Chol and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2022] AATA 3816
•14 November 2022
Chol and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3816 (14 November 2022)
Division:GENERAL DIVISION
File Number: 2020/8585
Re:Dieu Achuil Chol
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
Decision
Tribunal:R Cameron, Senior Member
Date:14 November 2022
Place:Melbourne
The Tribunal affirms the decision under review.
..................[sgd]......................................................
R Cameron, Senior Member
CATCHWORDS
MIGRATION – mandatory visa cancellation – Class XB Subclass 202 Global Special Humanitarian Visa –– failure to pass character test – substantial criminal record – intentionally causing serious injury– assault – international non-refoulement obligations – Ministerial Direction No. 90 applied – primary and other considerations - reviewable decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)Migration Act 1958 (Cth)
CASES
Ali v Minister for Home Affairs (2020) 380 ALR 393
FYBR v Minister for Home Affairs [2019] FCAFC 185
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
SECONDARY MATERIALS
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
R Cameron, Senior Member
14 November 2022
Introduction
The applicant seeks a review of a decision, made on 22 December 2020 by a delegate of the respondent, not to revoke the mandatory cancellation of the applicant’s Class XB Subclass 202 Global Special Humanitarian (Permanent) visa (“the visa”), under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) (“the reviewable decision”).[1]
[1] All references to legislation are to the Migration Act 1958 (Cth) unless otherwise stated.
The evidence before the Tribunal
There was viva voce (oral) and documentary evidence before the Tribunal. The following persons gave viva voce evidence:
(a)the applicant;
(b)his aunty;
(c)a cousin; and
(d)another cousin.
The documentary evidence consisted of a hearing bundle.[2]
[2] Exhibit R1.
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 ss (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.[3]
[3] Migration Act 1958 (Cth) 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.
Under s 499(1), the Minister may give written directions to a person or body having functions or powers under the Act, if such directions concern the performance of those functions or the exercise of those powers. When such a direction has been given in accordance with that section, a person or body having those functions or powers under the Act must comply with such direction (s 499(2A)). The Tribunal must comply with a direction made under this Act. Currently, the applicable direction is Direction No. 90 – Migration Act 1958 – Direction under s 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA (“Direction 90”).
DIRECTION 90
It is not necessary to reproduce paragraphs of Direction 90. However, it is useful to refer to several of them.
Paragraph 4 “Interpretation” contains a very broad definition of the term “family violence”. The term is defined to mean violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Examples of behaviour that may constitute family violence include an assault or a sexual assault or other sexually abusive behaviour.
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. The contents of that paragraph are 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.
Paragraph 6 “Exercising discretion” provides that, informed by the principles in paragraph 5.2, account must be taken of the considerations identified in paragraphs 8 “Primary Considerations” and 9 “Other considerations” where relevant to the decision.
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.[4]
[4] Direction 90 at 7.
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.
Paragraph 9 “Other Considerations” mandates that in deciding whether to revoke the mandatory cancellation, the following are other considerations:
(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
There is ample evidence to demonstrate that the applicant has made representations in accordance with s 501CA(4)(a).
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
The applicant concedes that he does not pass the character test.[5] This concession was appropriately made under s 501(6)(a), which states that a person does not pass the character test if they have a substantial criminal record. A substantial criminal record is defined in s 501(7)(c). It provides that a person has a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more.
[5] This concession is made in paragraph 8 of the applicant's Statement of Facts, Issues and Contentions. It was also made by the applicant’s counsel in submissions.
On 3 July 2015, the applicant was convicted in the County Court of Victoria of intentionally causing serious injury and was sentenced to a term of imprisonment of four years and nine months.[6]
[6] The reasons for sentence of His Honour Judge Grant of 3 July 2015 are Attachment B to document G2 of the G documents.
BACKGROUND AND OFFENDING
The applicant was born in what is now known as South Sudan on 4 March 1989. He arrived in Australia as a 14-year-old on 12 November 2003. He is of Dinka ethnicity and the Christian religion.
Until approximately the age of seven the applicant lived with his father, who was a rebel soldier, his mother, two brothers and sister. When the applicant was approximately seven years old, he went to live with his aunty and her three children. When the applicant was approximately 11 or 12 years old his aunty and uncle (his father’s youngest brother) fled Sudan and travelled to a refugee camp in Kenya.
He does not know what happened to his parents and siblings. Until recently he believed they had perished in the conflict in Sudan. However, more recently his aunty had indicated to him that they do not know for sure whether they were in fact dead. The applicant is not aware of any family living in Sudan.
After arrival in Australia the applicant attended a local high school for approximately two years but left school at the age of 16. He did so because he was unhappy there and found it difficult to get on with other students at the school. He stated that he was called many names by other students and found it difficult to manage. He was moved three times to different schools to see if things would improve; but unfortunately, they did not. He does not read or write English.
Upon leaving school he commenced working as a kitchen hand at KFC. When he turned 18 he worked full-time at a chicken factory as a factory hand. Apparently, this job was secured for him by his uncle, who had worked there for some time. He worked at the chicken factory for approximately two years. Subsequently, he worked as a labourer doing bricklaying, until he travelled to Melbourne in approximately 2011.
The applicant has had significant problems with drugs and alcohol over many years. He started drinking at a young age; and when he moved to Melbourne, he commenced taking drugs.
The applicant has a lengthy history of offending. It is appropriate to record this pattern of offending in tabular form.
Date Offending 11 July 2007 The applicant was convicted in the Perth Magistrates’ Court of:
(a) “breach of bail” (2 counts); and
(b) “disorderly behaviour in a public place”.
Fined $900.
3 September 2007 The applicant was convicted in the Perth Magistrates’ Court of
“no drivers licence”.
Fined $100.
30 October 2007 The applicant was convicted in the Rockingham Magistrates’ Court of “obstructing public officers”.
Fined $150.
14 November 2007 The applicant was convicted in the Perth Magistrates’ Court of:
(a) “breach of bail undertaking”;
(b) “disorderly behaviour in a public place”;
(c) “assault public officer”; and
(d) “no drivers licence (suspended)”.
Sentenced to 50 hours of community work on each charge.
22 December 2008 The applicant was convicted in the Beenleigh Magistrates’ Court of:
(a) “wilful damage”; and
(b) “assault or obstruct police officer” (2 counts).
Fined $1200.
6 January 2009 The applicant was convicted in the Brisbane Magistrates’ Court of “refused entry to licensed premises”.
Fined $225.
16 February 2009 The applicant was convicted in the Beenleigh Magistrates’ Court of:
(a) “contravene direction or requirement”; and
(b) “possessing dangerous drugs”.
Fined $300.
19 May 2009 The applicant was convicted in the Perth Magistrates’ Court of:
(a) “give false personal details to police”; and
(b) “fail to obey order given by an officer”.
Fined $500.
20 May 2009 The applicant was convicted in the Perth Magistrates Court of “no drivers licence (disqualified from holding or obtaining)”.
Fined $400.
15 June 2009 The applicant was convicted in the Murray Bridge Magistrates Court of “loitering”.
Fined $300.
15 June 2009 The applicant was convicted in the Joondalup Magistrates Court of:
(a) “no authority to drive”; and
(b) “exceed 0.08g alcohol per 100ml of blood”.
Fined $600.
2July 2009 The applicant was convicted in the Perth Magistrates Court of “disorderly behaviour in a public place”.
Fined $500.
27 October 2010 The applicant was charged in the Melbourne Magistrates Court with “possess cannabis”.
No conviction recorded.
3 November 2010 The applicant was charged in the Melbourne Magistrates Court with “possess heroin”.
No conviction was recorded, and the applicant was fined $250.
14 September 2011 The applicant was convicted in the Melbourne Magistrates Court with:
(a) “handle/receive/retention stolen goods”;
(b) “theft from shop” (3 counts);
(c) “shop theft-less than $600”;
(d) “handle/receive/disposal of stolen goods”;
(e) “fail to answer bail” (2 counts);
(f) “deal property suspected proceeds of crime” (2 counts);
(g) “criminal damage (intentional damage/destroy)”;
(h) “wilful and obscene exposure in public”;
(i) “unlawful assault”; and
(j) “use indecent language in public place”.
The applicant was sentenced to an aggregate 3 months imprisonment on each charge, with one month to be served concurrently.
The applicant was also convicted in the Melbourne Magistrates Court with:
(a) “theft of a motor vehicle” and sentenced to an aggregate of three months imprisonment, licence cancelled and disqualified for two years;
(b) “robbery” and sentenced to three months imprisonment;
(c) “assault police” (9 counts) and sentenced to an aggregate of two months imprisonment;
(d) “make threat to kill-intending fear, unlawful assault” and sentenced to an aggregate three months imprisonment;
(e) “robbery” and sentenced to give months imprisonment; and
(f) “possess dangerous article in public place” and sentenced to an aggregate three months imprisonment.
22 November 2011 The applicant was convicted in the Dandenong Magistrates Court with:
(a) “own general category handgun without a licence”; and
(b) “possess unregistered general category handgun”.
Fined $400.
29 May 2012 The applicant was convicted in the Perth Magistrates Court of “exceed speed limit speed zone; between 10 and 19 kmh”.
