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

[2023] AATA 1222

CGQJ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1222 (7 February 2023)

Division:GENERAL DIVISION

File Number:          2022/9554

Re:CGQJ

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:R Cameron, Senior Member

Date:7 February 2023

Place:Melbourne

The Tribunal affirms the reviewable decision.

..............................[sgd]..........................................

R Cameron, Senior Member

Catchwords

MIGRATION – mandatory cancellation of visa – request for revocation of cancellation – character test – substantial criminal record – murder conviction – Ministerial Direction No. 90 applied – whether another reason why original decision should be revoked – primary and other considerations – protection of the Australian community – nature and seriousness of conduct – risk to the Australian community – best interests of child – international non-refoulement obligations – links to the Australian community – decision under review affirmed

Legislation

Migration Act 1958 (Cth)
South Sudan Nationality Act 2011 (Republic of South Sudan)
Sudanese Nationality Act 1994 (Republic of Sudan)
Sudanese Nationality Act (Amended) 2011 (Republic of Sudan)

Cases

FYBR v Minister for Home Affairs (2019) 272 FCR 454
MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 283 FCR 525
Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417
Re LLSY and Minister for Immigration and Citizenship (2011) 121 ALD 630
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

Secondary Materials

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)
Convention relating to the Status of Refugees, opened for signature 28 July 1951,189 UNTS 137 (entered into force 22 April 1954)
Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)

Second Optional Protocol to the International Covenant on Civil and Political Rights, opened for signature 15 December 1989, GA res. 44/128, annex, 44 UN GAOR Supp. (No. 49) at 207, UN Doc: A/44/49 (1989) (entered into force 11 July 1991)

REASONS FOR DECISION

R Cameron, Senior Member

7 February 2023

INTRODUCTION

1. The applicant seeks review of a decision made on 15 November 2022 by a delegate of the respondent, not to revoke the mandatory cancellation of the applicant’s Class BA Subclass 200 (Refugee) visa (‘the visa’) under s 501CA(4) of the Migration Act 1958 (Cth) (‘the Act’)

   THE EVIDENCE BEFORE THE TRIBUNAL

2. There was both oral and documentary evidence before the Tribunal. The applicant gave oral evidence and was cross-examined.

3. The parties helpfully prepared a joint Tribunal book (‘Tribunal book’) consisting of five lever arch folders which was received in evidence and contained all the relevant documentation that each party relied upon during the hearing.

4. The following witnesses gave oral evidence:

   (a)the applicant;

   (b)the applicant’s father;

   (c)the applicant’s mother;

   (d)the applicant’s brother, ‘ZA’;

   (e)the applicant’s sister, ‘MA’;

   (f)the applicant’s niece, ‘AA’;

   (g)Bol Aweeng Machar Maduot;

   (h)Anna Hopkins;

   (i)Matthew Albert; and

   (j)William Crawford.

   LEGISLATIVE FRAMEWORK

5. Under s 501(3A) of the Act, the Minister (or a delegate of the Minister) must cancel a visa that has been granted to a person if:

   (a)  the Minister is satisfied that the person does not pass the character test because of the operation of:

   (i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

   (ii) paragraph (6)(e) (sexually based offences involving a child); and

   (b)  the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

6. The character test referred to in s 501(3A) is outlined in s 501(6) of the Act. Relevantly, s 501(6) of the Act provides that a person does not pass the character test if the person has a substantial criminal record (as defined by s 501(7) of the Act). For the purposes of s 501(6)(a) of the Act, and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[1]

   [1] Migration Act 1958 (Cth) s 501(7)(c).

7. Where a visa has been cancelled, as set out above, the Minister has a power under s 501CA(4)(b) of the Act to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is ‘another reason’ why the original decision should be revoked.

8. Section 499 of the Act provides that the Minister may make directions which a person or body must consider in performing a function or exercising a power under the Act. Any such direction cannot be inconsistent with the Act, but a decision maker must, under section 499(2A) of the Act, comply with a relevant direction. Currently, the applicable direction is Direction 90.[2]

   [2] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021).

   DIRECTION 90

9. It is not necessary to reproduce the entirety of Direction 90. However, it is useful to refer to several paragraphs of it.

10. Paragraph 5.2, ‘Principles’, provides the framework within which decision-makers should approach their task of deciding whether to revoke a mandatory cancellation under s 501CA of the Act. The content of that clause is referred to in their entirety for the full force and effect. However, several of them should be specifically referred to. It is provided that:

    (a)non-citizens who engage or have engaged in criminal or other serious conduct should expect to forfeit the privilege of staying in Australia;

    (b)the Australian community expects that the Australian Government can and should cancel non-citizens’ visas if they engaged in conduct that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community; and

    (c)decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not revoking a mandatory cancellation. 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, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

11. Paragraph 6, ‘Exercising discretion’, provides that, informed by the principles in paragraph 5.2, account must be taken of the considerations identified in paragraph 8 ‘Primary Considerations’ and paragraph 9 ‘Other considerations’, where relevant to the decision.

12. Paragraph 7, ‘Taking the relevant considerations into account’, provides that in applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.

13. Paragraph 8, ‘Primary considerations’, mandates that, in deciding whether to revoke the mandatory cancellation, the following are primary considerations:

    (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.

14. Paragraph 9 ‘Other Considerations’ mandates that in deciding whether to revoke the mandatory cancellation, other considerations include, but are not limited to:

    (a)international non-refoulement obligations;

    (b)extent of impediments if removed;

    (c)impact on victims;

    (d)links to the Australian community, including:

    (i)strength, nature and duration of ties to Australia; and

    (ii)impact on Australian business interests.

    ISSUES BEFORE THE TRIBUNAL

15. There is ample evidence to demonstrate that the applicant has made representations in accordance with s 501CA(4)(a) of the Act.[3]

    [3] Document G20 of the G documents at pages 135, 145, 157, 168, 299, 344 and 691.

16. That leaves two issues for determination by the Tribunal:

    (a)whether the applicant passes the character test; and

    (b)if he does not, whether there is ‘another reason’ why the decision to cancel the visa should be revoked.

    THE CHARACTER TEST

17. The applicant does not pass the character test. This is because, by operation of s 501(6)(a) and s 501(7)(c) of the Act, he has a ‘substantial criminal record’ because he has been sentenced to a term of imprisonment of 12 months or more in the Supreme Court of Victoria (‘Supreme Court’).[4] On [redacted], in the Court of Appeal of the Supreme Court of Victoria (‘Court of Appeal’) the applicant was resentenced for the crime of murder, to be imprisoned for a term of 18 years with a minimum term of 14 years before becoming eligible for parole.[5] Additionally, the applicant’s present legal representatives quite properly conceded, both in submissions to the delegate dated 30 September 2022 and in closing submissions before the Tribunal at the hearing of this application, that the applicant does not pass the character test.[6]

    [4] A copy of the judgment is at page 107 of document G20 of the G documents.

