Chol and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2021] AATA 505

Chol and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 505 (15 March 2021)
Division:GENERAL DIVISION
File Number: 2020/8585
Re:Dieu Chol
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:15 March 2021
Place:Melbourne

The Tribunal affirms the decision under review.
...[sgd]....................................................................
Senior Member A. Nikolic AM CSC
CATCHWORDS
MIGRATION – Mandatory visa cancellation – citizen of South Sudan – Class XB Subclass 202 Global Special Humanitarian (Permanent) Visa – failure to pass good character test – extensive criminal record as juvenile and adult – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 79 applied – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Sentencing Act 1991 (Vic)
CASES
Ali v Minister for Home Affairs (2020) 380 ALR 393
Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 959
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
BDQ19 v Minister for Home Affairs (2019) 167 ALD 38
BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94
BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104
Chol v The Queen [2016] VSCA 252
DOB18 v Minister for Home Affairs [2018] FCA 1523
DPP v Dieu Chol [2015] VCC 931
DFTD v Minister for Home Affairs [2020] FCA 859
FYBR v Minister for Home Affairs [2020] HCATrans 56
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Hughes v The Queen (2017) 263 CLR 338
HVLC v Minister for Home Affairs [2019] FCA 616
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Leha and Minister for Immigration and Multicultural Affairs, Re [2000] AATA 1054
Minister for Home Affairs v Omar (2019) 373 ALR 569
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Murphy v Minister for Home Affairs [2018] FCA 1924
Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219
Say v Administrative Appeals Tribunal [2020] FCA 1489
Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705; (2015) 148 ALD 117
Waits and Minister for Immigration and Multicultural and Indigenous Affairs, Re [2003] AATA 1336
SECONDARY MATERIALS
AFP, 'Sudanese rebels and government enter final phase of talks', The Citizen (online, 19 July 2020) < 'CIA World Factbook - South Sudan June 2020', The World Factbook (Web Page, 25 February 2021) < Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)
Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)
Department of Foreign Affairs and Trade, Country Brief – South Sudan, 5 October 2016
Department of Home Affairs, Standard Q&A Report South Sudan (Report No 20190411092354, 28 May 2019)
Direction No. 75 – Refusal of Protection Visas Relying on Section 36(1C) and Section 36(2C)(b)
Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Douglas, KS et al, HCR-20v3: Assessing Risk for Violence (Mental Health, Law, and Policy Institute, Simon Fraser University, 2013)
Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth)
Forcier Consulting, A Study of Statelessness in South Sudan, UNHCR (29 April 2018)
Hare, RD, Hare Psychopathy Checklist-Revised (PCL-R) (Multi-Health Systems, 2^nd ed, 2003)
International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
Manby, B, Statelessness and Citizenship in the East African Community, UNHCR (1 September 2018)
OASC, South Sudan 2019 Crime & Safety Report (US Department of State, 8 March 2019)
Oluoch, Fred, 'South Sudan peace building on track, Igad told', The East African - Kenya (online, 15 July 2020) < Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)
Sentencing Advisory Council, ‘Imprisonment’, < David, ‘Briefing to the Security Council by the Special Representative of the UN Secretary-General David Shearer’, United Nations Peacekeeping (Statement, 16 September 2020) < Nationality Act 2011 (South Sudan)
The Sudanese Nationality Act 1984 (Sudan)
The Sudanese Nationality Act (Amendment) 2011 (Sudan)
Transitional Constitution of the Republic of South Sudan 2011 (South Sudan)
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
15 March 2021
INTRODUCTION

The Applicant, Mr Dieu Chol, has asked the Tribunal to review the decision by a delegate of the Minister not to revoke the mandatory cancellation of his Class XB Subclass 202 Global Special Humanitarian (Permanent) Visa (the visa).
The hearing was held in Melbourne on 4 and 5 March 2021. Parties appeared by audio-visual link consistent with the Tribunal’s COVID-19 Special Measures Practice Direction. The Applicant was assisted by an interpreter in the Dinka language and it was confirmed at the commencement of the hearing that he and the interpreter could understand each other. The Applicant chose to make some submissions and answer some questions in English, while on other occasions he utilised the interpreter.
Following the cancellation of his visa, the Applicant was assisted by the Refugee and Immigration Legal Centre (RILC) with preparing statements and other submissions. He was also assisted by the RILC during the pre-hearing phase of this matter but was self-represented at the hearing. The Minister was represented by Mr Booth, a solicitor from Clayton Utz.
For the following reasons the Tribunal affirms the decision under review.
BACKGROUND
The Applicant was born in 1989 in South Sudan and is of Dinka ethnicity.[1] When asked about religion, the Applicant stated he is a Christian.
[1] Exhibit A1, 1 [4].
The Applicant’s claims about his early life are inconsistent. At the present hearing he repudiated past claims about witnessing the murder of his parents and siblings,[2] and about serving as a child soldier.[3] He stated during oral evidence that he does not personally know if his parents and siblings are ‘alive, dead, or missing,’ and that neither he nor cousins referred to in his past evidence served as child soldiers. He blamed inconsistencies in his evidence on miscommunication or being misunderstood by others. This is discussed later in these reasons.
[2] Exhibit R2, 31 [33]; Exhibit A1, 1 [5]; Exhibit R1, 124 [15].
[3] Exhibit R2, 32 [34].
The Applicant said that at the age of seven he joined his aunt’s family and lived with them for a time in South Sudan. He then travelled with his aunt to the Kakuma Refugee Camp in Kenya, arriving there when he was 11 or 12 years of age.[4] After his aunt was granted a humanitarian visa, he travelled to Australia under her sponsorship. The Applicant was almost 15 years of age when he arrived in Australia on 12 November 2003 and has not departed since.[5]
[4] Exhibit A1, 1 [5].
[5] Exhibit R1, 165.
The Applicant said he briefly attended secondary school in Australia but left during Year 8 because he was ‘unhappy’ and found English hard to learn.[6] He stated that he cannot read or write in any language, but has a basic understanding of English and speaks Dinka and Arabic fluently.[7]
[6] Ibid, 83; 125 [17].
[7] Ibid, 197.
After leaving school the Applicant said he worked intermittently in Perth,[8] but is unable to recall the specific he years worked or the names of most employers.[9] The Applicant said he relocated to Melbourne in 2011, but in 2012 got a job in South Australia and worked there as a factory hand for approximately two years before losing that job as result of a fight.[10] He returned to Victoria where he was ‘convicted of offences and sent to jail.’[11]
[8] Ibid, 125 [18].
[9] Ibid, 198.
[10] Exhibit R2, 26 [21].
[11] Exhibit R1, 125 [19].
The Applicant’s criminal history commenced as a juvenile.[12] His adult offending is between 2007 and 2018 in four states.[13] After convictions in September and November 2011, which resulted in sentences of imprisonment collectively exceeding 12 months, the Applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his visa on 22 February 2012.[14] He acknowledged receiving the NOICC on 8 March 2012[15] and lodged a Personal Details Form in response.[16] Further NOICCs were sent to him by the Respondent via registered mail on 30 April 2012 and 10 July 2012,[17] for which there are no receipts.
[12] Ibid, 325–326; Exhibit R2, 31 [31]; 123.
[13] Exhibit R1, 37–40.
[14] Ibid, 203–208.
[15] Ibid, 209.
[16] Ibid, 222–229.
[17] Ibid, 210–221.