Fined $150.
5 March 2013 The applicant was convicted in the Sunshine Magistrates Court of:
(a) “shop theft - less than $600 robbery”;
(b) “threat to inflict serious injury”; and
(c) “theft”.
The applicant was placed on a Community Corrections Order for 18 months and sentenced to 75 hours of community work.
15 July 2013 The applicant was convicted in the Melbourne Magistrates Court of “dealing with property suspected to be the proceeds of crime”.
Fined $750.
17 February 2014 The applicant was convicted in the Broadmeadows Magistrates Court of:
(a) “contravening a community corrections order”;
(b) “shop theft - less than $600 robbery”;
(c) “threat to inflict serious injury”;
(d) “theft”;
(e) “theft from shop (shop stealing)”;
(f) “failure to answer bail”;
(g) “assault to prevent lawful detention”;
(h) “make threat to kill”;
(i) “unlawful assault”;
(j) “possess a controlled weapon without excuse”;
(k) “prohibited person possess a firearm”;
(l) “assault with a weapon”; and
(m) “possess amphetamine”.
The applicant was sentenced to an aggregate eight months imprisonment and his community corrections order was cancelled.
3 July 2015 The applicant was convicted in the County Court of Victoria of “intentionally causing serious injury”.
The applicant was sentenced to four years and nine months imprisonment.
(On 19 October 2016 the Court of Appeal of the Supreme Court of Victoria refused an application for leave to appeal from this sentence.)
28 May 2018 The applicant was convicted in the Bendigo Magistrates’ Court of “recklessly causing injury”.
The applicant was sentenced to a term of six months imprisonment.
Primary consideration 1 - protection of the Australian community
Paragraph 8.1(1) of Direction 90 provides that when considering the protection of the Australian community, the Tribunal should acknowledge 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, decision-makers 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.
Paragraph 8.1(2) further states that decision makers should 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.
The nature and seriousness of the applicant’s conduct to date
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.
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.
Paragraph 8.1.1(1)(b)(ii) of Direction 90 also provides that, without limiting the range of conduct that may be considered serious, crimes committed against vulnerable members of the community are considered by the Australian Government and the Australian community to be serious.
As already noted, the applicant has an extensive criminal history. He arrived in Australia in November 2003, and his first offending was recorded on 11 July 2007 after he had turned 18 years of age. Indeed, the applicant has conceded that there is no dispute that he has seriously offended in a violent way.[7]
[7] Paragraph 42 of the applicant's Statement of Facts, Issues and Contentions is referred to.
It is appropriate to examine some of the more notable offences that have been committed by the applicant.
Firstly, there were the 2011 convictions which were said to have arisen from what was described during the application as the “McDonald’s incident”. These convictions included unlawful assault, criminal damage (intentional damage and destroy property), theft, failure to answer bail and wilful and obscene exposure in public. According to a summary, the offending occurred on 3 April 2011 at approximately midnight.[8] The applicant exposed his genitals to male and female workers in a McDonald’s restaurant and told them to perform oral sex. The applicant then walked behind the counter and attempted to intimidate one of the staff members making further statements such as “suck my dick”. The manager then refused the applicant and his associates service and requested that they leave the premises. The applicant then attempted to utilise a container of straws to strike the manager over the head but was stopped by his associate. The applicant then attempted to remove and drag two of the cash registers away and threw them at the manager. There was significant damage to the cash registers. Shortly prior to leaving the premises, the applicant again told staff to “suck my dick” and exposed his penis to two female staff members. The applicant was uncooperative with police once arrested and interviewed. The applicant continues to deny that he exposed his genitals during that event.[9] The Tribunal does not accept this denial. As noted earlier, the applicant was sentenced to an aggregate term of imprisonment of three months for this offending.
[8] This account of the applicant's offending which the Tribunal accepts is taken from a Detention and Supervision Order Assessment Report dated 17 July 2019 prepared by Anna Hoy, a Senior Psychologist at paragraph 18. It is at page 427 of the Hearing Bundle.
[9] The applicant maintained his denial both in the witness box and to the author of the Detention and Supervision Order Assessment Report, Anna Hoy. Presumably, the Magistrate who heard the matter accepted the evidence of the victim beyond reasonable doubt and convicted the applicant of wilful and obscene exposure. It is of concern to the Tribunal the applicant has not accepted this conviction and poses the question whether he really has gained an appropriate level of insight into his offending. Also given the applicant's admission at the hearing of the application when he was in the witness box that he had been heavily drinking on the evening of the incident and was very intoxicated it seems to the Tribunal more probable than not that the applicant's recollection of what occurred on that evening is likely to be faulty at the very least.
The applicant submitted that he had been drinking on the evening of the McDonald’s incident and was very intoxicated. He said that whilst he was at McDonald’s it seemed to him that everyone else was being served before him. When he was served, he was told that the restaurant had closed. He deposed to believing that the staff did not want to serve him because he was South Sudanese, which made him really angry.[10] He gave evidence that he thought it was racist behaviour.
[10] Paragraph 9 of the applicant's witness statement dated 8 December 2021 is referred to.
The Tribunal finds this offending very serious. The employees and the patrons of McDonald’s on that evening when the applicant offended were entitled to go about their business without interference and in safety. Unfortunately, this was not to be the case as a consequence of the applicant’s offending. His behaviour that evening was unacceptable and is reflected of course in the custodial sentence that was imposed upon him by the sentencing Magistrate. His offending was violent. It must weigh heavily against him.
On 3 July 2015, the applicant was convicted of intentionally causing serious injury in the County Court of Victoria. He was sentenced to a term of imprisonment of four years and nine months with a minimum term of three years and three months before he was eligible for parole. He has served the full term. A subsequent appeal to the Court of Appeal was unsuccessful.
It is appropriate to reproduce some of the remarks of the sentencing Judge concerning the applicant’s offending, and in particular the effect that it had upon his victim.
“Briefly, at about 6 PM on 23 April 2012 you attended the Nicholson Street Mall in Footscray with a number of friends. The victim, [redacted], had dinner with two friends and then attended a café in the mall. He left the café at approximately 7:20 PM and attended the Coles supermarket. At 7:28 PM he walked through the mall and had a conversation with to unidentified females. You were nearby with a group of males and females. The two females started walking through the mall and the victim was in close proximity to them. You had a conversation with the victim and he pushed you in a gentle way. You walked behind him and after grabbing him by the shoulder, spun him around and punched him…
You followed the victim and threw punches at him as he tried to walk away. The complainant then swung at you and you proceeded to punch him a number of times to the head. The complainant tried to get away from you. He fell to the ground. You then knelt over the top of him, pinning him to the ground, and punched him at least 10 times to the head. A female close by held the complainant’s legs down. You stood up and kicked him to the head. You were pulled away by an unidentified male and as this occurred, you again kicked the victim to the head. The incident was captured on CCTV footage. You were arrested a short time later and interviewed. You showed no remorse when you were interviewed.
The complainant’s injuries were as follows:
·Extensive bleeding to his face;
·A fracture to the right eye socket;
·A fracture to the right temporal bone (base of the skull);
·Severe swelling to the right eyelid;
·Swelling to the lower and left eyelid;
·Reduced movement to both eyes;
·Tenderness to the right lower ribs;
·Abrasions to both knees.
The victim spent 12 days in hospital and underwent surgery to repair the fractures.
I have read the victim impact statements. 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.
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 these circumstances general deterrence, just punishment and enunciation are all highly relevant sentencing considerations.”
As noted earlier, the applicant sought leave to appeal in the Court of Appeal. Leave was refused. The Court of Appeal considered that given the seriousness of the offending, the sentence was lenient in the circumstances.[11] The Court of Appeal made comments about the seriousness of the applicant’s offending after referring to the passages of the sentencing Judge’s reasons for sentences (which have been reproduced above) as follows:
“None of these findings were challenged. They demonstrate, in our view, that this was a very serious instance of ICSI.[12] The persistence of the attack and the delivery of repeated blows to the head-punching the victim 10 times and kicking him twice-show a determination to cause serious injury which made the applicant’s culpability high indeed. Moreover, as the judge set out, both the immediate and long-term consequences for the victim were very serious indeed.”[13]
[11] These observations of the Court of Appeal are found at page 56 of the Hearing Bundle at paragraph 2.
[12] Intentionally causing serious injury.
[13] These findings are at page 57 of the Hearing Bundle at paragraph 4.
The Court of Appeal also observed:
“Two other features of the case made the sentencing considerations of specific deterrence and community protection of particular importance. The first was that the applicant committed this offence a mere three weeks after he had been released on parole. Not only is that an aggravating factor in its own right but it is a powerful indication that the prior experience of imprisonment has not operated as a sufficient deterrent. As will appear, that conclusion is reinforced by the applicant’s commission of subsequent offences, which the judge also took into account.”
The words of the sentencing Judge and the Court of Appeal speak for themselves as to the very serious nature of the applicant’s offending with respect to intentionally causing serious injury. There is no reason not to accept them in full.