    [5] The applicant pleaded not guilty to one count of murder in the Supreme Court. He was found guilty by a jury and sentenced by the trial judge to a term of imprisonment of 22 years with a minimum term of 17 years. He successfully appealed the length of the term of imprisonment on several grounds. A copy of the Court of Appeal’s judgment is at page 100 of document G20 of the G documents.

    [6] The applicant's submission of 30 September 2022 is at page 691 of the Tribunal book. The concession that the applicant does not pass the character test is contained at paragraph 38 of his submissions at page 696 of the Tribunal book.

    BACKGROUND AND OFFENDING

18. The applicant was born on [redacted] in the city of Khartoum, in what used to be the nation of Sudan. He is of Dinka ethnicity and of the Christian faith. Khartoum is now part of what is known as Republic of Sudan (‘Sudan’). His family, due to a civil war which wracked the country and forced them from their village, had fled there from what is now known as Republic of South Sudan (‘South Sudan’), prior to his birth. It is common ground that whilst in Khartoum the applicant’s family experienced poverty, discrimination, constant fear and hardship.

19. The applicant’s family was a large one, with 10 children. Two of his siblings died in Sudan due to the deprivations that his family suffered there.

20. When he was approximately five years of age the applicant, his mother and siblings travelled to Egypt. His father apparently moved to Libya. The family left Sudan to escape the conflict in that country and the hardship they experienced at that time. Life in Cairo also proved to be difficult. The applicant and his family lived in abject poverty and were subject to discrimination on the grounds of race. There were only relatively limited opportunities for him to attend school. In evidence, he stated he was taught some English and maths.

21. Eventually, the applicant and his family were granted refugee status by the United Nations High Commissioner for Refugees (UNHCR).

22. The applicant arrived in Australia on a Class BA Subclass 200 Refugee visa with his family on 9 December 1997. He has resided in Australia ever since.

23. Upon arrival in Australia, the applicant lived with his family in Townsville. He attended primary school there. He could not speak English upon his arrival in Australia. It appears that the family’s life in Townsville was comparatively good. They received community support from a local church. The applicant commenced to learn English at the local primary school. It appears that he was moderately successful in these endeavours.

24. In approximately 1998, the applicant and his family moved to Brisbane. The reason for the move to Brisbane was that his family had relatives in Brisbane to whom they wished to be closer.

25. Unfortunately, the move to Brisbane posed several challenges for the applicant. He attended secondary school there and was subject to racist taunts and bullying by other pupils. Additionally, he experienced violence from other boys at the school he attended. Regrettably, this led, on one occasion, to the applicant being beaten unconscious. The continuing ill-treatment and racism that the applicant experienced, as its natural consequence, resulted in him seeking the company and protection of other Sudanese boys. There was some evidence to suggest that these boys he associated with were undesirable and described as ‘trouble-makers’. This tendency to associate with undesirable people regrettably continued after he left Brisbane, about which more will be said later.

26. In 2003, the applicant and his family moved to Melbourne. There were several reasons for making this move. The applicant’s elder brother had moved to Melbourne earlier to take up the opportunity of university studies. As was apparent from his evidence, in addition to successfully undertaking these studies, the applicant’s brother genuinely enjoyed life in Melbourne. He conveyed to his family what he perceived to be the benefits of making such a move. Additionally, there were several aunts, uncles and extended family members of the applicant also residing in Melbourne.

27. When the applicant arrived in Melbourne, finding a suitable school for him to attend proved problematic. Unfortunately, he was only educated to year nine and left school in 2002. Also, the applicant found that he was 2 or 3 years older than the other pupils in his classes.

28. After his arrival in Melbourne, the applicant did attend the Sudanese-Australian Integrated Learning Program (known as SAIL). In this program, the applicant participated in English, drama and soccer classes. There was evidence before the Tribunal from Ms Hopkins and Mr Albert that the applicant was an exemplary SAIL participant. He was described as a hard-working student who displayed a consistent desire to improve his English during lessons undertaken with a tutor.

29. Not long after the applicant’s arrival in Melbourne in 2003, one of his older brothers, [redacted], was killed in a motor vehicle accident. His other brother, [redacted], was a passenger in the same vehicle. He suffered injuries which required a period of hospitalisation with significant head injuries. [redacted] also developed, from the injuries sustained in the car accident, a significant psychiatric condition which led to the onset of schizophrenia and continuing alcohol problems. It is quite reasonable to observe that the motor vehicle accident in which the applicant’s brother was killed devasted him and his family.

30. In the material before the Tribunal, three offences are recorded as having been committed by the applicant.[7] Those offences were firstly, as referred to above, a conviction for murder, for which on [redacted] the applicant was resentenced to a term of 18 years with a minimum of 14 years before becoming eligible for parole. The Tribunal should observe that the applicant was unsuccessful in obtaining parole, because his visa had been cancelled, as is usually the case in the State of Victoria. He, therefore, served the full term of 18 years imprisonment as imposed by the Court of Appeal.

    [7] The Tribunal refers to the content of the National Police Certificate, which is found at page 108 of the Tribunal book.

31. The other offences recorded in the National Police Certificate before the Tribunal are relatively trivial. They are a conviction at the [redacted] Magistrates’ Court on [redacted] for the possession of a controlled weapon without excuse, for which he was fined $250, and the crime of unauthorised dealing with shop goods to a maximum value of $150 in the [redacted] Magistrates’ Court on [redacted], for which no conviction was recorded. The Tribunal will not address these remaining convictions by reason of their comparative triviality.

32. The facts giving rise to the applicant’s conviction for murder are adequately contained in the reasons for sentence of the trial judge, handed down on [redacted]. The sentencing judge observed that at trial the only issue was whether the applicant was the person who fatally stabbed the victim. Otherwise, the facts concerning the murder were not in dispute. The Tribunal should observe at this stage of these reasons that the applicant provided, on several occasions, in material and his evidence before the Tribunal, slightly different versions of the events surrounding the murder of the victim to those recorded in the trial judge’s reasons for sentence. Where those subsequent versions of the facts given by the applicant differ from those recorded by the trial judge, the Tribunal prefers the version contained in the trial judge’s reasons for sentence.

33. It is appropriate to reproduce several passages from the reasons for sentence of the trial judge. He recorded as follows:

    [redacted]

    DIRECTION 90 – APPLICATION TO THE CASE

    Primary Considerations

    Paragraph 8.1 of Direction 90 - Protection of the Australian Community

34. Paragraph 8.1(1) of Direction 90 provides that when considering the protection of the Australian community, the Tribunal should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, the Tribunal should 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.

