Chol and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 2920

Chol and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2920 (14 September 2023)
Division:GENERAL DIVISION
File Number: 2020/8585
Re:Dieu Chol
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Britten-Jones
Date:14 September 2023
Place:Melbourne

The Tribunal affirms the decision under review.
....................[sgd]....................................................
Deputy President Britten-Jones
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record including violence whilst in prison and detention – whether there is ‘another reason’ to revoke mandatory cancellation decision - he would face significant impediments and serious risk of harm if removed to South Sudan – the primary considerations of the protection and expectations of the Australian community outweigh the countervailing considerations – decision under review is affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124
NRFX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 21
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
SZRTN v Minister for Immigration and Border Protection [2014] FCA 303
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023)
DFAT Country Information Report for South Sudan dated 5 October 2016
UN High Commissioner for Refugees (UNHCR), UNHCR Position on Returns to South Sudan - Update III (October 2021)
REASONS FOR DECISION
Deputy President Britten-Jones
14 September 2023

This is an application for review of a decision to not revoke the mandatory cancellation of the applicant’s Global Special Humanitarian (class XB) (subclass 202) visa (the applicant’s visa) under s 501(3A) of the Migration Act 1958 (Cth).[1]
[1] All references to legislation are to the Migration Act 1958 (Cth) unless otherwise stated.
The applicant was not represented at the hearing but he had the benefit of legal assistance to prepare his statements and submissions, including a Statement of Facts, Issues and Contentions dated 10 December 2021.
THE DECISION TO CANCEL THE APPLICANT’S VISA AND SUBSEQUENT PROCEDURAL HISTORY
On 11 September 2017 the applicant’s visa was mandatorily cancelled (the cancellation decision) by a delegate of the Minister under s 501(3A) on character grounds due to his substantial criminal record and because he was serving a sentence of imprisonment of over 12 months.
On 18 September 2017 the applicant sought revocation of the cancellation decision and made representations in support of revocation
On 22 December 2020 a delegate of the Minister decided not to revoke the cancellation decision (the non-revocation decision). On 24 December 2020, the applicant applied to the Tribunal for review of the non-revocation. The Tribunal’s affirmation decision was set aside and remitted to the Tribunal. There was another hearing in the Tribunal which again affirmed the non-revocation decision. That decision was also set aside by the Federal Court. The Tribunal heard the matter again on 11 and 12 September 2023.
LEGISLATIVE FRAMEWORK
Under s 501(3A), 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 paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); 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.
The character test referred to in s 501(3A) is outlined in s 501(6). Relevantly, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by sub-s (7)). For the purposes of s 501(6)(a), 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.[2]
[2] Migration Act 1958 (Cth) (Migration Act) s 501(7)(c).
Where a visa has been cancelled as set out above, the Minister has a power under s 501CA(4)(b) 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:
501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)a written notice that sets out the original decision; and
(ii)particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.
ISSUES BEFORE THE TRIBUNAL
The applicant does not pass the character test prescribed under s 501(6)(a) as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has a ‘substantial criminal record’ as defined under s 501(7). Therefore, the applicant cannot rely on s 501CA(4)(b)(i) to have the mandatory visa cancellation revoked.
Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision to assess if there is ‘another reason’ why the cancellation decision should be revoked. This assessment is made by reference to the representations made by the applicant which I am required to read, identify, understand and evaluate.[3] Deciding whether or not to be satisfied that ‘another reason’ exists might be the product of necessary fact finding, or the product of making predictions about the future, or it might be about assessments or characterisation of an applicant’s past offending.[4]
[3] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [22] and [36].
[4] Minister for immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41 at [14].
The applicant does not pass the character test. The only issue for the Tribunal is whether there is ‘another reason’ to revoke the cancellation decision having regard to the principles and considerations in Direction 99.[5]
[5] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023) (Direction 99).
Direction 99
The purpose of Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023) (Direction 99) is to guide decision-makers in performing functions or exercising powers under s 501 and s 501CA. Under s 499(2A), the Tribunal must comply with a direction made under s 499.
The relevant principles that the Tribunal must apply to the task of deciding whether to revoke a mandatory cancellation are set out in paragraph 5.2 of Direction 99 as follows:
(1)   Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on noncitizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)   Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5)   With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.5(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
In making a decision under s 501CA(4), 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 strength, nature and duration of ties to Australia;
(d)the best interests of minor children in Australia; and
(e)expectations of the Australian community.