On 3 July 2015, the Applicant was convicted in the County Court of Victoria of Intentionally cause serious injury (ICSI), for which he received a sentence of four years and nine months imprisonment.[18] This conviction resulted from an incident in a suburban shopping mall in 2012 while the Applicant was on parole for previous offending.[19] He punched a 55-year-old Tasmanian man in the head who was unknown to him, and who the Court said did nothing to provoke the attack.[20] The Applicant then knelt over the victim and punched him at least ten further times to the head, then stood and kicked him twice in the head.[21] During the assault, it was reported that a female who appeared known to the Applicant held the victim’s legs down and then took the victim’s mobile phone and wallet, containing approximately $400.[22] The victim suffered extensive bleeding, fractures, severe swelling, and reduced eye movement. He was hospitalised for 12 days, had reconstructive surgery, and suffered physical and mental disabilities. The Court held that rather than make ‘a good recovery from his injuries,’ the victim’s life was ‘profoundly affected three years after’ the assault.[23]
[18] Ibid, 47; DPP v Dieu Chol [2015] VCC 931.
[19] Ibid, 44 [9].
[20] Ibid, 43 [8].
[21] Ibid, 50–51 [3]–[4].
[22] Exhibit R2, 126 [10].
[23] Exhibit R1, 43 [7].
The Applicant sought leave to appeal his July 2015 sentence, which was refused on 19 October 2016 by the Supreme Court of Victoria, Court of Appeal. The Court considered the seriousness of the Applicant’s offending was such that his sentence was ‘lenient in the circumstances.’ [24]
[24] Chol v the Queen [2016] VSCA 252, [2] (Maxwell P, Redlich JA and Weinberg JA).
On 11 September 2017, the Applicant’s visa was mandatorily cancelled on character grounds under s 501(3A) of the Migration Act 1958 (Cth) (the Act) (cancellation decision),[25] because he had a ‘substantial criminal record’ within the meaning of s 501(6(a) of the Act.
[25] Exhibit R1, 64–70.
On 28 May 2018, the Applicant was convicted in the Bendigo Magistrates’ Court of Recklessly cause injury.[26] This resulted from an incident in prison on 22 December 2016 during which the Applicant stabbed his cellmate. He received a six-month sentence of imprisonment, to be served concurrent with the sentence he was then serving.
[26] Ibid, 37.
On 17 September and 24 December 2019, the Respondent wrote to the Applicant inviting him to comment on additional information received about his offending and other misconduct while imprisoned.[27] Between January and May 2020, representations were made by the Applicant and the RILC to have the cancellation decision revoked.[28] In August and November 2020, the Respondent again wrote to the Applicant inviting comment about additional information received about his offending and other misconduct while detained.[29]
[27] Ibid, 375–380.
[28] Ibid, 69–164; 381.
[29] Ibid, 383–393.
On 22 December 2020, the Respondent declined to revoke the cancellation decision (non-revocation decision),[30] and notified the Applicant of this on 23 December 2020.[31] The Applicant acknowledged receipt of the non-revocation decision on the same day.[32]
[30] Ibid, 34.
[31] Ibid, 10–12.
[32] Ibid, 394.
On 24 December 2020, the Applicant asked the Tribunal to review the non-revocation decision,[33] stating as the reason for his application:
I believe that the decision not to revoke my visa was wrong as I am a refugee and come from a war torn country. I am a father of five, who are all Australian citizens…My lawyer will be in touch and will add futher reasons. Thank you
(Errors in original)
[33] Ibid, 3–9.
Pursuant to s 500(6L) of the Act, the Tribunal must make a decision in this matter within 84 days of the Applicant being notified of the non-revocation decision in accordance with s 501G(1), or it is deemed to be affirmed. There is no dispute the Applicant was notified on 23 December 2020, meaning that the 84^th day in this matter is 17 March 2021; seven working days after the conclusion of the hearing.
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction to review decisions under s 501CA of the Act.
Section 501(3A) of the Act, read in conjunction with ss 501(6) and (7), obliges the Minister to cancel a person’s visa if satisfied that the person does not pass the character test and is serving a full-time sentence of imprisonment.
The ‘character test’ is defined in s 501(6) of the Act. It refers to a range of character matters that the Minister may have regard to in deciding whether to revoke a mandatory visa cancellation. Section 501(6)(a) of the Act provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or …
Section 501(7) of the Act sets out six circumstances in which a person is taken to have a substantial criminal record, including if the person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).
Under s 501CA(3) of the Act, the Minister is obliged, as soon as practicable after deciding to cancel a visa, to give notice of the decision to the person and invite them to make representations about revoking the original cancellation decision. Provisions relating to the form and process of those representations are found in reg. 2.52 of the Migration Regulations 1994 (Cth).
A person whose visa is cancelled under s 501(3A) of the Act becomes an unlawful non-citizen within the meaning of s 14 of the Act and is liable to be detained under s 189. Sections 197C and 198 of the Act provide:
197C Australia’s non refoulement obligations irrelevant to removal of unlawful non-citizens under section 198
(1)For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(2)An officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.
198Removal from Australia of unlawful non‑citizens
…
(2B)An officer must remove as soon as reasonably practicable an unlawful non‑citizen if:
(a)a delegate of the Minister has cancelled a visa of the non‑citizen under subsection 501(3A); and
(b)since the delegate’s decision, the non‑citizen has not made a valid application for a substantive visa that can be granted when the non‑citizen is in the migration zone; and
(c)in a case where the non‑citizen has been invited, in accordance with section 501CA, to make representations to the Minister about revocation of the delegate’s decision—either:
(i)the non‑citizen has not made representations in accordance with the invitation and the period for making representations has ended; or
(ii)the non‑citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the delegate’s decision.
Note:The only visa that the non‑citizen could apply for is a protection visa or a visa specified in the regulations for the purposes of subsection 501E(2).
Section 501CA(4) of the Act provides a discretion that the Minister may revoke the original decision, if the person whose visa has been cancelled makes representations in accordance with the invitation, and the Minister is satisfied that the person passes the character test, or there is another reason why the original decision should be revoked.
Section 501E of the Act provides:
(1)A person is not allowed to make an application for a visa, or have an application for a visa made on the person’s behalf, at a particular time (the application time) that occurs during a period throughout which the person is in the migration zone if:
(a)at an earlier time during that period, the Minister made a decision under section 501, 501A, 501B or 501BA to refuse to grant a visa to the person or to cancel a visa that has been granted to the person; and
(b)the decision was neither set aside nor revoked before the application time.
…
(2)Subsection (1) does not prevent a person, at the application time, from making an application for:
(a) a protection visa;
…
Direction No. 79
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act, provided the directions are about the performance of those functions or the exercise of those powers. The Minister has done so in the form of Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (the Direction). Section 499(2A) mandates that the Tribunal must comply with the Direction.[34]
[34] BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104, 9 (Collier, Flick and Perry JJ).
The purpose of the Direction is to guide decision-makers in performing functions or exercising powers under ss 501 and 501CA of the Act. Clause 6.1 of the Direction sets out several objectives, the first of which is to ‘regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.’
By way of general guidance, cl 6.2 of the Direction provides that:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
…
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA...

The principles referred to in the Preamble of the Direction are reproduced below. They constitute a framework within which decision-makers apply the Direction to the specific circumstances of each case:
6.3 Principles
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Clause 7(1)(b) of the Direction provides that, in cases relating to the mandatory cancellation of a visa, a decision-maker ‘must take into account the considerations in Part C…’. The following primary considerations at cl 13(2) of the Direction must be applied:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
Clause 14(1) of the Direction requires that other considerations to be taken into account include but are not limited to:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
Clause 8(2) of the Direction states that in applying the primary and other considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
Clause 8(3) of the Direction states that ‘Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.’
