstanding all countervailing considerations, the Tribunal is reasonably satisfied that the expectations of the Australian community as a whole weigh very heavily against the revocation of the cancellation of CGQJ’s visa given his very serious offence of murder.
Conclusion: Primary Consideration 5
Primary Consideration 5 weighs very heavily against the revocation of the cancellation of CGQJ’s visa.
OTHER CONSIDERATIONS
The Tribunal turns to the Other Considerations listed at paragraph 9(1) of the Direction, including other considerations made by CGQJ during proceedings, under the headings below.
(a) Legal consequences of this decision
It has been submitted that there are dire legal and human consequences for CGQJ if the Tribunal does not revoke the cancellation of his Class BA Subclass 200 (Refugee) visa.
The Tribunal has a significant body of evidence before it that it would not be safe for CGQJ to return to South Sudan due to his Catholic religion and Dinka ethnicity. Concerns have been raised that CGQJ may be conscripted or killed were he returned to South Sudan. The evidence of Mr Mathew Albert put these concerns in a thoughtful and considered manner and linked them to ongoing instability in South Sudan due to the frailty of its political leadership.
Mr Zakaria raised concerns that his younger brother may be kidnapped or held for ransom if he were returned to South Sudan, which the Tribunal places weight upon. CGQJ’s parents also understandably expressed deep worry for their son’s safety if he were returned to South Sudan. The evidence suggests that CGQJ may suffer in South Sudan for his Australian experience. The evidence before the Tribunal also suggests a prospect of harm if CGQJ were returned to South Sudan, which in turn raises non-refoulement considerations.
The Tribunal notes CGQJ’s submission that he may be stateless, and that South Sudan may not recognise him as a citizen. This is despite CGQJ being of Dinka extraction. There is varying evidence before the Tribunal as to CGQJ’s place of birth, which he had thought to be Khartoum in Sudan but now he understands it to be Wau in South Sudan. There is a lack of supporting documentation to assist the Tribunal to ascertain CGQJ’s citizenship status, although CGQJ seems to be a de jure citizen of South Sudan with a right of return. From the submissions, it seems unlikely that CGQJ is entitled to Sudanese citizenship, but the Tribunal is not able to be reasonably satisfied on that issue.
CGQJ has not made an application for a protection visa. It is open to him to do so and to have any such application comprehensively assessed by a primary decision maker. This is a separate, and quite different, administrative process to the present hearing de novo and merits review. The Tribunal does not pre-empt what the outcome of a protection visa application may be and nor does it entertain any notion that the process may be futile.
Unlike the Tribunal, a departmental primary decision maker may make positive inquiries regarding CGQJ’s citizenship status thorough embassies or non-government organisations. It is also open to CGQJ to do the same as part of an application process. The outcome of any such inquiries would be instructive prior to embarking on an analysis of South Sudanese nationality law in the manner of Galuak and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 2301.
Having considered CGQJ’s representations and Plaintiff M1/2021 v Minister for Home Affairs,[3] the Tribunal chooses to proceed on the basis that if and when CGQJ applies for a protection visa, any protection claims he has will be assessed before consideration is given to any character concerns associated with him. This includes non-refoulement considerations. In proceeding in this way, the Tribunal acknowledges that CGQJ may remain an unlawful non-citizen and that steps may be taken to remove him from Australia if he does not apply for a protection visa. The Tribunal is also mindful of the uncertainty that an application for a protection visa may cause on CGQJ and his family and community.
[3] [2022] HCA 17.
The evidence before the Tribunal does not reasonably satisfy it that CGQJ has already suffered any form of unlawful punishment. The severity of his imprisonment was proportionate to his crime of murder and conduct whilst imprisoned. Immigration detention is not punishment, despite misgivings from witnesses to the contrary.
An effect of NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs[4] is that CGQJ cannot be indefinitely detained. The Tribunal is not reasonably satisfied that CGQJ will be indefinitely detained (or refouled) because of this decision. Were CGQJ issued a bridging visa with conditions and released into the Australian community in a strictly controlled manner pending the outcome of any protection visa application, this may indeed be objectively reasonable given his risk of reoffending. However, the prospect of this is currently hypothetical and the Tribunal cannot apportion it weight in any meaningful way.
[4] [2023] HCA 37.
The Tribunal is not reasonably satisfied on the evidence before it that any decision to affirm the decision under review would be inconsistent with the laws, policies and principles to which Australia ascribes. The uncertainty of detention is difficult for CGQJ and his family and community, but CGQJ has also achieved a level of rehabilitation whilst in detention.
Accordingly, the legal consequences of the Tribunal’s decision in this matter weighs neutrally.
(b) Extent of impediments if removed
CGQJ is aged 38 years and is in relatively good physical health. He has suffered some minor sporting injuries, but the evidence is clear that CGQJ can work in physical industries such as construction and warehousing.