The Tribunal found some aspects of the applicant’s evidence when in the witness box concerning the incident in the Footscray Mall to be unsatisfactory. In particular, the applicant stated that the victim was “the one who hit me first”. This evidence is contrary to the findings of the trial Judge, which were that the victim pushed the applicant in a gentle way. It is also contrary to the contents of the “Summary of Prosecution Opening” which was in evidence before the Tribunal. It should be noted that the applicant, who was represented by counsel before the sentencing Judge, did not challenge the contents of the prosecution summary. His evidence in the witness box in the hearing of this application concerning this aspect of the Footscray Mall incident was given in a manner that sought to, in some way, explain or justify his actions when they were simply unjustifiable. It was a theme that from time to time was a feature of the applicant’s evidence that was unsatisfactory. It once again causes the Tribunal to question whether the applicant has really come to terms with the gravity of his offending, both with respect to this incident and his offending overall.
The applicant’s offending with respect to intentionally causing serious injury was clearly very serious within the meaning of paragraph 8.1.1(a)(i) of Direction 90. The victim suffered shocking injuries which were commented on by the sentencing Judge and the Court of Appeal. The applicant’s behaviour was inexcusable and appalling. That offending must weigh heavily against the applicant.
In May 2018, the applicant was convicted in the Bendigo Magistrates’ Court of “recklessly causing injury”. He was sentenced to a term of imprisonment of six months to be served concurrently. The conviction was for stabbing a cellmate in the prison. There are no reasons for sentence for this conviction available to the Tribunal. The applicant readily admitted that he did stab the victim and stated in evidence to the Tribunal that what had happened was very bad and he could well have killed him. An account of the circumstances surrounding this offending is contained in a Detention and Supervision Order Assessment Report prepared by Anna Hoy, a Senior Psychologist, dated 17 July 2019 (“Detention and Supervision Order Assessment Report”).[14]
[14] The reference to this incident in that report is found at page 425 paragraph 15, of the Hearing Bundle. In addition to evidence from the witness box in which he admitted stabbing his cellmate an account of the stabbing was also provided in paragraph 13 of the applicant's witness statement dated 8 December 2021.
The stabbing in the prison of his cellmate arose from the applicant’s involvement in trafficking and selling drugs and cigarettes in the prison environment. Apparently, the victim had purchased drugs from the applicant but had not paid for them. The applicant became aware that the victim had repaid debts to another prisoner in preference to the applicant. The applicant believed that he was entitled to be paid first. The applicant explained to Ms Hoy that this triggered feelings of disrespect; and to address such feelings he confronted the victim demanding repayment. Unfortunately, the conversation compounded the applicant’s feelings of being disrespected. He perceived the victim to be acting in a superior manner to him. At the conclusion of such conversation the applicant retrieved a weapon from other inmates of the prison. He told Ms Hoy that he initially believed that he could resolve the conflict with conversation. He returned to his cell with the weapon and stabbed the victim. Ms Hoy observed that no remorse or empathy was evident in the applicant’s reflections on his actions. Rather, to her it appeared that they were a logical consequence of the prison politics in which the victim had involved himself. To some extent, the applicant’s evidence before the Tribunal also reflected this approach, although he did express some regret for what he had done to the victim.
The Tribunal considers that the stabbing of the applicant’s cellmate as described was also very serious offending within the meaning of paragraph 8.1.1(1)(a) of Direction 90. It was a crime of extreme violence. It is surprising given the fact that the applicant was also serving a significant sentence of four years and nine months for the intentionally causing serious injury offence that he had previously committed. It is yet a further example of how the imposition of a custodial sentence on the applicant for the prior offending had not operated as a sufficient deterrent to him. It raises concerns as to whether, if the applicant were released into the community, he could be relied upon not to offend in the future. Accordingly, the Tribunal considers that this offending weighs very heavily against the applicant.
The applicant has committed multiple offences against public officers and police officers. Those details have been referred to in the table above. They include ten counts of assaulting a police officer and two counts of assaulting or obstructing a police officer. In the material summonsed from Victoria Police there was an entry in its database concerning an incident that occurred on 6 August 2010.[15] The entry records, amongst other things, that the applicant repeatedly hit a police constable as the constable tried to subdue the applicant and defend himself. As a result of his behaviour the applicant was sprayed with pepper spray foam to subdue him. Notwithstanding the use of the pepper spray, the applicant continued to struggle with the police and struck the officer again when they were endeavouring to place him in a divisional van. Later, whilst in custody, amongst other things, the applicant pushed a female constable in the face. This is conduct that reflects very badly upon him.
[15] The relevant entry in the database can be found at page 761 of the Hearing Bundle.
The applicant, in the witness box, initially said he did not really have a problem with police. He then went on to say that some of them in uniform are not very good and treat people differently. His evidence then shifted to him saying that the police do not always investigate the causes of his offending and that they placed him on an array of charges and just picked on him. By reason of this shift in evidence the Tribunal concludes that the applicant still harbours significant ill-will to certain elements of the police force. By reason of this, it is concerned that there is a distinct and real risk that if he is released into the community the applicant may well be inclined to assault police officers in the future. This is unacceptable behaviour directed towards police officers executing their duties in accordance with the law.
The applicant’s offending against public officers and police officers is conduct that is specifically captured by the definition contained in paragraph 8.1.1(b)(ii) of Direction 90. It is also demonstrative of the applicant having a significant issue with authority in Australia. It does not reflect well on him at all and must weigh heavily against him.
Another feature of the applicant’s offending which should be noted is that he has several convictions for weapons offences. These convictions include possessing an unregistered handgun and assault with a weapon. In the witness box he readily conceded that he carried weapons and stated that there was a time in 2014 and 2015 when he was caught with a handgun. It is of concern to the Tribunal that the applicant was readily prepared to carry a handgun. The applicant’s culpability is amplified by reason of the fact that on his own admission when carrying a handgun, he was frequently affected by alcohol and/or drugs. Together with a handgun, they are a potentially lethal combination.
On the question of the applicant’s possession of weapons it is useful to reproduce a passage from the Detention and Supervision Order Assessment Report, the contents of which speaks for itself:
“Regarding his weaponry use, Mr Chol acknowledged to the assessor, as he has done previously to others, that he was rarely without a weapon in the community. He described routinely arming himself with a 9mm knife, a screwdriver and always carrying a gun in his car. Mr Chol reflected on this being essential to his protection, his perception of the world as dangerous evident in the expressed belief “kill or be killed”.”[16]
[16] Paragraph 29 of the Detention and Supervision Order Assessment Report at page 432 of the Hearing Bundle.
The Tribunal accepts that the applicant made the comments recorded in this paragraph from the report to its author. It is of significant concern.
The sentences imposed upon the applicant have been outlined in the table recording his convictions above.[17] It should be noted that the applicant has had custodial sentences imposed upon him on no less than 11 occasions. It is apparent that the prospect of going to prison has not acted as a deterrent for him engaging in further offending.
[17] Direction 90 paragraph 8.1.1(1)(c).
The applicant’s offending was frequent.[18] He has appeared in court on at least 22 separate occasions. He has been convicted of approximately 73 criminal offences covering a range of criminal conduct. There is also a trend of increasing seriousness. The Footscray Mall incident resulted in significant injuries to the victim. The conviction in the Bendigo Magistrates’ Court for recklessly causing injury was as a result of the applicant using a weapon. This trend of increasing seriousness was also reflected in the prison terms to which the applicant was sentenced. It demonstrates that the sentencing courts viewed with concern such a trend.
[18] Direction 90 paragraph 8.1.1(1)(d).
There was a cumulative effect of the applicant’s offending, particularly with respect to his violent offending, that resulted in several members of the community being physically harmed, threatened and intimidated. Some details of the harm, threats and intimidation have been reproduced in these reasons. The applicant has a significant issue with authority, and in particular the police, in this country. Even in the witness box the applicant was critical of some police and was indifferent to the court process. Indeed, he said in the witness box that when one goes to court “no-one believes you”. He then contended that he would not have a problem with the police in the future. This assertion is very difficult for the Tribunal to accept. Particularly given the evidence before the Tribunal of the applicant’s interactions with police over many years.
Another feature of the cumulative effect of the applicant’s offending that clearly emerged from the material before the Tribunal was the diversion, or perhaps more accurately the application, of police, courts and correctional resources that it caused. The frequency of the applicant’s offending which has been outlined earlier in these reasons has resulted in significant intervention by these agencies. The cost of which is ultimately borne by the taxpayer.
The imposition of custodial sentences did not deter the applicant from continuing to offend. It should also be noted that the applicant continued to offend after being made aware in writing about the consequences of further offending in terms of his migration status. On 22 February 2012, a delegate of the respondent issued the applicant with a Notice of Intention to Consider Cancellation.[19] On 8 March 2012, the applicant responded to that notice.
[19] A copy of the notice is found at page 209 of the Hearing Bundle.
On 30 April 2012, a delegate of the respondent issued a further Notice of Intention to Consider Cancellation on the grounds of past and present criminal and/or general conduct.[20] Once again it did not deter the applicant from further offending. Despite these written warnings he continued to offend.[21]
[20] The notice is at pages 216 of the Hearing Bundle.
[21] Paragraph 8.1.1(1)(g) of Direction 90.
By reason of the foregoing matters, the Tribunal finds that the totality of the applicant’s offending is very serious. Therefore, this consideration weighs very heavily against revocation of the mandatory cancellation of the applicant’s visa.