Clause 8(4) of the Direction states that ‘Primary considerations should generally be given greater weight than the other considerations.’
Clause 8(5) of the Direction states that ‘One or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461 at [57] and [78], in relation to previous ministerial directions:
[57] … the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501.
…
[78] … Ultimately…each decision-maker must return to the probative material and evidence in an individual case: it is not the content of the Direction which determines the outcome of the exercise of the s 501 discretion, but rather its application by a particular decision-maker to the evidence and material in an individual case.
DOES THE APPLICANT PASS THE CHARACTER TEST?
Because of his July 2015 conviction and imposition of a sentence exceeding the threshold statutory period of 12 months, the Applicant does not pass the character test. Accordingly, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation decision.
ISSUE TO BE RESOLVED
It remains to be determined under s 501CA(4)(b)(ii) of the Act if there is ‘another reason’ why the cancellation decision should be revoked. This task was elaborated upon by the Full Court of the Australian Federal Court (FCAFC) in Viane v Minister for Immigration and Border Protection:[35]
There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.
EVIDENCE
[35] (2018) 263 FCR 531, 545–6 [64] (Colvin J).
Documentary evidence and witnesses
On 17 February 2021, a Telephone Directions Hearing (TDH) was conducted to inquire into the Applicant’s non-compliance with scheduling orders, which required him by 10 February 2021 to lodge with the Tribunal and give to the Respondent:
(a)an outline of his submissions and contentions at the hearing; and
(b)any witness statements and other evidence on which the Applicant intended to rely.
No documents were lodged by the Applicant on or before 10 February 2021 and he did not contact the Tribunal to explain his non-compliance or seek leave for later filing.
At the TDH the Applicant informed the Tribunal that he was being assisted by the RILC in preparing statements and other materials. A week-long extension of the previous scheduling orders was provided. An email with accompanying statement was subsequently received from the Character Clinic Supervisor of the RILC, who stated:
Dear Registry,
...
Refugee Legal provided limited assistance through a clinic to Mr Chol at the Department stage of his visa cancellation. On 15 February 2021, Mr Chol had a further appointment with a Registered Migration Agent from Refugee Legal to prepare the attached updated statement. Mr Chol also instructs that he relies on all evidence previously provided to the Department, a copy of which is attached herewith.
Mr Chol has advised today that he is unable to forward these materials to the Tribunal. As such, he has asked us to do this for him. Mr Chol is copied into this email.
The documents taken into evidence at the hearing were:
(a)G-documents numbering 394 pages;[36]
(b)A bundle of material produced under summons numbering 378 pages;[37]
(c)Applicant’s statement dated 15 February 2021;[38] and
(d)Undated and unsigned statement of the Applicant’s aunt.[39]
[36] Exhibit R1.
[37] Exhibit R2.
[38] Exhibit A1.
[39] Exhibit A2.
The Applicant and his aunt were the only witnesses at the hearing.
National Criminal History and sentencing remarks
The Applicant does not dispute the accuracy of his criminal history or the transcripts from the County Court or Court of Appeal.[40]
[40] Exhibit R1, 41–63.
Applicant’s evidence
The Applicant adopted his statement dated 15 February 2021 as true and correct, which was prepared on his behalf by the RILC. Given his inability to read and write, he said the statement was read back to him to confirm its accuracy.
Early life
The Applicant said his aunt is like a ‘mother substitute’ to him and sponsored his travel to Australia under a Humanitarian Visa. He attended school briefly in Australia but left in Year 8. While living with his aunt in Perth he said their relationship was not always good because she tried to stop him drinking, wasting money, and mixing with bad influences. He now realised she was trying to help. When asked about the relationship with his uncle, the Applicant responded: ‘not that much, uncle always used to be busy, he worked a lot.’
Offending and other misconduct
The Applicant stated: ‘What I’ve done in the past is because I was young.’ He attributed his offending prior to departure from Perth as predominantly linked to immaturity, alcohol abuse and association with negative peers:
I started drinking alcohol at a young age because my life was not easy. When I was drinking I was a different person and I did stupid things. My family were not happy about my behaviour and told me to stop drinking and not to hang around with the friends I had at that time. When l moved to Melbourne I started taking drugs as well as drinking. I know now this was not good for me.[41]
[41] Exhibit R1, 125 [21].
The Applicant attributed his offending after arrival in Melbourne in around 2010 or 2011 as predominantly linked to heroin and methamphetamine addiction, claiming to have been introduced to drugs by ‘wrong friends.’ He said it was hard in Melbourne to find work and somewhere to live. Unlike Perth he said there were no relatives to counsel and support him. When put to the Applicant that despite the advice and support of family in Perth, the evidence disclosed multiple juvenile and adult convictions there, he attributed this to immaturity and not listening to his aunt.
The Applicant said that in Melbourne he used drugs instead of talking to doctors or psychologists about his depression. He funded his drug addiction, which was half a gram of heroin or ice up to five times a day at its height, through shoplifting and other crimes.
When asked by Mr Booth about convictions for Wilful and obscene exposure in public and nine counts of assaulting police following an incident in a McDonald’s restaurant in 2011, the Applicant denied exposing his penis to female staff members. He instead claimed to have gone there with others around midnight and joined a ‘big line’ of people waiting to be served. He said they were last in line and were unfairly refused service on the purportedly false claim that the store was closing. He blamed the store manager and another staff member for becoming aggressive towards his group, claiming he tried to calmly reason with the manager. He claimed to have been tackled to the ground by the manager and another worker who then tried to rob him. When put to the Applicant that these claims did not match the police reports, the Applicant continued to deny instigating the conflict or exposing his penis to staff members. He agreed that he threw a cash register and other items because he was ‘very upset’ at the treatment his group received. In response to further questions, the Applicant said he was very drunk and could not recall all the details. The Applicant also denied being arrested on this occasion, claiming he left when asked by police. When challenged that the police records indicated he was arrested, uncooperative and violent, the Applicant responded: ‘I was drunk, and it was a long time ago.’
When asked about a violent assault against a man in a suburban shopping mall in 2012, the Applicant claimed two ‘ladies’ he was with were ‘screaming for help’ and shouting ‘leave us alone’ after being approached by an unknown man. He claimed the man wanted to have sex with the women and offered the Applicant money, which the Applicant refused. The Applicant said he offered to show the man ‘the way to a brothel’ but the man pushed him and threw the first punch ‘from the back.’ The Applicant said he acted in self-defence but ‘went overboard.’ When asked how many times he punched and kicked the man, the Applicant responded he did not know because he ‘was on drugs and alcohol.’ He also agreed, consistent with a psychologist’s report, that he ‘blacked out and went overboard’ during this offending.[42] When the facts from his Court appearance were read out to him, the Applicant agreed they were correct and that he was found guilty. When asked by Mr Booth about references to him showing no remorse during his police interview, the Applicant responded: ‘I was on drugs and alcohol and not thinking normal.’ The Applicant agreed it was possible the victim could have died, because ‘even one punch can kill,’ and that he had a significant impact on the victim’s life.
[42] Exhibit R2, 24–25.
The Applicant agreed that Domestic Violence Orders were taken out against him in the past but could not remember much about them because of the effects of alcohol. When asked about a police report of one violent incident,[43] the Applicant recalled this related to a former girlfriend: ‘We used to fight a lot. She was the one who was always crazy.’ He agreed that he did kick her in the mouth on one occasion but denied the reference in a police report to chasing her with a knife. He claimed this incident arose because he ‘caught her with another man’ and ‘lost it.’
[43] Exhibit R2, 191.