In making a decision under s 501CA(4), other considerations must also be taken into account, including (but not limited to):
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
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.[6]
[6] Direction 99 at 7.
BACKGROUND
The applicant was born in March 1989 in Malakal in an area that is now South Sudan. He is of Dinka ethnicity and Christian religion. He lived with his mother and father, two brothers and a sister. His father was a rebel soldier fighting against the government. When he was about eight years old, he fled to a refugee camp in Kenya with his aunty, her three children and his uncle. He does not know what happened to his parents and siblings but he assumes they were killed. His aunty has brought him up. As a child he witnessed a lot of violence and endured many hardships.
He came to Australia in 2003 aged 14 years old with his aunty, uncle and cousins. He started drinking at a young age and then turned to drugs like ice and heroin. He did not complete his secondary education and still cannot read or write English. He is able to speak basic English but he used an interpreter during this hearing. He was first convicted of crimes in the Magistrates Court in 2007. He continued to offend in the community up until he received his most lengthy custodial sentence in July 2015.
CONSIDERATION
Protection of the Australian community – 8.1 of Direction 99
When considering the protection of the Australian community, I have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. Entering 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. As required by paragraph 8.1(2) of Direction 99, I give consideration below 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.
The nature and seriousness of the non-citizen’s conduct – 8.1.1 of Direction 99
The applicant’s criminal record is extensive. He has been convicted of more than 50 criminal offences including crimes of violence and drug offences. Most of his convictions occurred between 2007 and 2015 but there is a more recent offence in 2022 whilst in detention.
On 14 September 2011 the applicant received aggregate sentences of imprisonment exceeding 12 months for numerous offences including nine charges of assault police, robbery and possess a dangerous article. He was issued with a notice of intention to consider cancellation of his visa on 22 February 2012. On 17 February 2014 the applicant was convicted of further charges including possess amphetamine, assault with weapon, possess a firearm, theft, robbery and contravention of a community correction order for which he received an aggregate of eight months imprisonment.
The applicant admits that he has been involved in violent crimes. In his 8 December 2021 statement he referred to three violent incidents: first, in a McDonald’s restaurant in 2011 involving a cash register which he picked up and either threw or dropped; second, an altercation in 2012 with a man in Footscray Mall who he badly injured; and, third, in prison in 2016 when he stabbed his cellmate with a ‘shiv’. This last incident resulted in a conviction on 28 May 2018 for recklessly causing injury for which he received a six month term of imprisonment.
On 3 July 2015, the applicant was convicted of intentionally cause serious injury and was sentenced by the County Court of Victoria to a term of four years and nine months imprisonment. It was an unprovoked attack in which the victim was repeatedly punched and kicked in the head. The sentencing judge said that the applicant showed no remorse when interviewed and further said:
Mr Chol, you have committed a serious offence; an offence that carries a maximum penalty of 20 years’ imprisonment. The victim had done nothing to you, or anyone else, to warrant this assault upon him. Your attack was brutal and fierce. It occurred in a public place. When the victim was on the ground you repeatedly punched him to the head. You kicked him twice to the head. He has sustained injuries that continue to impact on the quality of his life. In the circumstances general deterrence, just punishment and denunciation are all highly relevant sentencing considerations.
The incident in detention occurred on 18 November 2022. The applicant had been identified as having engaged in antisocial conduct and was to be moved to a different compound. He did not want to be moved because he feared for his safety. There was an altercation when the applicant stabbed an officer with a ‘shiv’. In his oral evidence to the Tribunal, the applicant tried to downplay the seriousness of this offending by referring to the weapon as like a screwdriver which he used to fix the television. He said that he was mishandled by the Serco officers who then made a false report that he had a knife. He said that in the scuffle the officer had been injured but he did not intend to cause any harm. The applicant’s version of events is not how the sentencing judge described it. Her honour Judge Marich on 19 July 2023 said:
You produced a weapon which is the subject matter of Charge 1 and in doing so you escalated to its use in a threat against people performing their job which is completely unacceptable. I have had a look at the picture of that shiv and it is frightening in its presentation and it was unnecessary. The fact that you were content then to escalate and use it is also of concern.