35. Paragraph 8.1(2) of Direction 90 further states:

    (2) Decision-makers should also give consideration to:

    (a) The nature and seriousness of the non-citizen’s conduct to date; and

    (b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

    Paragraph 8.1.1 of Direction 90 - The nature and seriousness of the applicant’s conduct

36. Paragraph 8.1.1 of Direction 90 identifies several factors that a decision-maker must have regard to, when considering the nature and seriousness of a non-citizen’s criminal offending or other conduct to date. The range of factors enumerated in that paragraph is not exclusive.

37. Paragraph 8.1.1(1)(a)(i) of Direction 90 provides that, without limiting the range of conduct that may be regarded as very serious, violent and/or sexual crimes are viewed very seriously by the Australian Government and the Australian community.

38. The murder committed by the applicant occurred just short of six years after his arrival in Australia.

1. At the hearing of the application, in submissions to the Tribunal, the applicant’s representatives readily conceded that the murder he committed was serious offending in the most serious of crimes. The applicant has consistently made this concession. In submissions made by the applicant’s previous lawyers on 29 March 2018 to the delegate of the respondent, it was accepted that the applicant had been convicted of murder which was described as ‘a serious, violent offence’.[8] The applicant’s present lawyers, in a submission dated 30 September 2022 made to the delegate of the respondent, also conceded that the nature of his conviction for murder is serious.[9]

   [8] These submissions of 29 March 2018 from the applicant's former lawyers to the delegate of the respondent begin at page 168 of the Tribunal book.

   [9] The applicant's submissions to the delegate of 30 September 2022 are at page 691 of the Tribunal Book. The acknowledgement that the conviction for murder as serious as contained in paragraph 49 of that document.

2. There are some observations made by both the trial judge at the Supreme Court and the presiding judge in the Court of Appeal that warrant reference, as they explain just how serious the applicant’s offending was.

3. The trial judge said that the applicant’s offending was a particularly serious instance of the crime of murder and was particularly cowardly. He also observed that the attack by the applicant on the deceased was brazen and totally unjustified and utterly unacceptable. He further stated that the applicant’s use of a knife was a contravention of a basic standard and value of our society. He commented that the applicant’s conduct violated the most fundamental norms of civilised behaviour. It was in this setting that he stated that the crime of murder is the most serious crime known to our system of justice. He concluded that the murder of the victim carried out by the applicant was a particularly serious instance of that crime. The facts speak for themselves. The Tribunal completely agrees with the trial judge’s conclusions.

4. The trial judge, in his reasons for sentence, identified a number of factors which he considered made the murder committed by the applicant a particularly serious instance of the crime. They make for confronting reading. They are as follows:

   [redacted]

5. Another feature of the applicant’s offending that must render it very serious are the number of knife wounds suffered by the victim. The deceased had three wounds to the left-hand side of his face. The pathologist’s evidence was they could have been inflicted by a minimum of one and a maximum of three distinct applications of sharp force. There were two stab wounds to the left upper back, one of which was 205 mm deep and pierced the deceased man’s aorta. There were three stab wounds to the chest. One, to the right-hand side of the chest, penetrated the deceased’s heart. The other two knife wounds were to the left-hand side of the chest. In addition to the injury to the heart and aorta, the stab wounds penetrated both lungs and damaged the mammary artery. The number, force and depth of the stab wounds are of much concern. They were repeated acts of violence rendered against an innocent victim, by the applicant who was significantly taller and stronger.

6. In this context, the observations of the judge in the Court of Appeal concerning the applicant’s attack on the victim are helpful. He observed that when the attack by the applicant on the victim was launched, the applicant was not in fear of the deceased, he was not angry with the deceased, and he stood to gain no material advantage from killing him. No motive for the murder was advanced by counsel who appeared for the appellant (the applicant) at the plea. There was direct evidence, which was obviously accepted by the jury, not to mention the trial judge, that the applicant was smiling when he stabbed the deceased. His smile was not the product of amusement. The judge expressed the opinion that the sentencing judge properly concluded that the appellant derived pleasure from his attack on the deceased. He further concluded that the crime was serious, attended by circumstances which were disturbing. The Tribunal agrees with the conclusions of the judge concerning the applicant’s offending.

7. The applicant submitted that there were several factors that must be taken into account in the context of the applicant’s commission of the crime of murder. Those factors are:

   (a)the applicant was just 17 years old at the time of his offending. He is now 36 years old;

   (b)Just prior to the offending, as noted above, the applicant’s brother was killed in a motor vehicle accident. The applicant was struggling to process his grief and accept this loss in the lead up to his offending;

   (c)The applicant is a refugee who has experienced significant hardships in his life, in addition to racism and the difficulties of adjusting to a new community;

   (d)The offending was out of character; and

   (e)The applicant has displayed deep remorse for his offending.

8. The Tribunal acknowledges these factors and acknowledges that they are contextually important in understanding the applicant’s offending, although they are no excuse. It was recognised, particularly in the Court of Appeal, that the applicant was a teenager (as he put it, a reflection of his ‘youth and its consequences’) and had been the product of a culture of violence and deprivation. Indeed, several witnesses at the hearing of this application before the Tribunal (for instance Ms Hopkins, in response to a specific question from the Tribunal) suggested the fact that the applicant was a teenager who had faced several challenges and difficulties in his life prior to committing the murder was a significant factor. Ms Hopkins suggested that the applicant had undergone some psychological torment as a teenager, and he had no way of expressing himself in such a convoluted state.

9. Notwithstanding these considerations, particularly the applicant’s young age, the recent death of his brother, with which he had difficulty coping, together with the variety of experiences and deprivation that he had endured up to the time of the murder, the Tribunal considers that the fact that the attack was unprovoked, that the applicant derived pleasure from the attack, that he was not in fear of, nor angry with the deceased, and stood to gain no material advantage from killing him, do place this offending in the most serious category. The number of stab wounds inflicted on the deceased, and the force with which they were inflicted, is also of concern and elevates the offending to a very serious category. Indeed, the sentencing judge described the stab wounds as ‘vicious’. The Tribunal agrees.

10. The very serious nature of the applicant’s offending is reinforced by the penalty that was imposed on him. Notwithstanding the several mitigating factors that have been relied upon by him, as previously noted, particularly his youth, the Tribunal has not lost sight of the fact that he was sentenced to a term of imprisonment of 18 years with a minimum term of 14 years before he was eligible for parole. This sentence must be viewed as a reflection of the very serious nature of his offending.

11. By reason of the foregoing matters and having regard to the considerations contained in paragraph 8.1.1 of Direction 90, the Tribunal concludes that this primary consideration weighs very heavily against revocation of the mandatory cancellation of the applicant’s visa.