When asked about reports that he often possessed weapons while living in Melbourne, the Applicant referred to being caught by police with what he thought was a ‘tobacco pipe,’ but later discovered was a ‘pen gun.’ He said that he found the pen gun while searching through clothes in a recycling bin. The Applicant also agreed he carried a knife in the past but could not recall if he carried other weapons. He also agreed that a metal rod and sharpened butter knife was found in his cell while imprisoned but claimed: ‘One of my mates handed me a weapon because they were searching his cell and I hid it for him.’ When asked why he hid weapons for someone else, the Applicant responded: ‘In prison I’ve been stabbed before - I didn’t want to get stabbed again. I had it but I wasn’t going to use it.’ The Applicant explained that in Africa ‘fighting is normal…we fight amongst us.’ The Applicant said he was now more mature, had ‘done a lot of courses,’ and would not carry a weapon if released, but instead call for police assistance if threatened.
The Applicant was asked about his 13 offences for obstructing or assaulting police. He said that he was previously ‘upset with the police’ but ‘not now’ and felt bad about assaulting them. The Applicant was asked about multiple incidents of reported violent, aggressive and threatening behaviour with prison guards and detention staff. He agreed the prison incidents occurred because he was ‘very upset,’ but claimed there had not been incidents in immigration detention. When referred to several records in evidence where he reportedly abused and threatened detention centre staff,[44] the Applicant said he only had problems with one staff member who was a ‘racist person.’
[44] Exhibit R1, 173.
NOICC
The Applicant was asked about letters received from immigration officials in 2012 warning him that visa cancellation was being considered as a result of his criminal offending. He recalled receiving a letter dated February 2012 while imprisoned, but said someone else read it to him, and he ‘didn’t understand it.’ The same person asked him to sign the receipt for the letter, which he did. When put to the Applicant that he appeared to have received several similar letters from the Department in 2012 and it was implausible he had no idea what the correspondence was about, he stated: ‘I had an idea.’ When pressed, the Applicant said the person who read him the letter advised it was ‘giving you a warning.’ When pressed further, the Applicant said the letters were ‘from migration’ and conveyed a message to: ‘Stop doing my crime or I’ll have to leave the country.’ When asked why he went on to commit further serious crimes after receiving these letters, the Applicant responded: ‘good question…but what happened in the past let’s forget it…I have reformed while in custody.’
Remorse
On several occasions the Applicant expressed remorse for past offending and other misconduct, stating that he accepted responsibility for his conduct, was sorry and ‘won’t do it again.’ He claimed to ‘love Australia’ and felt ‘bad about injuring people.’ He asked for forgiveness and ‘one more chance to go back to my normal life’. He now wanted to be a good father and contribute to the community, including by helping other children and relatives so ‘they don’t make the same mistakes that [he] did.’
Conduct in custodial environments
It was put to the Applicant that even when claiming to be sober in prison and immigration detention he was still violent and aggressive. He disagreed, stating: ‘not since doing courses. They made me look at things differently.’ When specific incidents were put to him from his prison sentence and in immigration detention up to late 2020,[45] the Applicant claimed to have only been involved in ‘one fight’ in prison and this was because he was ‘getting attacked.’ He said that he smoked ice ‘a couple of times’ in prison and used ‘Bupe.’ He agreed that he was involved in eight drug-related incidents between 2015 and 2017, including six positive drug tests, and that 15 litres of home brew were found in a cell he shared with another person. The Applicant claimed that since commencing the Methadone Program three years ago, however, he felt ‘ok’ and did not need to use other drugs.
[45] Exhibit R1, 188–189.
The Applicant agreed he was convicted in May 2018 of Recklessly cause injury, which arose from an incident where he stabbed his cellmate in prison. He claimed to have acted in self-defence after his cellmate produced a knife and tried to stab him first. He claimed to have avoided injury because of wearing several jumpers at the time. The Applicant agreed his cellmate was not charged with any offence. When asked to elaborate on this incident, the Applicant denied he was dealing drugs as contained in a psychologist’s report,[46] but was instead dealing cigarettes to other prisoners, including his cellmate. He claimed that his cellmate paid another debt first rather than a cigarette debt owed to the Applicant: ‘He was disrespecting me by failing to pay.’ The Applicant said he tried to reason with his cellmate, who produced a knife. It was put to the Applicant that his version of events, including about self-defence and his cellmate producing a knife, was inconsistent with prison records. The Applicant agreed he stabbed his cellmate but insisted he did not go and get a knife from another location first as stated in the records.
[46] Exhibit R2, 23 [15].
The Applicant was asked about being found in February 2019 with a 15 cm long metal rod in the hem of a curtain in his prison cell and a makeshift rope made from bedsheets under his bed. He contended that the metal rod was someone else’s and the makeshift rope was used as a ‘curtain.’ He was also asked about reported misconduct in detention, such as being involved in a fight with another detainee,[47] abusing and threatening staff in May 2020 during a room search,[48] and telling a female Detainee Service officer (DSO) to ‘fuck off.’[49] In relation to the latter incident the Applicant explained he lit a cigarette from a toaster and was smoking inside because it was too cold to do so outside. He agreed that he swore at the DSO when she told him to smoke outside. In relation to the room search incident, he claimed the officers moved his clothes in a ‘dirty place,’ which he objected to. He said it was the officers who told him to ‘fuck off because they could do whatever they wanted.’ The Applicant blamed the conduct of these officers for him saying ‘some words and…losing it.’ The Applicant submitted that ‘some officers are just doing their job’ but ‘some people in prison and detention can cause you to be angry.’
[47] Exhibit R1, 179.
[48] Ibid, 184.
[49] Ibid, 177.
Rehabilitation and risk

The Applicant stated: ‘I accept I was bad until now, but I intend to be good in the future…I’m not going to be that person again…I used to refuse services before, but in prison I accepted services. I now know what to do to make my life different.’ He said that prior to being imprisoned in 2015 he had an anger problem, but the ‘High Intensity Violence Intervention Program,’ and drug and alcohol programs in 2017[50] helped him a lot. Participation in the Methadone Program for the last three years had also assisted him. When challenged that he continued to be involved in violent, aggressive, threatening and drug-related conduct while imprisoned and in immigration detention, the Applicant agreed he had, explaining that ‘in prison there are a lot of incidents.’ When pressed that he was also involved in violent, aggressive and threatening incidents in immigration detention, the Applicant claimed it was ‘very strict’ in detention and he did not ‘know the rules.’ He said that ‘even when you pass cigarettes, they charge you for trafficking.’ He claimed that ‘anything you say’ prison officers and DSO’s ‘make a big deal’ out of, which he said was intended to ‘mess up’ his visa.
[50] Ibid, 133; 168.
The Applicant claimed he no longer constituted a risk to the community. When asked about the Court’s conclusion in 2018 that his prospects of rehabilitation were poor, the Applicant said he knew in his heart that ‘I will change.’ When put to the Applicant that expert risk assessments in evidence found he was a high risk of reoffending, he responded: ‘that high risk reflects my past but not my present.’