You then proceeded to cause an injury to two of those officers, one of which caused a puncture wound to the second officer’s buttock which is the subject of your Charge 3, via stabbing, one which caused puncture wounds to the first officer’s arm which led to his hospitalisation. That is Charge 2. Then in relation to the third victim you made three to four attempts to stab at his helmet, neck and chest area, which I have been reminded in some ways is the most serious offence even though you did not quite manage to make contact.
You caused two officers injury, one more serious than the other, but you caused all of them trauma and inconvenience in connection with their job which is unacceptable…
On 19 July 2023 the applicant was convicted of possessing a weapon and causing harm to a public official and was sentenced to 243 days imprisonment.
The significant custodial sentences reflect the seriousness of his offending. He has offended frequently over a significant period of time. The cumulative effect of his offending is very serious. His violence has caused great harm to many persons including public officers carrying out their duties. He has shown a complete disregard for authority. He continued to offend despite a formal warning that his visa may be cancelled. His most recent offence occurred whilst in detention. In summary, the applicant’s offending was extremely serious and is a very significant factor in terms of whether I am satisfied that there is ‘another reason’ to set aside the non-revocation decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 8.1.2 of Direction 99
In considering the need to protect the Australian community from harm, I 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 repeated, is so serious that any risk that it may be repeated may be unacceptable.[7] As required by paragraph 8.1.2(2) of Direction 99, I also 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).
[7] Direction 99 at 8.1.2(1).

In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J (as she then was) in Tanielu v Minister for Immigration and Border Protection.[8] Her Honour states that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.
[8] (2014) 225 FCR 424; [2014] FCA 673.
Nature of harm if further criminal or other serious conduct – 8.1.2(2)(a) of Direction 99
If the applicant were to engage in further similar criminal offending, then the nature of the harm would be very serious because it resulted in serious physical and psychological harm. The sentencing judge said with respect to the offence of intentionally cause serious injury:
The victim has suffered significantly as a result of your assault upon him. He suffers ongoing physical disability. His vision is blurry. He is to undergo another operation on his eyes in the next few months. He suffers discomfort on the right side of his face and, at times, feelings of dizziness. He feels anxious and insecure. He has become impotent. He is undergoing regular counselling. In addition, he has not been able to participate in the life of his community in the way that he used to and he is unable to work. This is not a case where the victim has made a good recovery from his injuries. His life is still profoundly affected three years after you assaulted him.
The offending whilst in detention was violent and directed towards a public official who was carrying out his duty.
Likelihood of further criminal or other serious conduct – 8.1.2(2)(b) of Direction 99
The applicant said that most of his offending was related to alcohol or drug use and that it became worse when he went to Melbourne. He used to take marijuana and ice and then he became addicted to heroin for which he is still receiving treatment. He expresses remorse and says that he will not reoffend because he has stopped using and will not do so in the future. His plan is to return to his family in Perth and away from those who had a bad influence on him in Melbourne. The applicant said that much of his drug taking and criminal behaviour occurred in Melbourne. I consider that he displayed some insight by recognising that a return to Perth would benefit him if released. He wants to help his oldest son who is now about 15 years old and lives with his mother. She provided a written statement in support of the applicant. He would be near his aunty who is like a mother to him. He could live with her and her family. He has seven cousins in Perth who could help him to find work. His preference is to return to working as a bricklayer but he would also accept work in a chicken factory. Whilst in prison the applicant engaged in a 40-hour intensive substance use program, an interpersonal relationships program, a coping inside – managing loss program and a high intensity violence intervention program amongst others. He also obtained certificates through the Kangan Institute. He is confident that with his new skills and qualifications from courses done in prison plus his family contacts, he will have no difficulty finding employment. These are all positive factors that would help him if released and will reduce his likelihood of reoffending.
I take into account the written and oral evidence from the applicant’s aunty and cousins and his ex-partner in Perth who have all offered to support him if he were released. There is also a written statement from his uncle who offers general support including assistance to get a job at the chicken factory where he works. The uncle is a community leader who would be a good influence on him and be able to provide very helpful assistance to enable him to reintegrate into society after such a long time outside of the community. This support from his family is significant and will provide a stable environment for the applicant if released. The desire to help bring up his children provides a genuine incentive to the applicant to stay out of trouble.