    Paragraph 8.1.2 of Direction 90 - The risk to the Australian community should the applicant commit further offences or engage in other serious conduct

12. Paragraph 8.1.2 of the Direction 90 relevantly provides:

    (1)  In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

    (2)  In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers 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).

13. In undertaking the assessment required of this primary consideration, paragraph 8.1.2(2)(a) of Direction 90 requires the Tribunal to assess the nature of the harm should the applicant engage in further criminal or other serious conduct.

14. The Tribunal considers that the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct would involve significant physical or psychological harm to members of the Australian community. Indeed, were he to commit the crime of murder again it goes without saying what the consequences would be.

15. The applicant, in the Statement of Facts, Issues and Contentions, lodged by his lawyers on 3 January 2023, acknowledged that if he were to offend as he had done in the past or engage in other serious conduct, it cannot be disputed that it would pose a risk to members of the Australian community.[10]

    [10] Paragraph 42 of the applicant's Statement of Facts, Issues and Contentions of 3 January 2023 is referred to.

16. Paragraph 8.1.2(2)(b) of Direction 90 requires the Tribunal to have regard to the likelihood of the applicant engaging in further criminal or other serious conduct, taking into account information and evidence on the risk of reoffending, and evidence of rehabilitation.

17. The applicant contends that he is a minimal risk of reoffending. He relies upon several grounds in support of this contention.

18. There are the obvious mitigating factors that were identified not only in the hearing of this application before the Tribunal but also as outlined above to the trial judge and the Court of Appeal. They are principally that the applicant was 17 years of age when he committed his offending, the history of conflict, deprivation and poverty that he had experienced prior to his arrival in Australia, the bullying and attack upon him when he attended school in Australia, and that he has demonstrated particularly by way of his previous involvement in the SAIL program that he is not without prospects of rehabilitation. He is now, as was contended on his behalf and by several witnesses who gave evidence at the hearing of the application, a middle-aged man who has had many years to reflect upon his offending; and by reason of that reflection has acquired a level of maturity which would act as a protective factor. The Tribunal acknowledges these factors as highly relevant and places appropriate weight upon them.

19. He has, in a number of statements and submissions that have been submitted on his behalf, both to the respondent and this Tribunal, expressed remorse for committing the murder he did. This remorse was also expressed by the applicant when he was in the witness box. The Tribunal considers that these expressions of remorse were genuine. He has now been in custody and immigration detention for over 19 years. He has clearly had much time to reflect carefully on what he did. There is no doubt in the view of the Tribunal that the reality of his offending has had a dramatic impact on him. There were other witnesses, such as his father, mother, brother and sister, who gave evidence that they believe that the applicant is genuinely remorseful for his actions. The Tribunal sees no reason not to accept this evidence. Other witnesses such as Ms Hopkins, Mr Albert and Mr Crawford also expressed the view that the applicant was remorseful.

20. The applicant has undertaken a significant number of rehabilitation and education courses during his period of incarceration. He undertook these courses for the purposes of improving his knowledge and skill set, and also to assist him adapt to life should he be released into the community.

21. The education courses undertaken include Certificate I and Certificate II in Mathematics, English, Computing and Engineering. He has also completed several subjects that count towards a Certificate I in General Education for Adults, Certificate II in Asset Maintenance (Cleaning Operations), Certificate II in Transport & Distribution (Warehousing & Storage), Certificate II in Hospitality (Kitchen Operations), Certificate II in Engineering, Certificate III in Asset Maintenance (Cleaning Operations and Diploma of Engineering Technology.

22. Additionally, whilst in prison the applicant undertook several rehabilitation and personal development courses.[11] These courses are as follows:

    [11] Further details concerning these courses are founded paragraphs 13 and 14 of the applicant's statement of 12 January 2023. Certificates for most of these courses completed by the applicant were in evidence in the Tribunal book at pages 230-243.

Program

Date Completed

Release Related Harm Reduction Program

7 September 2017

High Intensity Violence Intervention Program

16 May 2017

Talking Change Program

20 October 2016

Smoking Management Program

6 July 2010

Intensive Drug Program

20 May 2008

Tweedle Child and Family Health Service

Family and Self Sessions

December 2007

Anger Management

6 September 2007

Offending Behaviour (II)

24 November 2004

Communication Skills

20 July 2004

Offending Behaviour (I)

15 May 2004

Consequential Thinking

14 May 2004

Financial Management

28 April 2004.

1. In his evidence, the applicant also stated that because he has attended and participated in these courses, he has acquired skills that enable him to manage anger and not react if he is otherwise provoked. In response to several questions, he said that he would channel his anger by talking to another person about it. He discussed strategies or tactics that he would adopt if he was provoked or angry with someone. In such a setting or situation, he said he would not continue to engage in a conversation with such people and would simply walk away and try to talk with someone about it. If released into the community in the future, he said that he would talk to someone including his community support network or his family.

2. He was referred to the course in Anger Management that he completed in 2007 and the module in that course, ‘Understanding Emotions & Emotional Traps’. The applicant gave evidence in cross-examination that he learnt from that unit that if one feels angry, they cannot react, they have to withdraw to themselves and think things through. He talked about a strategy he will adopt if he feels angry. He said he would go and listen to music to help him calm down. He gave similar responses when he was probed about the course content in the subject, ‘Consequential Thinking’, which included a subject ‘Thinking on the run’. He explained that this helps participants develop skills to think of the consequences of their acts before they do so. Another topic that was discussed by the applicant in evidence as part of the Consequential Thinking course was the ‘Influence of Group Pressure on Individual Thought’ He stated that this course would assist him in avoiding offending such as that which he committed in 2003. It will do so because he realises that if he has problems, he should not surround himself with people who have negative energy. He should surround himself with people who are likely to direct him on a better path.

3. It was apparent that the applicant had a good recall of the format and content of the courses that he had undertaken. However, the Tribunal did find the applicant’s responses to questions in cross-examination about what he would do if he became angry or was provoked to be somewhat formulaic or rehearsed.

4. The Tribunal has significant concerns about how much the applicant has really learned from the courses that he has undertaken. As noted above, the applicant’s responses to questions put to him in cross-examination, in particular when probed on course content and what he had learned, were fairly formulaic or rehearsed. Additionally, his behaviour in prison, both with respect to the use of drugs and engaging in acts of violence or making threats of violence including his involvement in a stabbing in the prison laundry on 5 April 2012, about which more will be said later, occurred after he had participated in these courses of Anger Management, Offending Behaviour and Consequential Thinking. The victim of the stabbing received multiple stab wounds. This is indicative of the applicant not thinking about his actions and possibly reacting inappropriately to provocative behaviour. One has to be concerned, given this incident occurred in the highly regulated prison environment, how the applicant may react to provocative or stressful situations if he is released into the community where his acts would not be subject to the same level of scrutiny as they are in prison.