The risk to the Australian community should the applicant commit further offences or engage in other serious conduct
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).
In undertaking the assessment required of this primary consideration, the Tribunal must identify the nature of the harm should the applicant engage in further criminal conduct.
Should the applicant engage in further violent offending or serious conduct, the harm to individuals or the Australian community could be serious injury or even death to potential victims. This is particularly so given the applicant’s propensity to carry and on occasions resort to the use of weapons. Frequently he has carried weapons when under the influence of alcohol and/or drugs. This has the potential to be a lethal combination.
Another type of harm that may arise from the applicant’s violent offending is that of psychological harm leading, as it has from the applicant’s previous offending,[22] to a variety of mental illnesses, such as post-traumatic stress disorder. These mental illnesses can lead to all sorts of outcomes including, as with the case of the victim of the Footscray Mall incident, the requirement to undergo regular treatment and depriving the victim of the ability to participate in the community in the way they did before the offending occurred against them.
[22] Page 425 of the Hearing Bundle.
Were the applicant to commit further offences against victims’ property, such as theft and robbery, the harm to individuals in the community would include loss of personal property and financial loss.
The applicant concedes that if he were to offend in the ways he has done previously or engage in other serious conduct, it would pose a risk to members of the Australian community.
However, the applicant contends that the actual risk posed by him to members of the Australian community must be assessed in the light of what he says are the successful rehabilitation programs he has undertaken, which he asserts have addressed his propensity for offending.
The applicant acknowledges that he suffers from post-traumatic stress disorder (“PTSD”) with symptoms of depression and anxiety. He states that when he was younger, he did not seek help for such symptoms and instead self-medicated with alcohol and drugs. He points to steps he has taken since being in prison and detention to address these issues. He says that he saw a psychologist every two weeks for approximately three years and was also prescribed antidepressants. He has stated that he has stopped seeing a psychologist and taking antidepressants because he now feels he is in a good place mentally. If he is released into the community, he has undertaken to see a psychologist again, as he believes that such assistance will be important in helping him adjust to life outside of detention.
It is of concern to the Tribunal that the applicant has stopped seeing a psychologist and taking antidepressants of his own volition, without the advice of a medical practitioner; particularly advice from a mental health professional, preferably a psychiatrist. This attitude on the part of the applicant suggests that if he is released into the community he may not always follow treatment recommended by healthcare professionals. Should he fail to do so, it must heighten the risk of him relapsing into alcohol consumption and drugtaking, together with the increased likelihood of him reoffending. As was observed in the Detention and Supervision Order Assessment Report, much of the applicant’s violent and general offending appeared to be linked to his substance abuse.[23] In the witness box the applicant readily admitted that when he was under the influence of drugs it was very hard for him to exercise self-control, particularly when someone might tell him things he did not like. The report prepared by Ms Hoy also identified use of excessive amounts of alcohol by the applicant as a risk increasing factor.
[23] Paragraph 55 of that report is referred to.
Additionally, he has acknowledged the role alcohol and drug abuse has played in his offending. He raises a significant factor being the participation in a methadone program which he says has assisted in overcoming his heroin addiction. He has expressed a determination to abstain from taking drugs if he is released into the community.
Another factor that he points to, in support of his contention that he has addressed behavioural issues that previously led to his incarceration, is his attendance on a number of courses whilst in custody. He contends that such courses have changed the way he thinks about himself and the way he acts. These courses have included the following:
(a)High Intensity Violence Intervention Program, from 19 June 2017 to 17 November 2017;
(b)Coping Inside-Managing Loss program in November 2017;
(c)Coping Inside-Managing Sleep Program in August 2017;
(d)Talking Change Program from 2-16 June 2017;
(e)Coping Inside-Managing Worry Program in April 2017;
(f)Four units in 2017 towards a Certificate II in Cleaning Operations;
(g)Interpersonal Relationships Program on 27 September 2018;
(h)Three units in 2018 towards a Certificate I in Access to Vocational Pathways; and
(i)40-hour Intensive Substance Use Program in March 2019.
The applicant gave evidence that undertaking these courses had taught him how to manage his emotions and deal with conflict situations. In the witness box he gave detailed evidence as to how the High Intensity Violence Intervention Program was conducted. He contends that he understands now if he is confronted with a conflict the best thing to do is to simply walk away. It was reiterated by the applicant that he believed he had changed as a result of undertaking counselling and psychology sessions as well as the courses referred to above. His perspective on violence is said to have changed.
The Tribunal acknowledges that the applicant has undertaken the courses described. However, the last course he undertook was over three years ago and it was not explained why he has not continued to take further courses during the intervening period that he has been in custody and immigration detention. The Tribunal has observed previously in these reasons that it has concerns about the applicant’s lack of complete insight with respect to his offending. This was evident by his reference to the victim of the Footscray Mall incident hitting him first and the anti-authority statements that he made from the witness box. These observations do raise the question, or perhaps more accurately support a finding, that he has unmet rehabilitation needs. Whilst the applicant expressed a belief that his attitude towards violence has changed as a result of taking those courses and reflecting on their content, and that he would walk away from a conflict situation, the Tribunal has very strong reservations as to whether this would occur, or could be maintained, were the applicant to be released into the community.
There are several reasons for this. Almost certainly, any such change requires the applicant’s continued abstinence from alcohol and drugs. Whilst in custody or immigration detention the applicant has continued, on some occasions, to use and distribute drugs.[24] Also, there must be the concern that in the regulated environment of prison and immigration detention access to drugs is more difficult than in the community. If the applicant is released into the community his resolve to remain abstinent will be severely tested. Although not specifically raised at the hearing, the Tribunal acknowledges that drugs are readily available in prison and immigration detention. This was indeed evident by the applicant’s supply of those drugs whilst he was in custody. This could suggest that his abstinence from substances has been tested certainly whilst in prison. The Tribunal considers that notwithstanding the potential availability of drugs in custodial environments, they are by their very nature regulated and supervised whereas the availability of drugs and hallucinogenic substances in the community is much more prevalent and easily obtainable.
[24] See page 197 of the Hearing Bundle. There is also the background to the incident where the applicant stabbed his cellmate in prison which apparently arose from the applicant's activities in trafficking in tobacco and/or drugs in the prison environment.
The applicant also expressed a desire to return to Perth and draw upon the support of his extended family. In this setting he expressed a desire to be drug and alcohol free. In particular, there was the evidence of his aunty, Ms Momywath, who gave evidence at the hearing. She confirmed that were the applicant to return to Perth he would be able to live with her and her family. Ms Momywath considered that the applicant is no longer a risk to the community. She put this down to the fact that he is older and more mature and has had the opportunity to reflect upon his offending. Additionally, she stated that her family were prepared to provide for the applicant if necessary.
Another motivating factor relied upon by the applicant to contend that he is unlikely to reoffend was the expressed goal of reuniting with his children. He also relies on the support of his family, several of whom gave evidence at the hearing of this application. The Tribunal acknowledges that while these two protective factors, namely the goal of reuniting with his children and ongoing family support, weigh in his favour, they have been ever present in the past and did not on those occasions act as a deterrent on his offending. The Tribunal is not at all satisfied that they will be meaningful protective factors in the future if they have not worked in the past.
As for the likelihood of the applicant engaging in further criminal or other serious conduct, it is appropriate to observe, once again, that before the Tribunal was a Detention and Supervision Order Assessment Report. It is a lengthy and detailed report. It does include a substantial risk assessment about the risks of future violent offending amongst other things. The contents of this report are referred to in their entirety.
In the penultimate paragraph of her report, Ms Hoy observed as follows:
“In taking into account Mr Chol’s history, the static and dynamic risk factors identified and the relevant protective factors, it is considered that should he be released into the community and not subject to a detention or supervision order, Mr Chol’s risk of committing a further serious violence offence (as per Schedule 2 of the Serious Offenders Act 2018) is high. Should this risk materialise, future offences may involve causing serious injury recklessly or intentionally and are considered to potentially lead to the death of the victim, particularly if Mr Chol is carrying a weapon. Victims are likely to be male, and either unknown to Mr Chol or an acquaintance.”[25]
[25] This passage is also apposite to the nature of harm that would be caused to individuals or the Australian community should the applicant engage in further criminal or other serious conduct.
Ms Hoy also opined that the applicant’s long-standing violent attitudes and belief system are deeply entrenched. As such, the applicant’s violent attitudes continue to express themselves relatively automatically and represented definite evidence of recent problems with violent ideation; and were considered by her to be of high relevance for future violence. She expressed the opinion that the applicant has continued to demonstrate a propensity for aggression including the use of weapons.
Ms Hoy also expressed the opinion that the most plausible progress to future violent offending behaviour by the applicant would likely involve an adult male victim against whom he felt prompted to use violence, following an actual or perceived threat of harm or actual harm to a family member, friend or himself. Ms Hoy also said that core beliefs relating to the applicant’s masculine duty to protect others, a sense of machismo and his justification of violence are likely to be triggered and become prevailing and overwhelming, particularly if the applicant was intoxicated at the time. With respect to intoxication, she said it is most likely that such a state would be predisposed by the applicant’s relapse and increasing use of substances such as ice, heroin, cannabis and/or alcohol. However, she also noted that such violence may occur in any event in the absence of being substance affected.