I take into account that the applicant completed a high intensity violence intervention program from June to November 2017. This course was based on cognitive behavioural therapy principles and was designed to reduce the risk of violent reoffending. Whilst the applicant has engaged in rehabilitative programs targeted to violence and has expressed remorse in written statements and when giving evidence before the Tribunal in 2021 and 2022, it is of concern that he committed the act of violence whilst in detention in November 2022 which was well after his rehabilitative programs had been completed. The applicant was not under the influence of drugs or alcohol for this offence but he said that he was stressed from fear of being moved to a different compound. The applicant’s violent offending in November 2022 shows that he has not learnt from his past mistakes and that he is not adequately rehabilitated. In particular, it shows that the applicant has not learnt how to deal with things when they do not go his way. His response to being told that he must move within detention to an area that he considered was dangerous was to resort to violence.
In his 2021 statement the applicant explained that as a child he was surrounded by a lot of violence and he learnt that violence was the way that disputes were resolved. There is an extensive report from a qualified psychologist dated 17 July 2019 which describes how violence was routine within the applicant’s community when growing up. There was an expectation that daily conflict would be resolved by violence. The applicant said that it had taken a long time to change that mentality and to learn how to manage his anger. He said that he had learnt from the courses he had taken in prison and that he now knows that violence is unacceptable for any reason. He referred to the beneficial effects of counselling and psychology sessions. That was his evidence in December 2021 but his conduct in November 2022 shows that he has not changed.
I note that a psychologist’s report dated 17 July 2019 included an opinion that the applicant’s risk of committing further violent offences is high. That risk was realised in November 2022 and I consider that there remains a high risk of further violent offending.
The applicant said in closing that, if released, his movements and activities will be restricted and monitored because of the Court orders which will apply. He intends to simply go to work, stay at home and report as required. He will not reoffend in these circumstances. He also said that prior to his most recent violent act in detention he was doing well which showed that he could improve himself. Whilst I take into account the very good intentions expressed by the applicant, I am not able to accept what he says about not reoffending. He has had good intentions in the past and has previously promised to not reoffend but has done so. He has been warned in the past of the consequences of further offending but it made no difference. I consider that the applicant has not shown that he has adequately addressed his propensity for violence as a way of resolving issues. The applicant committed serious crimes over a lengthy period of time and there remains a significant risk of further similar behaviour if he is released. I consider that this high risk of further re-offending is unacceptable. This risk is reflected in a supervision order granted under the Serious Offenders Act 2018 (Vic) on 9 March 2023 which recorded that the Court was satisfied that he posed an unacceptable risk of committing a serious violence offence if released into the community. In these circumstances I am unable to accept his statements before me that he has finally learnt his lesson and that he will not reoffend.
In conclusion, I find that the applicant poses a real risk of further violent offending and that he presents an unacceptable risk to the Australian community.
Conclusion as to protection of the Australian community – 8.1 of Direction 99
The Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens.[9] The applicant has committed serious crimes and has shown that he is not adequately rehabilitated in particular because of his most recent violent offending whilst in detention. There remains a significant risk of violent re-offending and therefore, the protection of the Australian community is a factor that weighs heavily against the applicant.
[9] Direction 99 at 8.1(1).
Family Violence – 8.2 of Direction 99
The Government has serious concerns about conferring the privilege of remaining in Australia on non-citizens who engage in family violence. The applicant has not been convicted of any offences involving family violence but the respondent contended there was evidence of family violence. The evidence suggests that the applicant was involved in a volatile relationship with a former partner. The applicant admitted before the Tribunal in 2021 that whilst drunk he was violent towards his pregnant partner and that he ‘lost it’ and kicked her. That conduct occurred in March 2009 when a domestic violence order was issued against the applicant in Queensland. The applicant admitted before me that he kicked his partner in the tummy but he said that he was drunk at the time and that if he was sober he would not have done it.
In his December 2021 statement the applicant said:
[15] I am aware that there have been domestic violence orders taken out against me in the past. I don’t have a clear memory the circumstances leading to these orders as was taking a lot of drugs during that period. I am ashamed to think that I have ever been violent or threatening towards women. My father was a violent man and used to beat my mother. I never wanted to hurt women the way that he did. I am determined never to give any woman any reason to fear harm from me again. I think that staying away from alcohol and drugs will ensure that this does not happen.