Interests of children
The Applicant’s oral evidence focussed on the interests of five biological children he claimed to have in Australia. He agreed that no birth certificates or statements from the mothers or other legal guardians of these children are in evidence. When asked why there were no statements from his children, the Applicant said some were too young and he could not coordinate statements from the older ones in time. The Applicant was asked about inconsistencies in his evidence about the five biological children he claimed to have with four different women. He claimed that this arose from misunderstandings by those who helped him prepare statements and other reports. When asked why his aunt, who he claimed was like a mother to him, only referred in her oral evidence to him having two children, one in Perth and one in Melbourne, the Applicant said ‘maybe I didn’t explain’ about the others. The Applicant insisted he has five children as follows:
(a)A son who turns 13 soon and lives with his mother and her new partner in Perth. The Tribunal will refer to the mother of this child as MJ. The Applicant claimed that as a teenager this child needs his paternal guidance: ‘I now have responsibilities to care for my son.’ There was no statement from this child or MJ in evidence, which the Applicant said was because MJ had re-partnered and has another child with that partner. He described his relationship with MJ as involving several breakups because when MJ was younger, she was ‘not normal and got upset quick.’ The Applicant agreed they had verbal arguments but said he ‘never hit her.’ The Applicant claimed the son he has with MJ lived with him in Melbourne for two years in 2012 and 2013, but this ended because of the Applicant’s heroin and ice addiction. Although he agreed that his son was in the house when he was using heroin and ice, the Applicant insisted his son never observed him using drugs. He said that he calls his son by telephone ‘every three days;’
(b)Two sons who he initially thought were ‘turning ten or eleven’ and ‘turning seven’ respectively, and who lived with their mother in Melbourne. The Tribunal will refer to the mother of these children as AA. When asked why there was no statement from AA, the Applicant said she worked interstate and was too busy with work. The Applicant claimed to talk with these two children by telephone every two weeks;
(c)A daughter who is seven years of age and lives with her mother in Melbourne, who the Applicant claimed is his current partner. The Tribunal will refer to her as SS. When asked why there was no statement from SS, the Applicant said he had asked her, but they ‘had a fight and she was very upset,’ following which they had not talked for the last two months. The Applicant agreed that SS previously used drugs but claimed ‘she’s not doing it anymore - she quit a long time ago.’ He claimed to talk with his daughter on the telephone ‘every night’ and they are ‘very close;’ and
(d)A fifth child of indeterminate age with a woman whose last name he could not recall. He stated he had not been in a relationship with the woman and she just wanted a child from him. He does not know where she or the child live or their current circumstances.
The Applicant agreed that others had performed the primary parental responsibility for these children. In response to questions, the Applicant confirmed that apart from the children claimed above, he did not have close relationships with any other minor children in Australia.
When asked about references in the evidence to a $20,000 child support debt, the Applicant agreed he has a child support debt but could not recall how much it was. He said the debt only related to the children he has with MJ and SS. He said that he had received a call from child support authorities recently with a deadline ‘this month’ asking him to pay $4,000 of the debt but was unable to do so. He said that he received very little income while imprisoned and had asked someone in the child support authority to cease withdrawing payments and accumulating debt while he is detained, which they purportedly agreed to. He said that when at liberty in the community he paid child support from his Centrelink payments.
Protective factors and future aspirations
The Applicant said if released he would live with his aunt in Perth and receive family and community support. When referred to expert evidence recording his claims about difficulties while living with his aunt in Perth in the past, the Applicant stated: ‘All these things happened when I was a child…She was giving me advice that I thought was wrong…she was not giving me money…I did not change, but it does not mean it was her weakness. I didn’t want to change.’ The Applicant was challenged about his claim that while living in Perth he was ‘good’, and it was only after moving to Melbourne that his problems commenced. The Applicant was referred to multiple court appearances as a juvenile and adult in Perth but claimed: ‘I was only drinking and fighting in Perth, but no drugs or stealing.’
The Applicant said upon return to Perth he would find work and provide financially for his children. He agreed the last job referred to in the evidence was in Adelaide approximately a decade ago, which he lost after engaging in a fight. He claimed to have since had a ‘cash in hand’ job for which he did not pay tax, and the details of which he did not disclose. The Applicant claimed to have a ‘job waiting’ in Perth and said one of his cousins could assist him in securing work in ‘maybe mining, bricklaying or the…chicken factory.’ His preference was mining. When put to the Applicant that this meant he may have to move away from Perth and could not live with his aunt, the Applicant responded: ‘I thought there was a mining place in Perth.’ When asked why no statement was provided by the cousin who could help him find work, the Applicant responded: ‘In the South Sudanese community they’re busy doing their own thing…They said they would do a statement but they’re too busy working.’
The Applicant said one of his children lived in Perth and after securing a job and finding somewhere to live independently, the child would live with him. He also claimed that SS and their daughter in Melbourne would also relocate to Perth to live with him. He agreed that establishing himself in this way may take some time.
When asked if there was any medical or psychological condition preventing him from returning to work, the Applicant responded: ‘No - nothing. I’m only taking medication for depression.’ The Applicant subsequently confirmed he has taken Methadone for the last three years, claiming to have recently reduced his dosage ‘a little bit’ from 85 ml to 65 ml daily. He stated that he was ‘going to try to reduce it’ further if released. He also intended to ‘see some psychiatrist or doctor and get some counselling.’ He planned to do further rehabilitative courses but did not articulate what these might include. He also wanted to return to school and improve his English.
Contribution to Australia
When asked about any contributions since arriving in Australia, the Applicant said he worked, paid taxes, and did voluntary community work. When asked if this community work was under court orders, the Applicant agreed it was, but also claimed to have gone ‘camping with Sudanese youth.’ There was no independent evidence about the extent of paid work undertaken by the Applicant, past tax contributions, or recipients of his claimed volunteering.
Non-refoulement and extent of impediments if removed
The Applicant said that if returned to South Sudan he knows nobody there and his ‘life will not be good.’ When asked about any fears for his safety, the Applicant responded: ‘Because of my father, he was a rebel. They treat you like you are a traitor because you left South Sudan.’ When asked what he meant by ‘rebel,’ the Applicant responded: ‘He was a rebel because they lived in the bush.’ When asked to clarify who his father was a ‘rebel’ for, the Applicant responded: ‘I don’t know.’ When put to the Applicant that he left South Sudan as a young child and people would not know who his father was, he responded: ‘In South Sudan it’s not like Australia, people know where you belong. Because of your name it can bring problems.’ When referred to his previous claim that ‘Chol’ is a common name in South Sudan, the Applicant claimed that his identity could also be distinguished by his middle name and that people there would know his family origins.
When asked about his previous claims to a psychologist in 2019 that he served as a child soldier for four years, learned how to kill people, and was injected with heroin, the Applicant responded: ‘The lady misunderstood me.’ When asked about his previous claims about seeing his family killed, the Applicant responded: ‘I don’t know whether they’re alive or dead,’ claiming the people who assisted him at the RILC, the psychologist in 2019, and others ‘misunderstood me.’ When put directly to the Applicant that a number of his claims about the fate of his parents, what he did after his parents died and other details about the sources of his claimed trauma in South Sudan were not true, he responded: ‘some are true and some are not true.’
The Applicant said that because he came from a western country he would ‘stand out’ and the ‘Government people would give me a choice – join the Army or be killed,’ which is what friends who had been to South Sudan told him. The Applicant referred specifically to two people he met while imprisoned and immigration detention as key sources of information about life in South Sudan. There was no statement from these unnamed persons in evidence. The first person he referred to was someone he met while imprisoned who returned to South Sudan for a ‘holiday,’ but had since relocated to Kenya via Uganda. The second person was someone he claimed to have met in detention who voluntarily elected to return to South Sudan. The Applicant had since communicated with this person ‘on Facebook,’ who told him about being beaten up and that unnamed people ‘made him take money out.’ He also told the Applicant about being ‘sent to the war’ where he shot himself so he would not have to fight. The Applicant said this person still lived in South Sudan. When asked for details of the Applicant’s Facebook account and that of his friend, the Applicant claimed his ‘Facebook was now off.’ He said that his most recent interaction with the person was ‘last year.’ When asked how he could communicate with this person on Facebook while claiming to be unable to read or write in any language, the Applicant said someone writes on Facebook for him. The Applicant claimed that the other friend living in Kenya told him he had been ‘locked up’ in South Sudan but was not robbed or pressed to join the Army. The Applicant said this was because he ‘wasn’t going there to stay, but just went for a holiday.’