5. As will be explained in more detail later, the applicant also undertook two drug and alcohol awareness and treatment programs that were conducted by way of intensive sessions over some time. Yet he continued from time to time to take drugs whilst in prison and drugs were found in his possession. It does then pose the question as to what he really learned from these courses and raise the question of whether he really has rehabilitated. In one instance, as will also be discussed later, he was found with drugs only days after completing one of these courses. This is of real concern. It also raises a question of whether he poses a risk of relapsing into drug-taking and alcohol consumption, which would be to his detriment. This could expose him to a heightened risk of reoffending in a violent way, particularly in a setting where he is affected by drugs and/or alcohol at a time of stress, or where for instance, he is subjected to some level of provocation.

6. The Tribunal’s concerns about the extent to which the applicant has been truly rehabilitated by reason of undertaking the many courses that he has are also amplified by the fact that the last course he attended was in July 2018, which is well over four years ago. The respondent contends, and the Tribunal agrees, that it would be reasonable to say that the extent of the applicant’s rehabilitation remains untested in the community, where there is not the level of regulation, scrutiny and attention that accompanies prison and immigration detention. If he is released into the community after having been in prison or immigration detention for more than half of his life, the outside world will be unfamiliar and pose challenges, and he almost inevitably will require some significant period of adjustment. There will be temptations for him nonetheless, which will be the ready availability of alcohol and drugs.

7. Another aspect of the courses raised by the respondent, with which the Tribunal agrees, is the question of how accurately or appropriately they address the underlying reasons for the applicant’s offending. Certainly, the anger management courses did so. However, his childhood experiences as a refugee involving conflict and deprivation, adverse formative experiences, limited education, bullying, racial vilification and assault were not directly addressed in all of the courses. As the respondent contends, with respect to these issues, the rehabilitation courses were limited in scope to grapple with such significant matters which underpinned his offending. How the applicant will cope with these underlying factors if they were to confront him in the event he is released into the community are a cause for concern. They do expose a potential risk for the applicant to reoffend.

1. The applicant also relies upon a report prepared by a consultant clinical psychologist, Dr Paul Grech, dated 28 December 2017 (‘Dr Grech’s report’).[12] He contends that Dr Grech concluded that the applicant was a minimal risk of reoffending.[13]

   [12] Page 202 of the Tribunal book.

   [13] See paragraph 50 of the applicant's Statement of Facts, Issues and Contentions dated 3 January 2023.

2. Particular emphasis was placed by the applicant upon several opinions expressed by Dr Grech in his report. In one passage, Dr Grech opined that the applicant to his credit appeared to have utilised his time in custody constructively and appeared largely rehabilitated; but he was eager to focus upon his education and remaining aspects of his rehabilitation, if or when he is released back into the community. Dr Grech also stated in that passage that, based on all the above available information, the applicant had a bright future in Australia.

3. In another passage, Dr Grech expressed the opinion that significant factors in the applicant’s offending included the following: his experience of being a refugee, his adverse formative experiences, being dislocated from his family, his contemporaneous drug and alcohol use, his use of drugs and alcohol at the time of the offending, his interrupted education, during which time he was bullied and racially vilified, being the victim of a severe assault in the period leading up to his offending, and the context of the offending in which he took control of a weapon (a knife), which was initially brandished by the victim.

4. It should be observed that, in an early part of Dr Grech’s report, under the heading ‘Background to Assessment’, he recorded that the altercation that led to the fatal stabbing involved ‘a conflict over “nothing”, “a bit of an argument” ensued, after which [the applicant] reported being attacked by his victim who was brandishing a knife’. Dr Grech recorded that in the resultant fight, the applicant managed to grab the knife and used it several times to stab his victim in the shoulder and chest region before he and the group decamped. He also recorded that at the time of the offending the applicant had reportedly been drinking heavily and using cannabis on a regular basis. This section of Dr Grech’s report was referred to and relied upon by the applicant in his Statement of Facts, Issues and Contentions, which was lodged with the Tribunal on 3 January 2023.[14]

   [14] See paragraph 28 of the applicant's Statement of Facts, Issues and Contentions of 3 January 2023.

5. Another observation made by Dr Grech in that part of the report was that the applicant had informed him that he had been drug-free for 14 years. Dr Grech subsequently observed in his report that the applicant acknowledged that alcohol and cannabis were major issues prior to his offending.

6. It should also be noted that Dr Grech reported that the applicant admitted to being involved in a group fight while in custody in 2005, between a group of Africans and Asians. Otherwise, Dr Grech recorded that the applicant had informed him that he had been settled for many years and kept out of trouble.

7. After the respondent had lodged its Statement of Facts, Issues and Contentions on 10 January 2023, in which, for the reasons articulated therein, the respondent contended that Dr Grech’s report should be given no weight, the applicant prepared and lodged a statement dated 12 January 2023, which, amongst other things, contained a section entitled ‘Corrections – Psychologist Report’ (‘the 12 January statement’).[15]

   [15] The applicant's statement of 12 January 2023 is at page 2253 of the Tribunal book.

8. In the 12 January statement, the applicant said that he wished to make corrections in response to some of the matters recorded in Dr Grech’s report. He stated that on the night of the murder he was not carrying the knife. He acknowledged that he had the knife at the time of the stabbing. Additionally, contrary to what was recorded in Dr Grech’s report, the applicant stated that the knife was not the victim’s knife. He went on to say that it was not he who had the knife, but it was his friend who was with him who had the knife, and that he grabbed the knife from him.

9. Additionally, in the 12 January statement, the applicant referred to the observation by Dr Grech that the applicant had been drug-free for 14 years. The applicant recorded that there were instances in prison where he had tested positive to drugs or was found with alcohol. He stated that he had tested positive on a number of occasions. He stated these positive drug tests had been for relaxant drugs to assist with ‘tightness and soreness from the prison environment/pain’.

10. The making and lodging of the 12 January statement by the applicant is of considerable concern to the Tribunal. There are several reasons for this. It should not be lost sight of that the Dr Grech’s report was dated 28 December 2017. The applicant readily conceded in his evidence before the Tribunal that he had read and understood the content of Dr Grech’s report not long after it was produced. He did not explain why it took him so long to correct it, as he did in the 12 January statement.

11. Additionally, the Tribunal notes that the content of Dr Grech’s report was relied upon heavily by the applicant in his submissions to the National Character Consideration Centre of the Department of Home Affairs on 29 March 2018. A copy of Dr Grech’s report in full was attached to those submissions. It seems inconceivable to the Tribunal that the applicant would not have known that the report was being proffered to the delegate for the purposes of considering whether there was another reason why the mandatory cancellation of his visa should be revoked. He must have known that Dr Grech’s report, which he acknowledged contained several inaccuracies, was being submitted to the delegate. Yet, he took no steps to correct it.