The reference above to a domestic violence order relates to a protection order made on 11 March 2009 in the Magistrates Court of Queensland which recorded that the court was satisfied that the applicant had committed an act of domestic violence and was likely to do so again. The evidence does not establish further acts of domestic violence. I take into account that this was an isolated event and that he has expressed appropriate remorse for his conduct. He appears to have insight into the harm that is caused by domestic violence. Nevertheless, the Government has serious concerns about those who engage in family violence, and I consider that this is a factor that weighs against revoking the cancellation decision. I give less weight to it because it was an isolated incident and he accepted responsibility and understood the impact of his behaviour.
Strength, Nature and Duration of Ties to Australia – 8.3 of Direction 99
This primary consideration provides at paragraph 8.3 of Direction 99:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) In considering a non-citizen's ties to Australia, decision-makers should give more weight to a non-citizen's ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4) Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) the length of time the non-citizen has resided in the Australian community, noting that:
i.considerable weight should be given to the fact that a non citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii.less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non citizen began offending soon after arriving in Australia.
The applicant has lived in Australia since he was 14 years old. He spent part of his formative years in Australia and attended school. He has held some employment since leaving school. In his personal circumstances form dated 16 September 2017, the applicant recorded that he worked at KFC in 2006, as a bricklayer from 2006 to 2008, as a factory worker from 2008 to 2011 and he said that he has done some volunteer work for African youth. In Melbourne in 2011 he worked in an African shop for a while. Then in 2012 he got a job in South Australia working in a meat factory for two years until he was convicted and sent to gaol. His offending began in 2007 which was relatively soon after his arrival. The applicant then embarked on a life of alcohol, drugs and crime. His criminal record shows that his first period of imprisonment was in 2011. It cannot be said that overall he has made a positive contribution to the Australian community.
The immediate family members of the applicant are his aunty and uncle and his cousins who provided written statements of support. They are all very supportive of the applicant and would be very sad if he were not released. Since the applicant was eight years old he has been brought up by his aunty and surrounded by her family. His aunty has been like a mother to him. She gave oral evidence through an interpreter that she has cared for him since he was a baby and that she would continue to do so if he were released. She and her family want the applicant to be released so that he can resume his place in their family. They will be devastated if the applicant remains in detention. The applicant also has four children who were born in Australia. Their interests will be considered separately but I give more weight to the applicant’s ties to Australia because of these children. He wants to get out of detention so he can be with his children and financially support them. These family connections represent a very significant tie to Australia.
I conclude that the strength, nature and duration of the applicant’s ties to the Australian community through his family are significant. The applicant’s ties through work or volunteering are less significant. The applicant arrived in Australia in 2003 when he was 14 years old. He is now 34 years old, so he has spent most of his life in Australia; including during those formative teenage years. I conclude that the applicant’s ties to Australia is a factor weighing moderately in favour of revoking the cancellation decision.
Best interests of minor children – 8.4 of Direction 99
I must determine whether non-revocation of the cancellation of the applicant’s visa is, or is not, in the best interests of a child who is affected by the decision. The following factors that I must consider where relevant to this application include:[10]
(a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e) whether there are other persons who already fulfil a parental role in relation to the child;
(f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
[10] Direction 99 at 8.4(4).
The applicant has four children from three different women. He gave evidence that he loves his children and wants to play a role with bringing them up in the future. He has made every effort to maintain contact with them and speaks to them regularly. I have no doubt that his evidence is genuine. He is clearly missing his children and would love to spend more time with them. Having said that, he has not set a good example to his children by living a life of drugs and crime resulting in significant periods of imprisonment. Nor has he been present in the community to help the children for much of their lives.
There was reference to a fifth child in the applicant’s statements dated 15 February 2021 and 8 December 2021 but the applicant is not sure whether the child is his. He is not sure when the child was born. The applicant said that he does not see the child who would be eight years old (at that time). There is no reference to this other child in the applicant’s statements of 24 January 2020 or 6 September 2023 which refer to the other four children. The child was not listed on the personal circumstances form dated 16 September 2017. I consider that there is insufficient evidence as to whether this child is the biological child of the applicant. There is insufficient evidence on which to make a determination as to the interests of this child in any event. There was no evidence to establish that this child should be taken into account.
The applicant’s oldest son was born in 2008, is 15 years old and lives in Perth. The mother of this child provided a written statement that her son has maintained a close relationship with the applicant despite his incarceration. The applicant lived with his son in Melbourne for about two years. She supports his future involvement with their son. I find that the applicant if released would likely play a significant and positive parental role, which he could do because he plans to live in Perth. This son would benefit from having his father in the community with him. It is in the son’s best interests for the cancellation decision to be revoked.