Ms Hoy also expressed the opinion that the applicant had demonstrated a fledgling and unsophisticated level of insight into his mental health, violence risk and the need for treatment.
These findings by Ms Hoy all point to a high risk of further violent offending by the applicant. The Tribunal sees no reason not to accept the contents of the report and the opinions expressed in it.
These findings were put to the applicant in the witness box. The applicant’s response was “Whatever she says is not right”. In the submissions on behalf of the applicant it was contended that the contents of the report should not be accepted, or no weight ought to be placed on the report, because the author of the document was not called to give evidence and could not be tested. As noted above, the Tribunal accepts Ms Hoy’s account of any facts that were given to her by the applicant when she consulted him prior to its preparation. The author, it should be recalled, is a senior and experienced psychologist. It should also be noted that in addition to exercising her clinical judgement, which was evident from her years of experience, Ms Hoy also assessed the applicant using several actuarial instruments including Static-99R and HCR 20. Such application of those actuarial instruments it seems to the Tribunal lends further credibility to the author’s findings. Whilst the applicant has not had the opportunity to test the author in the witness box, the contents of the report speak for itself; and there is a very rational basis for reaching the conclusion that she does, as to the applicant’s risk of reoffending. There was detailed reasoning provided. It should also be noted that the applicant did not, in his evidence nor in submissions, identify how the report was “not right” as he contended.
Another concern the Tribunal has about the likelihood of the applicant engaging in further criminal or other serious conduct arises from some remarks made by the sentencing Judge in the conviction for intentionally causing serious injury in 2015. He regarded the applicant as a poor prospect for rehabilitation. He did so because past attempts to support the applicant on community corrections orders and on parole had been unsuccessful. Furthermore, he had before him a report from a consultant psychiatrist, Dr Glowinski, who stated that there was little to suggest that the applicant had developed the capacity to change his pattern of behaviour.
These remarks by the sentencing Judge point to a high risk of the applicant reoffending were he to be released back into the community.
On 25 October 2019, in the County Court of Victoria, in reliance on the Detention and Supervision Order Assessment Report, an Interim Supervision Order was made against the applicant. A Judge of the court was satisfied that the making of the Interim Supervision Order was justified and it was in the public interest to do so.[26] The order was expressed to commence either on 1 November 2019 or on the day that the applicant was released for any reason from immigration detention, provided that release was in Australia. The order contains a variety of conditions, including that the applicant reside at a specified address in Dandenong North, that he is subject to a curfew between 11pm and 6am, and that he must not consume alcohol or use or possess prohibited drugs. A further condition is that the applicant is subject to a 24-hour per day electronic monitoring regime. He is required to wear an electronic monitoring device at all times.
[26] The Interim Supervision Order is at page 510 of the Hearing Bundle.
If there was not a high risk of the applicant reoffending it seems unlikely that a judge of the County Court of Victoria would have made a supervision order as he did. Further, he would not have made a supervision order with such extensive and strict terms as he did. The Tribunal acknowledges that it could be contended that the very strict terms of the Supervision Order imposed on 25 October 2019 may well reduce the risk of the applicant reoffending. However, the Tribunal does not find such a contention particularly attractive, given the applicant’s previous history of reoffending after terms of imprisonment and corrections orders have been imposed. It should be recalled that he had been placed on a Community Corrections Order previously, yet he proceeded to reoffend quite seriously. Similarly, he has reoffended after custodial sentences have been imposed, including his most recent conviction. Observations have been made previously about his general lack of respect for authority in any event.
Overall, after considering the material before it, the Tribunal considers that the risk of the applicant reoffending is high. As noted earlier, the applicant has not undertaken any self-improvement or guidance courses for over three years. He has discontinued seeing a psychologist and taking medication of his own volition. His abstinence from alcohol and drugs has not been tested outside the regulated environment of prison and immigration detention. Previous experience of the applicant in the wider community has demonstrated that he has a high level of alcohol and drug dependency. The risk of the applicant yielding to temptation or submitting to pressure to relapse will be very high indeed.
The Tribunal is also persuaded by the sentencing remarks of the trial Judge that the applicant is a poor prospect for rehabilitation. It is also persuaded by the remarks of Dr Glowinski, referred to by the trial Judge, and also the contents of the extensive Detention and Supervision Order Assessment Report which have been referred to previously. That report concluded there was a higher risk of reoffending. The applicant was unable in his evidence to persuade the Tribunal that these expert professional opinions were wrong; or that he really had changed to such a degree that those opinions were no longer applicable. The applicant’s evidence in the witness box concerning his attitude and his attempts at rehabilitation was, in the Tribunal’s view, overly general and unpersuasive.
By reason of the foregoing, the Tribunal considers that there is a high risk of the applicant reoffending if he were to be released into the community. Accordingly, when coupled with this significant harm that could be caused by a repeat of his offending, this primary consideration weighs very heavily against revoking the mandatory cancellation of the applicant’s visa.
Primary consideration 2: family violence
Under paragraph 8.2(2) of Direction 90, this consideration is relevant in circumstances where a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence.
The applicant was the subject of a Protection Order made in the Queensland Magistrates’ Court on 11 March 2009.[27] The Protection Order states that the court was satisfied that the applicant had committed an act of domestic violence against the aggrieved party who was a former domestic partner. Additionally, the court was also satisfied that the applicant was likely to commit an act of domestic violence again, or was likely to carry out a threat to commit an act of domestic violence. It provides that the applicant must be of good behaviour towards the aggrieved and must not commit domestic violence. He was prohibited from going near or having contact with the aggrieved person at any time. However, the applicant was not convicted of any offence, found guilty of any offence or had any charges proven, howsoever described, within the meaning of paragraph 8.2(2) of Direction 90. Indeed, the police notes that were in evidence before the Tribunal record that it was decided by them not to take any further action as there was no clear information provided to confirm what had actually occurred. The police nonetheless made an application to the Magistrates Court for a Protection Order.
[27] The Protection Order is at pages 597 of the Hearing Bundle.
Paragraph 8.2(2)(b) of Direction 90 provides that this consideration is also relevant in circumstances where there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in perpetration of family violence, and the non-citizen being considered under s 501 or s 501CA has been afforded procedural fairness. Whilst a Protection Order granted in the Queensland Magistrates’ Court stating that the Court is satisfied that the respondent has committed an act of domestic violence is, in the view of the Tribunal, evidence from an independent and authoritative source, the matter was not really explored in evidence before the Tribunal, particularly when the applicant was in the witness box. Therefore, the Tribunal considers that to take this consideration into account would be to deny him procedural fairness within the meaning of the language used in the paragraph.
The Tribunal should emphasise that with respect to this aspect of this primary consideration because there was no evidence of the acts, facts and circumstances of the applicant’s conduct found by the Magistrates’ Court which it relied on to make the Protection Order, it is really impossible for the Tribunal to make a finding as to what the applicant actually did that amounted to family violence within the meaning of the language used in this consideration. It was not specifically put to the applicant when he was in the witness box what he was alleged to have done that amounted to family violence. Therefore, it is appropriate in the circumstances to put no weight on this primary consideration.
Further, by reason of the fact that there is no evidence of the applicant having been convicted of an offence, found guilty of an offence, or had charges proven howsoever described that involve family violence, and that the terms of the Protection Order granted in the Magistrates’ Court of Queensland were not really explored whilst he was in the witness box, the Tribunal will place no weight on this primary consideration.
Primary consideration 3: the best interests of minor children in Australia
Under paragraph 8.3(1) of Direction 90, decision-makers must make a determination about whether cancellation or refusal under s 501, or non-revocation under s 501CA, is or is not in the best interests of a child affected by the decision.
The applicant has five children:
(a)KC born in 2006 to Monica John, who resides with his mother in Perth;
(b)AC born 2009, and VC born 2012 to Adut (who reside with their grandmother in Melbourne);
(c)BC born 2013 to Samantha (who resides with his grandmother); and
(d)An unknown child born to Jenny (who was approximately nine years old).
The eldest child resides in Perth. AC, VC and BC reside in Melbourne.
The applicant contends that he has close, ongoing relationships with his four eldest children. He says he is able to do this by speaking to them by video applications such as Zoom. The applicant gave evidence that he has a particularly close relationship with his eldest son and BC. KC lived with the applicant and his partner Samantha for approximately two years from 2012 in Melbourne. It is his intention if released into the community for Samantha and BC to reside with him in Perth and if possible, also to have KC join them. It is not known what KC’s mother’s attitude is towards this proposal.
With respect to AC and VC, the applicant submits that he also has a close ongoing relationship with them. However, if he is released into the community it is not his intention to have them reside with him in Perth.
It is submitted by the applicant that it is in the interests of each of his children for them to have an ongoing relationship with him. If there is not a revocation of the decision to cancel his visa, the impact on the children would be significant. It would deprive them of the opportunity to have an ongoing and substantive relationship with their father.