When asked where he would live if removed to South Sudan, the Applicant said he did not know, but would have to live with other Dinka people. He said people kill each other in South Sudan because of their different ethnicity, and his father’s role as a rebel would make him stand out. When asked why he feared harm as a Dinka or because of the connection with his father given that a Dinka-led Government was in control in South Sudan, the Applicant responded: ‘I am a Dinka, but different Dinkas have different interests.’ When put to the Applicant that his claims were very general and uncorroborated, the Applicant insisted he had been told these things by the two people previously referred to, his auntie and unnamed ‘uncles.’ When asked if he had applied for a Protection Visa, the Applicant said he had not.
Evidence of Applicant’s aunt
On 1 March 2021 at 3:55pm, the Tribunal received an email from the Character Clinic Supervisor at the RILC, which stated in part:
Further to our email below, Mr Chol has asked us to provide the attached statement in support to the Tribunal. This statement is provided by Ms [name redacted] – Mr Chol’s aunt. Ms [name redacted] has been unable to sign the statement; however, she has consented to it being provided unsigned.
Attached to the RILC email was an unsigned and undated statement from the Applicant’s aunt, who purported to speak for others that would support the Applicant upon release. The statement referred to the Applicant having ‘lived through experiences that affected him when he was growing up,’ without elaborating on what these experiences were. The statement also referred generally to a ‘plan’ for the Applicant live with his aunt in Perth. Certain support tasks are attributed to family members and an organisation that purportedly ‘helps with all immigrants in Western Australia,’ but without any corroborating evidence from the family members or organisation referred to. The statement also referred to ‘great fears’ about the Applicant’s safety in South Sudan, including being killed. Reference is also made to non-revocation having a ‘huge impact on me and our whole family,’ without elaborating on the impact and without any corroboration from other family members.
During the hearing, the Tribunal obtained the mobile telephone number of the Applicant’s aunt from the Applicant, who subsequently gave oral evidence on the second day of the hearing. When asked about her undated and unsigned statement, the witness said she had never seen it before, and only had a telephone discussion recently with a woman whose name she could not recall. Having not seen the statement before, the witness could not adopt it as true and correct. The witness said the Applicant was a ‘good person’ when he was living with her in Perth and his problems only arose after ‘he left me and went to Melbourne.’ When asked if she had seen the Applicant drinking alcohol in Perth, the witness said: ‘everybody can drink,’ but insisted she had not seen him associate with negative peers. When challenged that the Applicant had a criminal history as a juvenile and adult while living in Perth, the witness conceded: ‘Sometimes he went out to hang out with young people…they went and fight outside maybe.’ When asked about reports that the Applicant had acted violently or aggressively towards her,[51] the witness responded: ‘He doesn’t do bad things to me.’ When asked how often she spoke to the Applicant since his imprisonment, the witness responded: ‘We don’t talk much. He can’t call me in prison, and I can’t call him.’
[51] Exhibit R2, 26 [21]; 43 [58].
When asked what she intended to convey by her reference to the Applicant’s experiences in South Sudan, the witness said he ‘lost his parents because of the war.’ When asked how his parents died, the witness responded: ‘a bomb, they bombed people.’ When asked if she or the Applicant had seen this, the witness said they had not. She could not recall how old the Applicant was when he came to live with her in South Sudan. When asked about the claim that her husband was a rebel like the Applicant’s father who died in the war,[52] the witness said she previously claimed this but stated ‘my husband is alive now.' She said her husband was the Applicant’s paternal uncle and she had been told he was alive and living in South Sudan. When asked if she has any other relatives in South Sudan, the witness responded: ‘my sisters.’
[52] Exhibit R1, 123 [3].
When asked about the reference to her having a ‘new partner’ and three more children after arrival in Australia,[53] the witness said she never had a husband or partner live with her in Australia but does have six children. Three are adults between 18 and 25 years of age, while three others are minors between 8 and 16 years of age. She said the Applicant had only met the 16-year-old child ‘for a short time’ before and they ‘sometimes’ spoke on the telephone but had not met her other two minor children. She believed that two of her adult daughters would help support the Applicant in Perth, one of whom will graduate as a nurse and the other is ‘studying rehabilitation.’ She thought the daughter studying rehabilitation could assist the Applicant despite previous rehabilitative efforts failing. There were no corroborating statements in evidence from the witnesses’ two daughters.
[53] Ibid, [5].
When asked how many children the Applicant has, the witness said he has ‘one here in Perth, and another kid in Melbourne.’ She could not specifically recall the child’s name in Melbourne or how old the child was.
The witness said if he released, the Applicant would live with her in Perth and she did not think he would commit more offences because ‘he’s grown up now and is a good person.’
TRIBUNAL CONSIDERATION OF EVIDENCE
The Applicant did not present as a witness of particular credit. The Tribunal is particularly concerned that he repudiated some past claims in a signed statement dated January 2020, in material presented on his behalf by the RILC, and which was recorded in a comprehensive psychologist’s report prepared for the court. This included claims about the death of his parents and siblings, and service as a child soldier. The Tribunal considers the Applicant’s submission, that others misunderstood him when recording his claims, to be implausible. Given the very specific nature of the claims recorded, which have been maintained by the Applicant for a significant period of time without correction, it is considered more probable than not that the authors recorded what he told them. For example, the Applicant’s past claims about the circumstances of his parent’s death, and what he did after they died follow:
(a)In a signed statement he previously claimed that his father was a ‘rebel soldier,’[54] and his mother and brothers were killed after a ‘bomb dropped on our house.’[55] In a detailed report prepared by a senior psychologist in July 2019, it was instead claimed that:
Mr Chol witnessed the murder of his mother, father and three younger siblings (two brothers and a sister) at the hands of the North Sudanese military when he was seven years of age.[56]
(b)At the present hearing the Applicant stated he did not witness the death of his parents and does not know if they are alive, dead, or missing. He claimed to have last seen them when he was approximately seven years of age, and that others had since told him his father had died; and
(c)The Applicant’s claims about what he did after his parent’s death is similarly inconsistent. In his latest statement dated 15 February 2021 he claimed that he lived in South Sudan with his aunt and her three children from the age of seven until they entered Kakuma Refugee Camp when he was eleven or twelve years of age. No reference is made in this statement to the Applicant being a child soldier. In the Applicant’s signed statement dated January 2020, prepared by the RILC, he claimed to have avoided being ‘taken away by the Army to be a child soldier’ because his uncle gave his own older son to the Army instead:
I lived with my aunty and her children since the age of 7 in Malakal. Life was very hard at that time because of the war. One of my cousins, [name redacted], was 13 when he was taken away by the army to be a child soldier. The soldiers told my uncle if he didn't agree with their decision to take [his son] then they would take me as well. I was much younger. My uncle gave his permission and they took his son. We heard that he died about 2 years later, killed in the conflict.[57]
[54] Ibid, 123 [3]; 202.
[55] Ibid, 124 [15].
[56] Exhibit R2, 31 [33].
[57] Exhibit R1, 124 [12].