The applicant has two younger children who live with their grandmother in Melbourne. They are 11 and 13 years old. He would like them to come and live with him in Perth but, if not, he would visit them in Melbourne and pay for them to come to Perth during school holidays. He said that it is important for them to have a father figure in their lives. I agree with this. It would be in their best interests for the cancellation decision to be revoked, although I note that the applicant has been absent for most of their lives and that he would have limited direct contact in the future if they stayed in Melbourne.
The applicant’s youngest child is a daughter who was only six months old when he went into prison. She is now 10 years old and she has made drawings and cards in which she expresses her love for her father. They seem to be especially close and he speaks to her once or even twice a day. She lives in Melbourne which would restrict contact in the future if the applicant lived in Perth, but nevertheless, I find it would be in the best interests of this daughter if the cancellation decision was revoked so they could at least spend some time together.

I conclude that the best interests of minor children is a factor that weighs very heavily in favour of revoking the cancellation decision. Whilst the applicant has not been present for much of their lives, I accept that he wants to make up for that and play a parental role in the future. The children would benefit from having their father in their lives.
The applicant in his Statement of Facts, Issues and Contentions dated 10 December 2021 submits that separating the applicant from his children may be in breach of the Convention of the Rights of the Child and the International Covenant on Civil and Political Rights. I reject that submission because there is no breach of international obligations by removing a person from Australia in the circumstances here. In that regard I refer to the reasons expressed by Rangiah J said in NRFX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 21.
Expectations of the Australian community – 8.5 of Direction 99
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to remain in Australia.[11] The applicant has failed to obey the laws of Australia and would therefore be expected to be removed from the community. His criminal conduct was very serious and there is an unacceptable risk of further re-offending. I take into account that the Australian community would have a higher level of tolerance of the applicant’s criminal past because he has lived in Australia for most of his life, including during his formative years as a teenager. The applicant has been in Australia for 20 years since he was 14 years old. The expectations of the Australian community is a factor that weighs against the applicant and I give it significant weight in all the circumstances.
[11] Direction 99 at 8.5(1).
Other Considerations
In deciding whether there is ‘another reason’ to revoke the cancellation of the applicant’s visa, I must also take into account the ‘other considerations’ listed in Direction 99, but these are not exhaustive.[12]
[12] SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303.
Legal Consequences of Decision – 9.1 of Direction 99
This other consideration provides at paragraph 9.1 of Direction 99:
(1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen.
(2) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
(3) International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
The applicant has articulated the prospect of Australia breaching its non-refoulement obligations as a reason for revoking the cancellation decision. This is in addition to, and distinct from, his underlying claimed fear of harm if removed to South Sudan.
I note that the risks of harm that the applicant will face if removed are also relevant to non-refoulement obligations and the extent of impediments if removed.
The respondent submits that the Tribunal is entitled to and should defer consideration of non-refoulement obligations because it is open to the applicant to apply for a protection visa.
The applicant has not applied for a protection visa but it is open to him to do so. Consequently, the applicant is not the subject of a protection finding (as defined in s 197C) and paragraph 9.1.2 of Direction 99 is relevant:
9.1.2 Non-citizens not covered by a protection finding
(1)Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.
(2)However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person's representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.
(3)Non-refoulement obligations that have been identified for a non-citizen with respect to a country, via an International Treaties Obligations Assessment or some other process outside the protection visa process, would not engage section 197C(3) to preclude removal of the non-citizen to that country. In these circumstances, in making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen's criminal offending or other serious conduct. However, that does not mean an adverse decision under section 501 or 501CA cannot be made for the non-citizen. A refusal, cancellation or nonrevocation decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non citizen makes a valid application for a protection visa, the non-citizen would not be liable to be removed while their application is being determined.
The decision of the High Court in Plaintiff M1/2021 v Minister for Home Affairs[13] (Plaintiff M1/2021) provides that I am required to read, identify, understand and evaluate the representations made by the applicant. Those representations included a claim of non-refoulement under domestic law. I intend to defer assessment of whether the applicant is owed non-refoulement obligations because it is open to the applicant to apply for a protection visa. That does not mean that I ignore the representations made by the applicant. Plaintiff M1/2021 makes it clear that a decision-maker must not do that,[14] but ‘one available outcome’ is the deferral of the substantive assessment of such a claim.[15] This is consistent with the terms of paragraph 9.1.2 of Direction 99.