Paragraph 8.3(4)(a) of Direction 90 prescribes that less weight generally should be given to this consideration where there have been long periods of absence or limited meaningful contact between the applicant and the child concerned. The applicant has been in prison or immigration detention for almost eight years. This is a significant portion of each of the children’s lives. Prior to him being taken into custody, the applicant moved around the country and had extended periods of absence from his children. This included previous periods in custody. There has been limited meaningful contact between the applicant and his children for some time. The Tribunal acknowledges that the applicant has in recent times, particularly since he has been in immigration detention, done his best to maintain contact with his children and does so through electronic means.
The extent to which the applicant is likely to play a positive parental role in the future remains to be seen. The eldest child is approximately 16 so there is a limited length of time before he turns 18 for the applicant to play a positive parental role. It is fair to say with respect to all of his children he has not really fulfilled much of a positive parental role to date. The youngest child is nine and of course there are many years ahead of her before she reaches the age of 18 where it would be open to the applicant to make a contribution by way of a positive parental role to her life. Realistically, if the applicant is to play a positive parental role with any of his children before they turn 18 it will be necessary for him to abstain from alcohol and drugs, and refrain from further offending. Given the Tribunal’s findings made previously in these reasons, that it considers the applicant a high risk of relapse and reoffending, it remains doubtful whether the applicant could meaningfully play a positive role in this regard. Otherwise, there would be the distinct and real possibility, depending on the nature and gravity of his prospective offending, that he would be in custody again for an indeterminate period. Were he to return to custody his ability to maintain his relationship with his children and play a positive parental role with them would be negligible.
The applicant’s prior conduct has led to frequent absences from the children’s lives. Such absences must have had a negative impact on the children. It has also obviously made it difficult for the mothers of the children to raise them without the assistance of their father. That is a further impact upon the children. There was one occasion from the material in evidence before the Tribunal in March 2013, when one of his children (a four-year-old son) was present whilst the applicant committed an assault on the security guard. This incident would almost certainly have had a negative impact on the child concerned.
The likely effect of the applicant’s separation from his children would be significant. Were he to return to Sudan it is unlikely that the applicant would have an ability to maintain contact in other ways, as he has done in recent times, by means of video applications such as Zoom.
As noted earlier, KC resides with his mother, AC and VC reside with their grandmother and BC resides with his mother. They clearly fulfil a parental role with each of these children. Save as aforesaid, there was no evidence before the Tribunal as to whether there were other persons who already fulfil a parental role in relation to each of the applicant’s children.
There was no evidence of any known views of the children. Similarly, there was no evidence from any of the children’s mothers which may have shed some light on the children’s views, or for that matter their own views on any of the applicant’s proposals concerning the children.
By reason of the foregoing matters, the Tribunal considers that the best interests of the minor children of the applicant referred to weigh in favour, to a limited extent, of the revocation of the mandatory cancellation of the applicant’s Visa.
Primary consideration 4 - the expectations of the Australian community.
Paragraph 8.4 “Expectations of the Australian Community” provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
…
(a) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, “serious crimes” include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(b) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties;
Both parties referred to the majority decision in FYBR v Minister for Home Affairs[28]. Although it related to a previous Direction 65, the applicable consideration of Direction 90 is expressed in similar terms. The majority held that this consideration should be understood as expressing a deemed community expectation. This ascribes to the community an expectation aligning with that of the executive government which would generally weigh in favour of non-revocation. It is not, however, necessarily an inflexible conclusion.
[28] [2019] FCAFC 185.
Paragraph 8.4(3) of Direction 90 provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.4(4) of Direction 90 provides that this consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
The applicant contends, and the Tribunal agrees, that it is for the Tribunal to determine how much weight to place on this consideration. The weight to be attached to such consideration is affected by the circumstances of the case, including the seriousness of the offending or other conduct.
There are several reasons why the expectations of the Australian community weigh heavily against the applicant. For the reasons articulated above, the applicant has engaged in serious offending and conduct in breach of this expectation. There has been serious offending over many years. The applicant arrived in Australia when he was 14 years old in November 2003 and committed his first offence within four years of his arrival. The applicant has committed crimes of violence including violence against police officers in the performance of their duties. He has been convicted of weapons offences including carrying an unregistered handgun. He has been jailed on several occasions. The Tribunal has found that there is a high risk of the applicant reoffending. The applicant’s offending, which has been frequent, has shown a chronic disobedience to the laws of Australia.
In these circumstances the applicant has breached the trust of the Australian community and it would expect a person with his extensive criminal history not to be permitted to continue to hold a visa or remain in Australia. Accordingly, this consideration weighs heavily in favour of non-revocation of the mandatory cancellation of the applicant’s visa.
Other considerations
International Non-refoulement obligations
Paragraph 9.1(1) of Direction 90 states that 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. It also states that 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”).
Paragraph 9.1(2) of Direction 90 specifies that in making a decision under s 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the noncitizen’s criminal offending or other serious conduct. In doing so, decision-makers should be mindful that unlawful non-citizens are, in accordance with s 198, liable to removal from Australia as soon reasonably practicable, and in the meantime, detention under s 189; noting also that s 197C provides that for the purposes of s 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
Paragraph 9.1(3) of Direction 90 states, however, that that does not mean the existence of a non-refoulement obligation precludes non-revocation of the mandatory cancellation of a non-citizen’s visa. This is because such a decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. Following the visa refusal, cancellation decision or non-revocation decision, if the non-citizen applies for a protection visa, the non-citizen would not be liable to be removed while their valid visa application is being determined. It should also be observed that under s 197C(3), if protection findings are made, the Act neither requires nor authorises the person’s removal to the relevant country.
The respondent urged the Tribunal to apply the decision of the High Court of Australia in Plaintiff M1/2021 v Minister for Home Affairs[29] and defer consideration of the applicant’s non-refoulement claims because he is a person able to make a valid application for a protection visa. The High Court observed in that case as follows:
“Decision-maker’s approach to non—refoulement
[28] Where the representations do not include, or the circumstances do not suggest, a non-refoulement claim, there is nothing in the text of s 501CA, or its subject matter, scope and purpose, that requires the Minister to take account of any non-refoulement obligations when deciding whether to revoke the cancellation of any Visa that is not a protection Visa.
[29] Where the representations do include, or the circumstances do suggest, a non-refoulement claim by reference to unenacted international non-refoulement obligations, that claim may be considered by the decision-maker under s 501CA(4). But those obligations cannot be, and are not, mandatory relevant considerations under s 501CA(4) attracting judicial review for jurisdictional error-they are not part of Australia’s domestic law.
[30] Where the representations do include, or the circumstances do suggest, a claim of non-refoulement under domestic law, again the claim may be considered by the decision-maker under s 501CA(4), but one available outcome for the decision-maker is to defer assessment of whether the former Visa holder is owed those non-refoulement obligations on the basis that it is open to the former Visa holder to apply for a protection Visa.”
[29] [2022] HCA 17.
It should be emphasised that in expedited hearing processes such as this one, the Tribunal cannot make an assessment of protection obligations in the way that would occur were the applicant to make an application for a protection visa.[30] Nor is the Tribunal required to conduct an extensive assessment of the applicant’s claims to fear harm should he return to South Sudan.
[30] Reference should be made at this juncture to the provisions of paragraph 9.1(6) of Direction 90 which provides as follows:
“It may not be possible at the s 501/501CA 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 Tribunal considers that it should not defer a consideration of the applicant’s protection claims. It does not do so because, amongst other things, such a decision to defer consideration could potentially lead to the applicant spending a longer time in detention whilst a protection visa application, for instance, is being considered. However, insofar as international non-refoulement claims are made, they should be identified, understood and evaluated as best as is open to the Tribunal on the material that has been tendered.
The applicant approaches this consideration in several ways. He contends that non-refoulement obligations are owed to him for several reasons:
(a)His imputed political opinion on account of:
(i)His perceived opposition to armed groups due to his Dinka ethnicity, and/or
(ii)His father’s involvement in the war as a rebel soldier.
(b)His race, being of Dinka ethnicity.
(c)His membership of the following particular social groups:
(i)Young men at risk of forcible recruitment by armed groups;
(ii)Persons perceived to be wealthy in South Sudan;
(iii)Persons perceived to be foreign;
(iv)Returnees from Western countries.
The applicant contends that he has a well-founded fear of persecution were he to return to South Sudan based on the political opinion imputed to him on account of his Dinka ethnicity and his father’s involvement in the war as a soldier.[31]
[31] Paragraphs 92 to 98 of the Applicant’s Statement of Facts, Issues and Contentions are referred to.
The respondent resists these assertions on the part of the applicant by contending that the applicant’s non-refoulement claims are expressed at a very high level of generality and lack specific details sufficient to enable the Tribunal to make a finding that such obligations are owed. With respect to his father’s prior history, once again, the respondent contends that there is simply insufficient evidence before the Tribunal to enable it to be satisfied that the applicant’s father and family were killed by forces associated with the current Sudanese regime.
There was much printed material from various agencies before the Tribunal on this topic. It was not altogether consistent in the views that were expressed. For instance, the Department of Foreign Affairs and Trade “DFAT Country Information Report South Sudan” recorded that conditions for returnees differ depending on the individual’s ethnic or sub- ethnic linkages and whether the individual has or has been perceived to question the authority of the government. It concluded that given the supremacy of the Dinka ethnic group in Juba, Dinkas would likely be able to return to Juba without facing discrimination or violence.