In a report for prepared by a psychologist in July 2019, the following was recorded:
At the age of approximately ten-years-old, recruited by a elder cousin, Mr Chol described returning to South Sudan to join a group of rebels where he then spent an unknown period (perhaps up to four years) as a child soldier. He described living in the bushes, experiencing strong levels of anger, being trained to kill people, which he did, and using drugs. Mr Chol described his drug use to include Cannabis and Heroin; Mr Chol described Heroin being injected into him without knowledge of what the drug was. He described becoming aware of this later when he returned to using Heroin in Australia. Mr Chol described a pivotal moment in his life whereby he decided against harming those he perceived to be innocent and migrated back to Kenya, where a short time was spent before, aged 14-years-old, he migrated with his aunt and her family to Australia (sponsored by an Aunt who already lived here) in 2003.[58]
(Errors in original).
[58] Exhibit R2, 32 [34].
At the present hearing, the Applicant said that neither he nor any cousins previously served as child soldiers.
The Applicant’s past evidence includes claims that he has between two and five biological children. He has also previously claimed that he knows no one in South Sudan, which is inconsistent with his oral evidence and that of his aunt at the present hearing. It was also not to the Applicant’s credit that he repeatedly invoked self-defence or attempted to blame others for his violent conduct, which is not supported by the Court’s remarks, police reports, or custodial records. Other aspects of his evidence were at times evasive and contradictory. For example, he claimed that inconsistencies in his evidence arose in part from his inability to read or write in any language. Yet during a Telephone Directions Hearing he requested and recorded the Tribunal’s Melbourne telephone number into his mobile device and read it back to the Tribunal to ensure its accuracy. On another occasion he claimed to be communicating via Facebook with a person he met while imprisoned but who now resides in South Sudan. When asked how this was possible if he could not read or write, the Applicant claimed someone else wrote his responses. When asked for details of his Facebook account, the Applicant claimed his ‘Facebook was now off.’ The Tribunal makes no finding regarding the extent to which the Applicant may be able to read or write but does not accept he has no ability to do so.
Given the inconsistencies and other concerns expressed above, he Tribunal has decided to treat the Applicant’s evidence with considerable caution.
PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
Clause 13.1 of the Direction states:
(1) When considering protection of the Australian community, decision-makers should have regard to the principle 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. 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. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2) Decision-makers should also give consideration to:
a) The nature and seriousness of the non-citizen’s conduct to date; and
b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Tribunal consideration: The nature and seriousness of the conduct
Clause 13.1.1(1) sets out factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other conduct to date. Decision-makers must have regard to factors including:
a)    The principle that, without limiting the range of offences that may be considered serious, violent and / or sexual crimes are viewed seriously.
b)    The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)    The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d)    Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e)    The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f)     The cumulative effect of repeated offending;
g)    Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h)    Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
i) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.
The Applicant has multiple convictions for offences involving violence, the threat of violence, or possession of weapons. He has also been found guilty of multiple breaches of conditional liberty, drug, dishonesty, public nuisance, and driving offences.
There are no sentencing remarks for the Applicant’s most recent offending, namely the stabbing of a cellmate, which was summarised in a Report for the Court by a senior psychologist as follows:
Mr Chol spoke in a seemingly candid manner regarding his 2018 conviction for Recklessly Cause Serious Injury. He described being involved in trafficking and selling of drugs and cigarettes while at LCC and that the victim had bought drugs from him but delayed payment. Mr Chol discussed becoming aware that the victim had repaid his debts to another prisoner prior to Mr Chol with Mr Chol believing that the debt the victim owed him was of priority. Mr Chol discussed this triggering feelings of disrespect and that to address this he confronted the victim, requesting payment. This conversation compounded his feelings of being disrespected as he perceived the victim to be “acting up” (in a superior manner to Mr Chol). Mr Chol described retrieving a weapon from prison acquaintances in response to this, initially believing he could resolve the conflict with conversation. Upon returning to the cell with a weapon, Mr Chol discussed stabbing the victim and then, with the belief that he was “going to get done for it”, he stabbed him “some more….”to finish the job”. No remorse or empathy was evident in Mr Chol’s reflections on his actions. Rather, it appeared that they were a logical consequence of the prison politics the victim had involved himself in.[59]
(Emphasis added).
[59] Exhibit R2, 23.
Key aspects of the Applicant’s 2012 offending in the suburban shopping mall were summarised by Judge Grant during sentencing on 3 July 2015:[60]
[60] Exhibit R1, 42–48 [3]–[25].
3Briefly, at about 6 pm on 23 April 2012 you attended the…mall…with a number of friends. The victim…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 back through the mall and had a conversation with two 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.
4You 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 ten 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.
5The 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 eyelids;
·Reduced movement to both eyes;
·Tenderness to the right lower ribs;
·Abrasions to both knees.
6The victim spent 12 days in hospital and underwent surgery to repair the fractures.
7I 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.
8Mr 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 denunciation are all highly relevant sentencing considerations.
9You have admitted a number of prior convictions. In late 2010 you appeared in the Magistrates' Court on two separate occasions on charges of possess drug. The first time it was cannabis, the second time heroin. In September 2011 you appeared in the Magistrates' Court on a number of charges including two counts of robbery and one count of make threat to kill. You were sentenced to 12 months gaol with a minimum term of four months before you would be eligible for release on parole. You were released on parole on 19 January 2012. It seems that you failed to report to the office of Corrections, as required, and your parole was cancelled on 25 January 2012. You were again released on parole on 2 April 2012. The parole was cancelled on 9 May 2012. The offence before me occurred whilst you were on parole. This fact aggravates the offending. You were released from prison on 12 September 2012.
10You also have relevant subsequent offences. On 5 March 2013 you appeared at the Sunshine Magistrates' Court for offences that included robbery and threat to inflict serious injury. You were placed on an 18 month community corrections order with a number of conditions that were designed to support your rehabilitation. You breached the order by committing further offences. You were remanded in custody on 9 January 2014.
11On 17 February 2014 you appeared at the Broadmeadows Magistrates' Court for a large number of offences including threat to kill, assault with a weapon, assault to prevent lawful detention, and prohibited person possessing a firearm. You were sentenced to an aggregate term of eight months' imprisonment. The breach of the community corrections order was also dealt with. The order was cancelled and you were sentenced to four months' imprisonment, to be served cumulatively upon the eight month sentence. This made a total effective sentence of 12 months, and the magistrate ordered that you serve a minimum term of five months before you would be eligible for release on parole. There was a declaration of 50 days pre-sentence detention. You were not released on parole. You were released upon the completion of your sentence on 28 December 2014.
12Because of this history, specific deterrence and protection of the community are relevant sentencing considerations. Your prior criminal history, together with your personal circumstances - which I will discuss more fully in a moment - also explain why I regard you as a poor prospect for rehabilitation. Past attempts to support you on a community corrections order, and on parole, have not been successful. Dr Glowinski from Forensicare states in his report that there is little to suggest that you have developed the capacity to change your pattern of behaviour.
...
15Given your personal history, it is perhaps not surprising that alcohol abuse and drug abuse have been significant problems in your life. You have also had some involvement with mental health services.
16Mr Chol, I am satisfied that you have come from circumstances of great deprivation and disadvantage. There must be some moderation of the principles of deterrence and denunciation to reflect the very great hardship you suffered during your formative years. On the other hand, the hardship you have suffered has left you with a propensity to behave violently towards others. It has been a feature in a number of your court appearances. This means that I must give appropriate weight in sentencing to the principle of community protection.
17I ordered a report from Forensicare. Dr Glowinski assessed you and provided a report in which he opined that you are suffering a significant personality disorder, polysubstance abuse and dependence disorder, and a long standing post-traumatic stress disorder. He says this about your offending behaviour:
"To my mind there seems no suggestion of causal nexus between his potential psychiatric diagnosis and his actions on that day. Rather, it seems that his inhibitions were lowered by sleep deprivation and intoxication with ice and alcohol, in combination with being upset with the victim's behaviour towards his friend. His behaviour during this incident seems in keeping with his described moral code of showing strength to avoid being victimised."