[13] [2022] HCA 17.
[14] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [23].
[15] CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124 at [105].
In this case, the applicant has clearly raised claims which may give rise to international non-refoulement obligations. Paragraph 9.1.2(2) of Direction 99 provides that it is not necessary at the s 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. That sub-paragraph applies in this case and allows the decision-maker to defer substantial assessment of non-refoulement issues, as I have decided to do in this matter.
Applicant’s representations including as to risk of harm
The applicant made representations concerning risk of harm in South Sudan.
The High Court has provided the following guidance for this situation:[16]
[37] … [The Tribunal is] not required to determine whether the plaintiff was owed non-refoulement obligations (by conducting an assessment of the merits of the plaintiff's claim) in the same manner, or to the same extent, as would be called for by a direct application of the international instruments to which Australia is a party or by reference to the domestic implementation of those obligations.
…
[39] Where the cancelled visa is not a protection visa and a decision-maker defers assessment of whether non-refoulement obligations are owed to permit a former visa holder to avail themselves of the protection visa procedures provided for in the Migration Act, it nevertheless may be necessary for the decision-maker to take account of the alleged facts underpinning that claim where those facts are relied upon by a former visa holder in support of there being “another reason” why the Cancellation Decision should be revoked.
(Footnotes omitted)
[16] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [37] and [39].
CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[17] (CKT20) makes clear that I am required to consider facts underpinning the claim such as the risk of harm arising from violence and instability along ethnic lines. In CKT20 the Full Court of the Federal Court rejected the Minister’s submission that there was no obligation to consider a claim based on ethnicity in South Sudan.[18]
[17] [2022] FCAFC 124.
[18] CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124 at [97] to [106].
The applicant said he was scared of being removed to South Sudan and feared being killed by the people who killed his family. He fears being forced into the military. He fears persecution as a western returnee who may be perceived as a traitor. He fears harm from the ongoing instability and insecurity in South Sudan. The applicant is Dinka and would face ethnic discrimination and even persecution, which is made more likely because his father was a rebel soldier who fought against the government.
It is apparent from the DFAT Country Information Report for South Sudan dated 5 October 2016, and a more recent report from the United Nations High Commissioner for Refugees (UNHCR)[19] that the situation in South Sudan remains dire. There are violations of international humanitarian law, the denial of humanitarian assistance to those in need, restricted rights of freedom of association and a very poor health system. South Sudan continues to suffer from long term political, inter-ethnic and communal conflict and a weak rule of law. UNHCR considers that persons fleeing South Sudan are likely to meet the criteria for refugee status. The applicant would be at risk of harm from ethnic violence because he is a Dinka.
[19] UN High Commissioner for Refugees (UNHCR), UNHCR Position on Returns to South Sudan - Update III (October 2021)
In summary, I accept the applicant’s concerns as expressed in his representations that he will likely face serious harm if removed to South Sudan. It is not in dispute that the applicant left South Sudan as a child with his family due to the war. The applicant would have no family support or other network if removed to South Sudan. He may be forced to join the army. The risk of harm is a factor that weighs heavily in favour of revocation of the cancellation decision.
If the cancellation decision is not revoked, s 198(2B) would require the applicant’s removal from Australia if he did not make an application for another visa. If he does make an application for another visa, he would be liable to be removed from Australia under s 198(6) if that application were to be refused.
If the cancellation decision is revoked, it is taken not to have been made pursuant to s 501CA(5). In that event, the applicant would not meet the description of an unlawful non‑citizen and would not be subject to removal from Australia as mandated by s 198(2B) or s 198(6) as the case may be.
If the cancellation decision is not revoked, he will either be removed to South Sudan or face ongoing detention. In either event, the consequence for the applicant would be serious. In South Sudan he would likely be harmed and face discrimination for being a Dinka and a western returnee. In detention, his mental health will deteriorate, and he will continue to be separated from his family.