Several reports from the UNHCR that painted a different picture were in evidence. The UNHCR Position on Returns to South Sudan-Update III, October 2021 concluded that the country continues to suffer from long-term political, inter-ethnic and communal conflict and a weak rule of law. It reaffirmed its call on states to refrain from forcibly returning South Sudanese nationals or habitual residents of South Sudan to any part of the country. The UNHCR Position on Returns to South Sudan-Update II concluded that sustainable conditions are not in place for the safe and dignified return of refugees. It catalogued instances of killing or wounding civilians, abduction, sexual violence, arbitrary arrest and prolonged detention together with recruitment by armed groups or forces, forced displacement, looting and the destruction of civilian property and extortion. Once again, it reiterated that the security, rule of law and human rights situation that prevails today in South Sudan also stands in the way of a safe and dignified return for any person originating from South Sudan, whether or not the individual is found to be in need of international protection. It repeated the recommendation that states suspend forcible returns of nationals to that country.[32]
[32] The applicant in his Statement of Facts, Issues and Contentions dated 10 December 2021 referred to several other sources and articles concerning the targeting of civilians based on ethnicity and imputed political affiliations. They have been considered by the Tribunal.
The Tribunal concludes that there is unlikely to be imputed to the applicant a political opinion on account of his father’s involvement in the war as a rebel soldier. The applicant left Sudan as a 12-year-old in 2003. It seems unlikely that upon his return hostile forces would know the background of the applicant’s father or would be making enquiries about it. There is, in the view of this Tribunal, insufficient evidence to justify concluding that the applicant would be targeted because his father was a rebel soldier.
Based on the material before it the Tribunal considers there is a risk, albeit a limited risk, of the applicant facing death, violence, torture or arbitrary detention based upon his Dinka ethnicity. Whilst it is less likely to occur should he reside in Juba because it is a Dinka dominated part of South Sudan, it is nonetheless a distinct and real possibility. In such a case a non-refoulement obligation is owed to him.
The applicant also contends that a non-refoulement obligation arises in his favour because he will be targeted as a returnee or perceived to be wealthy and/or foreign. He relies upon a DFAT travel warning which certainly advises against travel to South Sudan. It does so because the security environment is volatile. There is a serious risk of attacks on civilians and, as noted earlier, there is a general lack of law and order across the country. The applicant also highlights the fact that there is no protection to be had from police or state authorities.
The respondent contends that the applicant is unlikely to attract attention on the basis of perceived wealth as a recent arrival from a foreign country in circumstances where he is ethnically Dinka, spent his childhood in South Sudan and where it will be apparent that he is not wealthy.
The applicant in his Statement of Facts, Issues and Contentions referred to several authoritative publications in support of his assertions. They need not be reproduced in full for the purposes of these reasons.[33] However, it is worthwhile noting that the most recent DFAT Country Information Report of 2016[34] made the following observations concerning these matters:
“While the Government now has almost unfettered control over Juba, the relative stability within Juba is extremely fragile. Criminality is rampant and exacerbated by the severe levels of poverty in Juba (and South Sudan more broadly). Particular ethnic groups continue to face a higher risk in Juba (see “Race/Nationality”). Foreigners, non-government organisations (NGO’s) and the UN have also reported that the increasing number of incidents targeted at them is limiting their ability to provide assistance within South Sudan (see “Civil Society Organisations”).”
[33] Paragraphs 101 to 107 of that document are referred to.
[34] Paragraph 2.31.
Given the general state of lawlessness in South Sudan that is highlighted in much of the material that was before the Tribunal, it is considered that a non-refoulement obligation is owed because of the fact that the applicant is a returnee from an affluent nation and there will be the risk of a perception that he is wealthy. Whilst the risk is not in the Tribunal’s view a high one, it is nonetheless distinct and real and for that reason the obligation arises.
The applicant also contends that he is at significant risk of forced recruitment to militia groups because he is a young Dinka male.[35] The practice of forced recruitment was highlighted in several of the reports that were in evidence before the Tribunal.[36] Once again, it is a risk that the applicant would face were he to return to South Sudan. It is difficult for the Tribunal in a setting such as this to be able to estimate the likelihood of such a risk. If he were to live in Juba, the likelihood of him being subject to forced recruitment would be fairly minimal.[37] However, it cannot be completely eliminated. Were he to reside elsewhere it would be a much higher risk. Given that the Tribunal is satisfied that the risk exists, it also finds that a non-refoulement obligation arises in favour of the applicant.
[35] Paragraphs 104 to 107 of the Applicant's Statement of Facts, Issues and Contentions are referred to.
[36] See for instance UN Human Rights Council, Report of the Commission on Human Rights in South Sudan, 4 February 2021. The reference to the UNHCR Position on Returns to South Sudan-Update II which was cited above is referred to and repeated.
[37] In paragraph 3.7 of the DFAT Country Information Report South Sudan it states:
“In Juba, Dinkas face a low risk of being targeted on the basis of their ethnicity because the Dinka-dominated Government currently has almost unencumbered control over Juba”.
The applicant also contends that non-refoulement obligations are owed to him due to the real risk of irreparable harm including torture, cruel, inhuman or degrading treatment were he to be returned to South Sudan.[38] He relies upon the evidence of ongoing violence, insecurity and instability some of which has already been touched on earlier in these reasons. Several authoritative publications were tendered in evidence before the Tribunal in support of this contention.[39] For instance, the US Department of State, 2020 Country Reports on Human Rights Practices-South Sudan recorded:
“The United Nations, international cease-fire monitors, human rights organisations, and media reported the government, or its agents, committed numerous arbitrary or unlawful killings. Security forces, opposition forces, armed militias affiliated with the government and the opposition, and ethnically based groups were also responsible for widespread extrajudicial killings. The term “unknown gunmen” was often used to describe death squads affiliated with the National Security Service (NSS) or other security services. The security services investigated alleged abuses by members of their respective forces.”
[38] Paragraphs 108 to 119 of the Applicant’s Statement of Facts, Issues and Contentions are referred to.
[39] See Minority Rights Group International, People Under Threat 2020, UNHCR Position on Returns to South Sudan-Update III, US Department of State, 2020 Country Reports on Human Rights Practices-South Sudan, UN Human Rights Council, Report of the Commission on Human Rights in South Sudan (4 February 2021.)
As can be seen from a consideration of this passage, the risk of harm including irreparable harm to the applicant from these sources cannot be discounted. There is clearly a pattern of ongoing violence, instability and insecurity in South Sudan, to which the applicant might be exposed where he to return.
The Tribunal is satisfied that there is a risk to the applicant in this sense. Once again, it is difficult to assess the level of such risk. Were he to live in Juba the risk would most likely be relatively low. However, it cannot be eliminated. Whilst that risk exists the Tribunal considers that it does give rise to a non-refoulement obligation.
By reason of the foregoing independent and authoritative information identifying a real risk to his safety were he to be returned to South Sudan, the Tribunal concludes that this other consideration must weigh heavily in favour of revoking the mandatory cancellation of the applicant’s visa.
Extent of impediments if removed
Paragraph 9.2 of Direction 90 provides:
“Decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a) the noncitizen’s age and health;
(b) whether there are substantial language or cultural barriers; and
(c) any social, medical and/or economic support available to them in that country.
The applicant is presently 33 years of age and in good physical health.
The applicant speaks Dinka. He did not identify any other substantial cultural barriers in the relevant sense.
He did point out that he has no family left in South Sudan and no one he could go to for support. He contends he would not have any connections there to help him find a job and would have nowhere to live.
However, he does have several mental health problems that have been identified in the material before the Tribunal. He has been previously diagnosed with PTSD with symptoms of depression and anxiety. As noted earlier in these reasons, the applicant has, whilst in custody, availed himself of the opportunity to seek professional help for these mental health problems. He has also been prescribed antidepressants from time to time. These treatment options are unlikely to be available to the applicant in South Sudan. He is unlikely to be able to gain access to any of the mental health supports in the way that he has been able to in Australia and which, there seems little doubt, he requires.
Another matter that has been raised by the applicant is that he has been undergoing a methadone treatment program for his heroin addiction. This treatment option is unlikely to be available for him in South Sudan.
The applicant points to the fact that access to any form of medical treatment is remote in South Sudan. He highlights a statistic contained in the UNHCR Position on Returns to South Sudan-Update III which is that access to health care is limited with one physician for every 65,574 people.
The applicant contends that if he is returned to South Sudan, he will return to a nation afflicted by widespread conflict, violence and instability. He will therefore be isolated from his family and will experience significant hardship. He will likely have limited prospects of employment and social connections. He will face poverty and hardship and probably struggle to subsist. Whilst he will no doubt face challenges were he to return to South Sudan, many of those challenges that he will face will be similar to those of other citizens of that country. However, having not lived in South Sudan for many years, the Tribunal acknowledges that he will face additional challenges were he to return there.