12. Again, the content of Dr Grech’s report was relied upon by the applicant in further submissions made by his present lawyers to the National Character Consideration Centre of the Department of Home Affairs on 30 September 2022. Once again, a copy of that report in full was attached to those submissions. Yet again, the applicant allowed the report to be submitted without any corrections or qualification.

13. The Tribunal found the applicant’s evidence concerning the content of Dr Grech’s report, and what he explained to Dr Grech, was most unsatisfactory. In his evidence-in-chief the applicant stated that Dr Grech’s report was incorrect and went on to say that he was sorry for the misunderstanding. No further explanation was given by him as to how such a misunderstanding could have occurred, and why he did not take steps to correct the content of the report much earlier. In his cross-examination, he stated that he did not recall telling Dr Grech that the victim had a knife. Then his evidence shifted to saying that he did not recall telling Dr Grech that the victim had the knife but maybe he did say that. He was also cross-examined on the fact that the content of Dr Grech’s report was relied upon a number of times, which he readily conceded. He was asked why he did not raise the inaccuracy with his lawyers. He said he did so recently and made the new statement.

14. When specific questions on this topic were asked of him by the Tribunal, his evidence shifted yet again. He then said, ‘I think I said it to Dr Grech’; ‘What is in Dr Grech’s report is wrong, I didn’t need to say it the way I said it’; ‘I’m not sure why I only corrected it this year. I looked back on the night of the incident, what happened is what I recorded in the recent statement’; and ‘I recall telling Dr Grech that I grabbed a knife’. When it was put to him that the statements were inconsistent, his response was ‘[h]onestly, the only explanation I have is that I had the knife and used it that night. I should have explained it properly to Dr Grech’. He said words to the effect that he had made the mistake and did not know what to say. He said that he was sorry for what he had done and would like to apologise for any misunderstanding.

15. The applicant was also probed in cross-examination about telling Dr Grech that he had been drug-free for 14 years. He conceded that he did say that to Dr Grech. He tried to explain this away by saying that he thought Dr Grech meant had he taken marijuana and not drugs for pain. The Tribunal finds this explanation unconvincing. It appears more probable than not that the applicant sought to make the corrections when he realised that evidence concerning his drug taking in prison had seen the light of day.

16. As noted, the Tribunal finds the applicant’s explanation concerning the content of Dr Grech’s report most unsatisfactory. The fact that the applicant’s evidence shifted whilst he was in the witness box giving his oral evidence is of concern. Also of concern is the failure to give any adequate explanation for the delay in making the corrections as he did in the 12 January statement. The Tribunal finds it surprising indeed that there was a failure to correct the content of Dr Grech’s report until January of this year. It is also of concern that the applicant permitted Dr Grech’s report, which he knew to contain several significant inaccuracies that he has now admitted, to be submitted to the respondent on several occasions. It is also disappointing that it was even relied upon, unqualified, in the applicant’s Statement of Facts, Issues and Contentions lodged as recently as 3 January of this year.[16] It does not reflect well upon him and also significantly affects his credibility. It also does make one question whether the applicant has genuinely come to terms with his offending and gained an appropriate insight into it.

    [16] For example, paragraphs 28 and 49 of the applicant’s Statement of Facts, Issues and Contentions dated 3 January 2023.

17. Further questions about the applicant’s insight into his offending arise from the content of a handwritten statement made by the applicant, which was annexed to a submission made by his previous lawyers on 28 February 2019.[17] The written statement was made in response to a letter sent on 31 January 2019 to the applicant with copies of further information which the delegate stated may be taken into account when deciding whether to revoke the decision to cancel his visa.[18] That information included several media articles giving an account of the murder that took place. The handwritten statement was written by the applicant in response to those articles. The applicant wrote as follows:

    I believe no one ever heard my side of the story. They did approach us, only 20 mins later we all started arguing with one another and one of them started racially and abusive toward one of my mate, and threading him before walking away from us. I strongly regret following my mates that night when he wanted retribution for what happen to him, my mate felt like, he quote, “I can’t let him put me on show like that”. As we followed them that when the fight started. [sic]

    [17] The submission from FCG Legal Pty Ltd dated 28 February 2019 begins at page 299 of the Tribunal book. The handwritten statement from the applicant is at page 312 of the Tribunal book.

    [18] The letter from the delegate of the National Character Consideration Centre of 31 January 2019 is at page 294 of the Tribunal book.

18. The applicant was probed in cross-examination about the content of this written statement. He agreed that, at the plea hearing before the trial judge in 2005, his counsel, who was a very experienced barrister, did not make submissions that the applicant had been provoked on the night of the incident. He further agreed that only recently did he raise the suggestion that he was provoked. He also agreed that in that written statement there was no reference to drugs or alcohol. As has already been noted from the reasons of the sentencing judge in the Supreme Court and the Court of Appeal, no submissions were made to either of those courts that the applicant had been provoked by the victim, or, for that matter, anyone else, on the night that he committed the murder. Once again, in that statement and the previous submissions made by his previous lawyers in March 2018 and February 2019, there was no reference to the victim brandishing a knife, as was recorded by Dr Grech. There was no finding by the trial judge or the Court of Appeal that the victim or any of his associates had provoked the applicant. Finally, the applicant did not, during the hearing of this application, advance a case that he, or any of the persons with whom he was in company on the night of the murder, had been provoked by the victim or any of the victim’s friends. The applicant offered no reason as to why the suggestion that he was provoked was first raised as recently as it was in the statement attached to his lawyers’ letter to the delegate of 28 February 2019. It is yet another version of the events that the applicant has offered but which was not offered to Dr Grech. The very recent suggestion of provocation on the part of the applicant does raise serious questions about his credibility, and whether he has truly gained a complete insight into his offending. It was also a matter that was not put to Dr Grech and could not be considered by him.

19. There are other matters of concern with respect to the content of Dr Grech’s report. The concern was also due to an incorrect factual foundation upon which it is based in several respects. It is apparent that the factual foundation relied upon by Dr Grech was as a result of the information provided to him by the applicant at the time he conducted an assessment of him in 2017.

20. The respondent cross-examined the applicant, about Dr Grech recording in his report that the applicant admitted to being involved in a group fight in 2005, during which a group of Africans and Asians fought one another. The applicant said that he did not recall telling Dr Grech that he was in a fight in 2005. His evidence was that such a fight would have been in 2015. Additionally, the applicant stated that the fight was between a group of African and Asian prisoners. He stated that his involvement in that fight was confined to trying to help break it up.

21. In evidence before the Tribunal were records of Corrections Victoria compiled during the time that the applicant was imprisoned. These records largely comprised of Corrections Victoria Incident Reports. Several things emerge from these reports.