I note that if the visa cancellation is not revoked, the applicant may remain in detention whilst any protection visa application is considered or while the Minister considers the possibility of re-settlement or the exercise of a personal discretion in favour of the applicant. There is no evidence before me suggesting that re-settlement or the exercise of a personal discretion would be considered. Ongoing detention would impact the mental health of the applicant and would have adverse consequences. In WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[20] Kenny and Mortimer JJ considered the impact of further detention, which is apposite to the applicant:
… The period of a person’s loss of liberty may be very lengthy, and have no chronologically fixed endpoint, being dependent on the completion of various administrative and executive steps and inquiries. The person concerned will have no accurate conception of when her or his detention might end.
[20] [2021] FCAFC 55 at [132].
The prospect of further detention is a factor that weighs in favour of revoking the cancellation decision.
Extent of impediments if removed – 9.2 of Direction 99
Direction 99 requires that I consider the extent of any impediments that the applicant may face if removed from Australia to South Sudan in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the applicant’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to him in that country.
The applicant is in relatively good physical health, but he has been diagnosed with post-traumatic stress disorder and depression, for which he receives ongoing treatment. A psychiatric assessment in 2015 referred to psychotic episodes including auditory hallucinations for which he has since received anti-psychotic medication and mood management medication. This treatment is unlikely to be available in South Sudan given that it is well known that South Sudan has limited mental health facilities. To treat his past addiction to heroin, the applicant is still on a methadone program and it is unlikely that he would be able to continue with that treatment in South Sudan. These limited treatment opportunities would have a significant detrimental impact on his physical and mental health.
I find that the applicant would face significant impediments if removed to South Sudan and he would have great difficulty establishing himself and maintaining basic living standards. This arises primarily because the applicant left South Sudan when he was a young child and has no network of family or friends to support him there. The matters referred to above in relation to risk of harm are also relevant to extent of impediments and I will not repeat them here. The impact of the humanitarian crisis and ongoing tribal instability in South Sudan would have a significant impact on the applicant because of his unfamiliarity with the country and his lack of family or other support. There would be substantial cultural barriers, made worse by his lack of education, which would create significant impediments on the applicant establishing himself and maintaining a basic living standard in South Sudan. His health issues would also create impediments.
This is a factor that weighs heavily in favour of revocation of the cancellation decision.
Impact on victims – 9.3 of Direction 99
There was no evidence of impact on victims within the meaning of the Direction. This factor is neutral.
Impact on Australian business interests – 9.4 of Direction 99
There was no evidence of impact on Australian business interests within the meaning of the Direction. This factor is neutral.
CONCLUSION AS TO WHETHER TO REVOKE THE CANCELLATION OF THE VISA
I have considered the specific circumstances relating to the applicant as part of my consideration. I am now required to carry out the evaluative exercise of weighing up the factors to determine whether I am satisfied that there is ‘another reason’ to revoke the cancellation decision.
The primary considerations of the protection and expectations of the Australian community and, to a lesser extent, family violence weigh in favour of not revoking the cancellation decision. The countervailing considerations are the applicant’s ties to Australia, the best interests of children, the extent of impediments if removed, the risk of harm if removed and the prospect of indefinite detention. This is a case where there is an unacceptable risk that the applicant will engage in further violent criminal conduct. Whilst the applicant has made commendable efforts to rehabilitate himself, he has not shown that he is adequately rehabilitated. His violent offending in detention with a weapon against the officers doing their duty is clear evidence that the applicant continues to believe that the way to resolve disputes is through violence. The Australian community expects a visa to be cancelled where there is a real risk of physical harm to the community. The risk of further violent offending remains high.
As an adult in the community, the applicant engaged in frequent offending often involving violence. He continued to act violently even when in prison and detention. He has clearly not learnt his lesson. This high risk of harm to the community outweighs the countervailing considerations. I take into account that his children and family would be better off if he were released and that the prospect of indefinite detention or return to South Sudan will have very significant consequences for the applicant, but the risk to the community if he is released is too great. He has forfeited his privilege of remaining in Australia.
I am not satisfied that there is another reason to revoke the cancellation decision.
The decision of the Tribunal is to affirm the reviewable decision.

I certify that the preceding 85 (eighty-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones

........................[sgd]................................................
Associate
Dated: 14 September 2023

Dates of hearing: 11 and 12 September 2023

Applicant: Self-represented

Advocate for the Respondent: Gabrielle Ho

Solicitors for the Respondent: Clayton Utz

Dates of hearing:	11 and 12 September 2023
Applicant:	Self-represented
Advocate for the Respondent:	Gabrielle Ho
Solicitors for the Respondent:	Clayton Utz