The Tribunal has concerns regarding CGQJ’s mental health if he is removed, particularly in circumstances where he may not physically see most members of his family again. CGQJ has unresolved issues with drug and alcohol abuse, and these may compound any mental health issues. Noting Mr Newton’s evidence, the Tribunal is reasonably satisfied that CGQJ would suffer a mental health crisis if he were removed to South Sudan.
CGQJ’s Catholic religion and Dinka ethnicity have already been considered in the context of the legal consequences of this decision, but they are relevant here. On the evidence before it, the Tribunal is satisfied that CGQJ’s religion and ethnicity would pose a cultural barrier to CGQJ in some parts of South Sudanese society. This would be compounded by CGQJ’s inability to speak Dinka fluently, at least in the short-term. This in turn would affect the social, medical and economic support available to CGQJ in the context of what is generally available to other citizens of South Sudan.
It is clear in this matter that there are significant impediments that CGQJ may face if he were removed to South Sudan. He would struggle with basic living standards in the short-term, and possibly longer. On balance, therefore, this consideration weighs very heavily in favour of the revocation of the cancellation of CGQJ’s visa.
(c) Impact on Australian business interests
There is no evidence that Australian business interests would be compromised were CGQJ to be removed. Accordingly, this consideration to not relevant.
CONCLUSION
In then considering whether there is another reason to make the decision under s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to the totality of the evidence and those considerations referred to in the Direction. Accordingly, the Tribunal finds as follows:
(a)Primary Consideration 1 weighs very heavily against the revocation of the cancellation of CGQJ’s visa. This is not determinative, but greater weight is apportioned to this Primary Consideration than to the remaining Primary Considerations.
(b)Primary Consideration 2 is not relevant.
(c)Primary Consideration 3 weighs heavily in favour of the revocation of cancellation of CGQJ’s visa.
(d)Primary Consideration 4 weighs heavily in favour of the revocation of cancellation of CGQJ’s visa.
(e)Primary Consideration 5 weighs very heavily against the revocation of the cancellation of CGQJ’s visa.
(f)Regarding the Other Considerations:
(i)The legal consequences of this decision weigh neutrally.
(ii)The extent of impediments if removed weigh very heavily in favour of the revocation of the cancellation of CGQJ’s visa.
(iii)The impact on Australian business interests is not relevant.
Submissions have been pressed that CGQJ may be a positive influence on the Australian community if released into it and this would be a protective factor for the community. The reasoning is that the South Sudanese community would feel a sense of punishment if CGQJ remained in immigration detention following the completion of his prison sentence. This sense of punishment then leads to disaffection and precipitates the conditions for further offending. There is some sense to this argument, particularly in communities where people of South Sudanese extraction already feel marginalised. This submission was raised in the context of Primary Consideration 1, although it does not sit neatly within that primary consideration.
There is substantial evidence before the Tribunal indicating CGQJ’s desire to assist the South Sudanese community and to assist to prevent youths falling into criminality. The Tribunal accepts the sincerity of CGQJ’s desire and that he would be welcomed by various community organisations in his efforts. What troubles the Tribunal is the pragmatic aspects of doing so. Notwithstanding hurdles such as clearances for working with children, CGQJ has been imprisoned or in detention now for decades. He wants to assist with caring duties for his family, but he has no recent experience of such duties. He wants paid employment, but he has no recent experience of any such employment. He wants to mentor young people as well. Noting the evidence of Mr Newton and Mr Tracey in particular, the Tribunal is guarded in accepting that all CGQJ’s stated desires are achievable in the foreseeable future. The Tribunal nevertheless places minor weight in favour of the revocation of the cancellation of CGQJ’s visa upon consideration of these submissions.
Consistent with paragraph 7(2) of the Direction, the Tribunal places greatest weight on Primary Consideration 1 and the protection of the Australian community. The Tribunal also places greater weight on the Primary Considerations. The Tribunal is also guided by the principles contained in the Direction. The Tribunal notes paragraph 5.2(2), where the highest priority of the Australian Government is the safety of the community. CGQJ may relapse into alcohol, or drug, use despite his admirable efforts towards rehabilitation. The Tribunal finds his risk of his reoffending to be unacceptable.
Accordingly, the Tribunal is not satisfied of another reason to revoke the cancellation of CGQJ’s visa. Therefore, the correct and preferable decision of the Tribunal is to affirm the Reviewable Decision.
Finally, the Tribunal acknowledges the extensive pro bono legal support that CGQJ has received from CGQJ’s Counsel and solicitor in these proceedings. Such support is often burdensome on practitioners but is one of the finest traditions of the legal profession.
DECISION
The Tribunal affirms the Reviewable Decision
I certify that the preceding 175 (one-hundred and seventy-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member A George
............................[Sgnd]...................................
Associate
Date of Decision:
3 February 2025 Date of Hearing: 3-5 September 2024, 9-10, 13 December 2024 Counsel for the Applicant: Ms E Tadros
Solicitor for the Applicant: Carina Ford Lawyers
Counsel for the Respondent: Ms G Johnson
Solicitor for the Respondent: Mills Oakley
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