22. They reveal that the applicant has been involved in acts of violence or threats of violence. An Incident Report of 5 April 2012 records the applicant and another prisoner in an altercation in the prison laundry.[19] The altercation resulted in the other prisoner receiving multiple stab wounds. The wounded prisoner was conveyed to hospital for treatment. The incident was referred to Victoria Police. The police investigation was closed because the stabbing victim refused to provide or sign a statement. When probed in cross-examination, the applicant admitted he remembered the incident. The applicant refused to answer any further questions concerning the incident, claiming the privilege against self-incrimination. Whilst the applicant is not obliged to answer such a question, the circumstances of this incident are highly relevant to the question of the applicant’s risk of re-offending. As was observed by Deputy President Jarvis in Re LLSY and Minister for Immigration and Citizenship (‘LLSY’)[20], from a practical point of view, the applicant’s prospects of succeeding in his application to this Tribunal could be greatly prejudiced by the claim of such privilege.[21] For instance, if the applicant had been provoked, or there was some other ongoing threat to him arising from the prevailing prison culture and conditions that were a background to the stabbing, it would have been important for the Tribunal to know this. The Tribunal considers that it should accept the uncontroverted evidence contained in the Incident Reports of Corrections Victoria for the reasons articulated, and in the absence of any explanation to the contrary from the applicant.

    [19] The Incident Report is at page 578 of the Tribunal book.

    [20] (2011) 121 ALD 630.

    [21] LLSY at [48].

23. On the balance of probabilities, the Tribunal accepts the content of the Incident Report of the stabbing recorded on 5 April 2012. Whilst it is hearsay, it is a business record of Corrections Victoria which is kept by that organisation in the course of discharging its functions, and the entry was apparently compiled on the same day as the incident. It has been prepared with some care. The only conclusion that one can draw from an examination of the Incident Report is that the applicant inflicted the stab wounds on the other prisoner. There is no suggestion of anyone else being involved. The Tribunal also infers that the applicant most likely used a home-made knife, or as it is called in prison slang a ‘shiv’. The fact that the applicant either procured or made a shiv also indicates a level of planning and premeditation, which must be of concern. The Tribunal also infers that the victim’s refusal to provide or sign a statement for the police indicates the level of fear of retribution from the applicant that he presumably had.

24. The involvement of the applicant in the stabbing of another prisoner, as recorded in the Incident Report of 5 April 2012, demonstrates that it was not correct when the applicant told Dr Grech, which the Tribunal accepts that he did, that he had been settled for many years and kept out of trouble. It is difficult to accept that, when the applicant saw Dr Grech in 2017, he did not think to raise his involvement in the stabbing. It was a very serious event. Additionally, it should be recalled that Dr Grech did not give evidence at the hearing of the application. Had he done so, this and other matters could have been put to him. He could be asked whether his opinion as to, amongst other things, the applicant’s rehabilitation and his risks of reoffending, whatever they may be, had changed or altered by reason of the corrections that the applicant sought to make in the 12 January statement.

25. There was other evidence from the Corrections Victoria Incident Reports that should also be referred to. An Incident Report of an event that occurred on 15 August 2004 records that the applicant and other prisoners had made threats to other prisoners within the unit.[22]

    [22] Page 616 of the Tribunal book.

26. An Incident Report of 11 June 2007 records the applicant assaulting another prisoner who suffered superficial wounds to the face, back and head.[23] The victim required medical treatment. The matter was referred to Victoria Police for further investigation. The matter was dismissed because the victim made a statement of no complaint against the applicant. When the applicant was probed about this incident in cross-examination, he stated he did not recall it. He also stated he had no reason to say that the incident did not occur. The Tribunal found the applicant’s evidence that he did not recall the incident rather unconvincing. Once again, details of this incident were not furnished to Dr Grech when he assessed the applicant. It is further evidence that, contrary to what the applicant said to Dr Grech, he had not kept out of trouble.

    [23] Page 574 of the Tribunal book.

27. A Corrections Victoria Incident Report of 12 May 2011 records a prisoner reporting to prison staff that he owed ‘money on the outside and was in trouble as some prisoners want to collect’.[24] That prisoner stated that he had been assaulted by some prisoners. The applicant was apparently standing in the victim’s cell door whilst this was occurring. The prisoners also asked the victim for his outside address and stated to him that he would ‘be dead if he didn’t pay up’. In cross-examination, this Incident Report was shown to the applicant. He said he did not recall the incident. When asked whether he had any reason to doubt the report, his response was ‘[s]orry I don’t know’. Once again, the Tribunal finds it difficult to accept that the applicant could not recall his participation in the incident. This is particularly in the face of no attempt by him, when he had the opportunity to do so, to challenge the accuracy of the Incident Report concerned. It is yet again another example of why his statement to Dr Grech that he had been settled for many years and kept out of trouble was regrettably quite wrong.

    [24] Page 525 of the Tribunal book.

1. There was evidence, particularly from his parents, but also from several other of the witnesses who gave evidence and provided statements, that the applicant would struggle to survive were he to return to South Sudan, for several reasons. He has no known family there that he could draw support from. There are no known social connections that he has, such as friends, who might be able to provide him with some backup or support. There is no evidence that he has access to any community groups or religious networks that would assist him to integrate into the South Sudanese society. There was some evidence of the possibility of his father returning to that country to provide some assistance if he were to go there. However, given the difficulties that the family here face, particularly with respect to the applicant’s mother’s deteriorating health, that seems unlikely. There is also an air of unreality to the suggestion that the applicant’s father might return to South Sudan given that he fled the country as a refugee.

2. The respondent accepts that, notwithstanding the applicant’s age, good health and what it identifies as skills and training, he would suffer significant impediments if removed from Australia to either South Sudan or Sudan. It therefore concedes that the consideration weighs in favour of revocation of the mandatory cancellation of the applicant’s visa.

3. The question then becomes what weight in favour of revocation does the Tribunal apply? The Tribunal considers that, in all circumstances, significant weight in favour of revocation should be allocated.

   Paragraph 9.3 of Direction 90 - Impact on victims

4. No evidence was placed before the Tribunal concerning the impact on victims of the applicant’s offending. Therefore, no weight will be placed on this other consideration.

   Paragraph 9.4 of Direction 90 - Links to the Australian community

   Paragraph 9.4.1 of Direction 90 - The strength, nature, and duration of ties to Australia.

5. Paragraph 9.4.1 of Direction 90 states as follows:

   (1) Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

   (2) Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:

   (a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

   (i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and

   (ii) more weight should be given to the time the non-citizen has spent contributing positively to the Australian community.

   (b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

6. For the purposes of this other consideration, it should be repeated that the applicant has lived in Australia since 9 December 1997, when he arrived here is an 11-year-old child.