The respondent contends, and the Tribunal agrees, that the applicant would not have access to comparable social, practical, medical and financial opportunities as he would have in Australia. It is accepted that the applicant would suffer hardship and this other consideration weighs in his favour. The Tribunal agrees. However, the Tribunal considers that only moderate weight can be placed on this other consideration. The Tribunal arrives at this conclusion to attach only moderate weight to this consideration because this paragraph of Direction 90 on its true and proper construction only requires consideration of impediments that the applicant will face in the context of what is generally available to other citizens of that country, namely South Sudan. Therefore, no comparison is required with opportunities in Australia. The principal ground for attaching moderate weight to this other consideration arises because of the applicant’s particular mental health conditions.
Impact on victims
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.
Links to the Australian community
The strength, nature, and duration of ties to Australia
Paragraph 9.4.1 of Direction 90 states as follows:
(1)Decision-makers must consider any impact of the decision on the noncitizen’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 noncitizen’s Visa or whether to revoke the mandatory cancellation of the Visa, the decision-maker must also consider the strengths, nature and duration of any other ties that the noncitizen as to the Australian community. In doing so, decision-makers must have regard to:
(a)how long the noncitizen has resided in Australia, including whether the noncitizen arrived as a young child, noting that:
(i) less weight should be given where the noncitizen began offending soon after arriving in Australia; and
(ii) more weight should be given to the time the noncitizen 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.
The applicant has resided in Australia since 2003 when he was 14 years old. He commenced offending at the age of 17 years in 2007. As he commenced offending relatively soon after his arrival in Australia, the Tribunal concludes that less weight should be given to this consideration as prescribed by paragraph 9.4.1(2)(a)(i). of Direction 90.
He has a significant number of family members resident in Australia, as follows:
(a)5 minor children;
(b)one aunt, three nieces and four nephews;
(c)one uncle;
(d)at least 10 cousins.
He appears to have had a close relationship in the past with Samantha, the mother of his child BC.
The applicant also appears to have a close relationship with his aunty and his cousins, with whom he has frequent contact.[40] It should be remembered that he arrived in Australia with his aunt and she raised him from a young age.
[40] Two of his cousins gave evidence in support of the applicant. In particular, they gave evidence of the assistance that he was to his aunty when he was living in her house in Perth. They also reiterated that there was a close relationship between them and the applicant not to mention his aunty.
The Tribunal accepts that if the mandatory cancellation of the applicant’s visa is not revoked it will have a significant impact on his children, notwithstanding the limited contact that he has had with them for some time, and of course the impact that his offending has had on them which resulted in several custodial sentences. The practical reality is, as the applicant contends, that if he is required to return to South Sudan he would never see his children again.
Although contact in recent years has also been less frequent, the Tribunal accepts the impact of such a decision would also be significant on his aunty, who has fulfilled a parental role in the applicant’s life for some years.
The applicant undertook limited employment between 2004 and 2008 including working at KFC, Inghams Chickens, as a bricklayer and in a meat processing factory. Therefore, he has made some positive contribution to the Australian community, albeit limited.
When one assesses the evidence on this other consideration, it is apparent that the applicant has ties to Australia and this must weigh moderately in his favour.
Impact on Australian business interests
No evidence was advanced with respect to this consideration and therefore no weight will be attached to it.
The prospect of indefinite detention
Paragraph 9.1 of Direction 90 is non-exhaustive. It permits the Tribunal as decision-maker to have regard to the specific circumstances of the application including circumstances where a consideration such as the prospect of indefinite detention arises, although it is not specifically listed as an “other consideration” in the direction. It was specifically raised by the applicant, and the Tribunal considers it is appropriate to take into account the respective contentions of the parties concerning this matter.
The respondent contends that little weight should be given to non-refoulement obligations if removed in circumstances where the applicant is able to make an application for a protection visa. In those circumstances all his claims would be fully assessed in a way that in an expedited hearing such as this application the Tribunal cannot undertake.
The applicant contends that he faces a realistic, if not actual prospect of indefinite detention.[41] It is put that if the Tribunal finds that the applicant is owed non-refoulement obligations but also refuses to revoke the visa cancellation such a risk of indefinite detention without prospect of release is apparent and this would cause him significant harm and hardship. Several publications were relied upon by the applicant in support of a contention that indefinite detention would have a profound detrimental impact on his mental health and could result in a high risk of him experiencing chronic depression, incidents of self-harm or attempted suicide.[42]
[41] Paragraphs 120 to 125 of the Applicant’s Statement of Facts, Issues and Contentions are referred to.
[42] He relies upon a publication from Amnesty International, "The Impact of Indefinite Detention: The Case to Change Australia's Mandatory Detention Regime."
The Tribunal is concerned that whether the applicant applies for a protection visa in the future, given its findings concerning non-refoulement obligations earlier in these reasons, almost certainly he will face the prospect of indefinite detention. As for indefinite detention, it is useful to record the observations of the Federal Court in WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs:[43]
“The continued deprivation of a person’s liberty by reason of the operation of the statutory scheme remains a matter a Visa decision-maker should take into account, on the basis that liberty is one of the most basic human rights and fundamental freedoms known to the common law. As we explain below, for our part we see no difficulty in attaching the adjective “indefinite” to such further period of detention, in circumstances where there is no fixed chronological endpoint, and where the person whose liberty is lost has no way of ascertaining when she or he might regain her or his freedom.”
[43] [2021] FCAFC 55 at [123].
Should the mandatory cancellation of his visa not be revoked the applicant is likely to be subject to an uncertain and potentially lengthy time in immigration detention, and in that sense indefinite detention. The applicant contends that even if he were to apply for a protection visa and found to satisfy s 36(2)(a) and/or (aa) the visa could be refused on character grounds. Accordingly, he could not be removed to South Sudan pursuant to s 197C(3). This would also see him potentially remain in detention indefinitely.
Therefore, the prospect of indefinite detention is also a significant factor that the Tribunal has taken into account; and it considers that it weighs to some significant degree in favour of the applicant in its consideration of whether there is another reason to revoke the mandatory cancellation of his visa.
Conclusion
Primary consideration 8.1 “Protection of the Australian community”, and primary consideration 8.4 “Expectations of the Australian community”, both weigh very heavily against revoking the mandatory cancellation of the applicant’s visa.
It should not be lost to sight that the applicant’s offending included significant crimes of violence, which on occasion caused serious injury to his victims. There are also the offences of assaulting police and the weapons offences, including the carrying of a handgun. Also, a significant factor in this matter is the sheer number of offences that the applicant committed over several years. He was imprisoned on several occasions and clearly did not learn his lesson from the experience.
The Tribunal does not consider that the applicant has really gained insight into the gravity of much of his offending, particularly with respect to the crimes of violence, weapons offences and assaulting police that he has committed. It finds that there is a high risk of the applicant reoffending if he is released into the community. The likely harm that would be caused by such offending is more probable than not to be at the very least serious injury or even death. It is a risk that is unacceptable to the Australian community, which in such circumstances would expect the applicant to forfeit the privilege of remaining in Australia.
The Tribunal has found that there are considerations that weigh in the applicant’s favour. It has found that primary consideration 8.3 “Best interests of the minor children”, does weigh to a limited extent in favour of revocation of the mandatory cancellation of the applicant’s visa. It has found that the other consideration 9.1 “International non-refoulement obligations”, weighs heavily in his favour. There is also the prospect of indefinite detention. The Tribunal acknowledges that if the mandatory cancellation of his visa is not revoked and he is returned to South Sudan he faces a real risk of harm, as has been outlined earlier in these reasons. Other consideration 9.2 “Extent of impediments if removed”, weighs moderately in his favour. Similarly, other consideration 9.4 Links to the Australian community, weighs moderately in his favour.
In undertaking the exercise of weighing up the competing considerations the Tribunal notes that paragraph 7(2) of Direction 90 specifies that primary considerations should generally be given greater weight than other considerations. The Tribunal has found no reason in this application to depart from that general proposition. Also, the Tribunal considers it should apply paragraph 5.2(5) Direction 90, which specifies, amongst other things, that 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.
The Tribunal is also fortified in reaching this conclusion by the observations of the Full Court of the Federal Court of Australia in Ali v Minister for Home Affairs[44] that a decisionmaker may conclude that Australia does owe non-refoulement obligations in respect of a person but that the risk to the Australian community posed by the person outweighs Australia’s compliance with those obligations such that there is no “other reason”.
[44] (2020) 380 ALR 393 at [110].
The very heavy weight that applies to primary considerations 8.1 “Protection of the Australian community”, and 8.4 “Expectations of the Australian community”, significantly outweigh collectively the primary consideration 8.3 “Best interests of minor children” and the other considerations that the Tribunal has found weigh in the applicant’s favour.
DECISION
Accordingly, the Tribunal affirms the reviewable decision.
I certify that the preceding 169 (one hundred and sixty-nine) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member
....[sgd]......................................................
Associate
Dated: 14 November 2022
Dates of hearing:
26 and 27 July 2022
Solicitor for the Applicant:
Carina Ford Immigration Lawyers
Counsel for the Applicant:
Advocate for the Respondent:
Bryn Overend
Gabrielle Ho
Solicitor for the Respondent: Clayton Utz
Key Legal Topics
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Immigration
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Administrative Law
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Statutory Interpretation
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Judicial Review
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Procedural Fairness
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