7. All of the applicant’s immediate family members are present in Australia. There are his parents, six siblings and several nieces and nephews, the details of some of whom have been previously recorded in these reasons. There is also an extended family which includes aunts, an uncle and cousins. It appears that the majority of the applicant’s extended family are Australian citizens. The respondent accepts that the applicant has a large, close-knit family network in Australia. It is also accepted by the respondent that there is evidence that he has maintained ties with or retained the support of community organisations, notwithstanding his imprisonment.

8. The Tribunal has already recorded in these reasons that the applicant’s family is a particularly close one. Notwithstanding that the applicant has been in custody or immigration detention for approximately 19 years, he has maintained or, as in the case of his nieces and nephews, developed as close a relationship as one possibly could in such difficult or stretched circumstances. It has been noted already that members of the applicant’s family have given evidence at the hearing of this application and provided an array of statements concerning the impact of the decision on them. It was submitted on the applicant’s behalf that such impact would be devastating. The Tribunal acknowledges this fact.

9. Particular mention should be made of the impact of the decision on the applicant’s mother if the mandatory cancellation of his visa is not revoked. As already noted in these reasons, she has significant health problems. Those health problems are accurately detailed in three medical reports from her treating general practitioner, Dr Oludare. The content of those reports is referred to in full. It is not necessary for the purpose of these reasons to articulate those problems, other than to observe that her treating doctor, as explained in those reports, concludes that her prognosis is poor. Dr Oludare also expressed significant concerns about the impact of the decision on her mental health. He has observed her to be suffering from poor sleep, depressed mood, distress and tears as a result of the decision concerned. In his opinion, her mental health will deteriorate if the applicant is repatriated to South Sudan. He also expressed concern about the effect of such emotional distress on her breast cancer, which is currently in remission.

10. Although the applicant left school in the year prior to committing the crime of murder, he did make some limited contribution, particularly by way of his participation in the SAIL program. It is also apparent that, wherever he resided in Australia, he did form friendships and ties with others, particularly in the Sudanese community.

11. When one takes into account all these factors, this consideration weighs in favour of revoking the cancellation of the applicant’s visa. However, the Tribunal considers that limited weight should be placed upon this consideration because of the length of time, namely 19 years, that he has spent in either prison or immigration detention.

    Paragraph 9.4.2 of Direction 90 - Impact on Australian business interests

12. There is no real evidence before the Tribunal that related to this other consideration. There was certainly no evidence that if the applicant were not permitted to remain in Australia, it would significantly compromise the delivery of a major project, or the delivery of an important service in Australia.

    CONCLUSION

13. The primary consideration under paragraph 8.1.1 of Direction 90, ‘The nature and seriousness of the conduct’, by reason of the very serious nature of his offending, committing a particularly serious instance of the crime of murder in the circumstances that he did, must weigh very heavily against the revocation of the mandatory cancellation of the applicant’s visa.

14. With respect to the primary consideration under paragraph 8.1.2 of Direction 90, ‘The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct’, the Tribunal has concluded that there is a continuing risk to the Australian communities that the applicant will engage in further serious conduct in the future. Amongst other things, the Tribunal has considered whether the applicant has truly gained an insight into his offending and whether he has completely rehabilitated himself, given his involvement with drugs, acts of violence or threats of acts of violence whilst in custody. The Tribunal has found that this primary consideration weighs very heavily against revocation of the mandatory cancellation of the applicant’s visa.

15. The Tribunal places limited weight in favour of revocation of the mandatory cancellation of the applicant’s visa under the primary consideration under paragraph 8.3 of Direction 90, ‘Best interests of minor children in Australia affected by the decision’.

16. The primary consideration under paragraph 8.4 of Direction 90, ‘Expectations of the Australian community’, weighs very heavily in favour of non-revocation of the cancellation of the applicant’s visa.

17. Significant weight in favour of revocation of the mandatory cancellation of the applicant’s visa is placed on the other consideration contained in paragraph 9.1 of Direction 90, ‘International non-refoulement obligations’.

18. Similarly, significant weight in favour of revocation of the mandatory cancellation of the applicant’s visa is placed upon the consideration of the ‘Legal consequences of the decision’. This is particularly because of the prospects of the applicant being subject to indefinite detention if there is no revocation of the cancellation.

19. Significant weight in favour of revocation of the mandatory cancellation of the applicant’s visa is placed upon the other consideration contained in paragraph 9.2 of Direction 90, ‘Extent of impediments if removed’.

20. More limited weight is placed upon the other consideration contained in paragraph 9.4.1 of Direction 90, ‘The strength, nature, and duration of ties to Australia’.

21. In terms of weighing up the considerations that apply in favour of or against revocation of the decision to mandatorily cancel the applicant’s visa, the Tribunal notes the provisions of paragraph 7(2) of Direction 90, which states that primary considerations should generally be given greater weight than the other considerations. As noted earlier, the nature and seriousness of the applicant’s offending, and the risk to the Australian community should the applicant reoffend, and the expectations of the Australian community all weigh very heavily against the applicant.

22. The Tribunal also notes the content of paragraph 5.2(5) of Direction 90, that, in some circumstances, the inherent nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify revoking a mandatory cancellation of a visa. The Tribunal considers that the applicant’s offending in committing a particularly vicious murder, even though undertaken when he was very young in the circumstances described, is an example of such a case. The nature of the harm that would be caused if the applicant’s conduct were to be repeated, is obviously so serious, that any countervailing considerations raised by him are insufficient to justify revoking the mandatory cancellation of his visa.

23. The Tribunal finds that the heavy weight against revocation it has attached to the primary considerations in paragraphs 8.1.1, 8.1.2 and 8.4 of Direction 90 collectively outweigh the limited weight attached to the primary consideration in paragraph 8.3 of Direction 90, and the weight attached to the other considerations which the Tribunal has found to be in the applicant’s favour, namely paragraphs 9.1, 9.2 and 9.4.1 of Direction 90, together with the legal consequences of the decision.

    DECISION

24. By reason of the foregoing matters, the Tribunal is not satisfied that there is another reason why the mandatory cancellation of the applicant’s visa should be revoked.

25. Accordingly, the Tribunal affirms the reviewable decision.

I certify that the preceding 262 (two hundred and sixty-two) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

.....................[sgd]............................

Associate

Dated: 7 February 2023

Dates of hearing:

18, 19 and 23 January 2023

Advocates for the Applicant:

Ms Carina Ford, with Ms Nina Merlino

Solicitor for the Applicant:

Counsel for the Respondent:

Advocate for the Respondent:

Carina Ford Immigration Lawyers

Mr Jamie W G Grant

Mr Matthew Daly

Solicitor for the Respondent:

Mills Oakley Lawyers