…
21Finally, on the issue of delay I note that you failed to appear at the County Court on 29 January 2015, and a warrant was issued for your arrest. The warrant was executed on 10 March 2015, and you have been in custody on remand since that date.
22It is to your credit that you have pleaded guilty to the charge. Although the plea has come very late in the day, it is an acceptance by you of your responsibility. Because no committal was held in this matter, the victim has never had to undergo the ordeal of giving evidence and being cross examined. He has not had to relive, in the witness box, the horror of that night. In addition, your plea has saved the community the cost and expense associated with a criminal trial. You will be given credit for all these matters.
23I am unable to accede to your counsel's submission that I deal with you by the imposition of an imprisonment term of up to two years followed by a community corrections order. The offending is far too serious for such an order.
24Mr Chol; you will be convicted and sentenced to be imprisoned for a period of four years and nine months. I fix a minimum term of three years and three months before you will be eligible for release on parole….
25Had you pleaded not guilty and been found guilty after trial, I would have sentenced you to six years and six months with a minimum of five years.
(Emphasis added).
A Victim Impact Statement provided to the Court dated 2015 elaborated on the adverse consequences the victim continued to experience. This included past and planned surgeries, a metal plate in his face, continuing pain, visual impairment, inability to work, fear of going out in public, reduced socialising, sleep problems, and psychological impacts.[61]
[61] Exhibit R2, 129–145.
In refusing the Applicant leave to appeal the severity of his sentence, the Court of Appeal assessed the gravity of the Applicant’s offending by reference to Nash v The Queen (Nash).[62] Their Honours noted the persistence of the Applicant’s violent assault and ‘determination to cause serious injury,’ which made his culpability ‘very serious indeed.’[63] Their Honours further noted:
[62] (2013) 40 VR 134, 137 [10] (Maxwell J).
[63] Exhibit R1, 51 [4].
9In Nash, the Court concluded that a sentence of seven years’ imprisonment for ICSI,[64] on a plea of guilty by a person with no relevant prior convictions, was not manifestly excessive. In the present case, by contrast, the applicant did have relevant prior convictions — for assault, assault police and threat to kill. Moreover, as the judge found, he has ‘a propensity to behave violently towards others’. His counsel did not challenge this finding but submitted that the judge had given too much weight to it. That contention can only be assessed, of course, by examining the sentence itself.
[64] Intentionally Cause Serious Injury.
10Two 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. (That is the issue raised by proposed ground 1.)
11Secondly, the applicant was under the influence of the drug ‘ice’ when he committed this offence. As recorded in the report provided to the sentencing court by Dr Glowinski of Forensicare, the applicant had told him that he:
had been using ‘too much ice’ in the days and hours leading up to the index offence. He said that he had been up for three days straight and had been smoking ice all night before and the day prior to the index offence. He could not estimate how much he had ingested. He said that he had also been drinking alcohol in large quantities as he found it difficult to get drunk whilst using ice.
12Dr Glowinski’s report also recorded the applicant as saying that he had used ice, heroin and cannabis since his arrival in Melbourne in 2010:
over recent years he has been using ice intravenously on an almost daily basis. He said that he uses generally as much as he can get, maybe about a gram per day.
…
[The applicant] told me that he has used heroin on a regular basis intravenously, about 0.5gms most nights. He said that he uses heroin to put himself to sleep after a long ice binge.
…
[The applicant] told me that he would spend all of his money on the drugs and when he ran out of money and drugs, he would commit offences so as he could use again.
13The conclusion of the expert report was in these terms:
[The applicant] acknowledges that he was using ice and other substances in significant quantities in the lead-up to the offence. He recalls approaching the victim to discuss matters concerning his female friend. He recalls being attacked and then defending himself. He partly acknowledges the excessive nature of his defence but justifies this by citing his traumatic background . To my mind there seems no suggestion of a causal nexus between his potential psychiatric diagnosis and his actions on the day. Rather it seems that his inhibitions were lowered by sleep deprivation, intoxication with ice and alcohol, in combination with being upset with the victim’s behaviour towards his friend. His behaviour during this incident seems in keeping with his described moral code of showing strength to avoid being victimised.
14On the basis of this evidence, it could safely be concluded that the offending was the direct result of the applicant’s ingestion of the drug. In a case such as this, where the offender is a habitual user of the drug in question, considerations of specific deterrence, community protection and general deterrence are necessarily of particular importance in sentencing. (An offender’s prior knowledge of the adverse effects of intoxication can aggravate the seriousness of an offence committed while intoxicated, but no such argument was advanced by the prosecution in the present case.)
…
25Nothing in any of the decisions referred to suggests that the sentence imposed on the applicant was outside the range reasonably open to the judge in the circumstances of this case, proper weight being given to all relevant factors. On the contrary, given the objective seriousness of the offending, the sentence must be regarded as lenient, notwithstanding the matters which could be relied on in mitigation.[65]
(Footnotes removed.)
[65] Exhibit R1, 53–53 [9]–[14], 58 [25].
Tribunal findings: The nature and seriousness of the conduct

Given the references in evidence to the Applicant’s past trauma as a child in South Sudan, the ‘potential psychiatric diagnosis’ referred to during sentencing, and references to the Applicant’s past ‘involvement with mental health services,’[242] there may be risks to his mental health if returned. That is again speculative given the Applicant’s changed evidence about the sources of his childhood trauma. There is insufficient evidence to make a reliable finding in this regard, particularly in circumstances where there is limited expert evidence about the Applicant’s current health status and medications. Moreover, the evidence discloses that his past compliance with treatment has also been an issue. If his health did deteriorate, there is no evidence he would be treated any differently to other citizens in accessing medical services. It is acknowledged the nature of medical services in South Sudan is likely to be of a much lesser standard than in Australia, which is something that confronts the population generally rather than the Applicant personally.
[242] Exhibit R1, 45–46 [15], [17].
Legal implications
In terms of the legal implications of an adverse decision in this matter, the mandatory cancellation of the Applicant’s visa meant he became an unlawful non-citizen within the meaning of s 14 of the Act. In the event of non-revocation, he would continue to be detained under s 189 of the Act, and is liable for removal as soon as reasonably practicable, irrespective of Australia’s non-refoulement obligations: ss 197C and 198 of the Act. It is permissible to continue a person’s detention while consideration is given to the possible exercise of a non-compellable discretion at s 195A of the Act to grant a visa,[243] or to make a residence determination under s 197AB. There is no evidence, however, that any exercise of this discretion is currently in prospect.
[243] Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219; Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 at 191 [16].
Protection visa and indefinite detention
If the Applicant applied for a Protection Visa, which seems a logical inference from the fears of harm he expresses, an updated assessment would be conducted of the current situation in South Sudan and the Applicant’s claims more comprehensively considered. In this event a non-revocation decision does not result in removal or indefinite detention. While the results of a Protection Visa application cannot be speculated upon, the Tribunal notes the Minister’s Department is compelled to assess non-refoulement claims in compliance with Direction No 75 – Refusal of Protection visas Relying on Section 36(1C) and Section 36(2C)(b) (Direction 75). Direction 75 requires that when considering an application for a Protection Visa, an assessment must first be made about whether refugee and complementary protection criteria are met before considering ineligibility criteria. It is not possible to speculate on what rights the Applicant will choose to exercise, or the subsequent course of decision-making, but it is these future events and not a decision in the present matter, on which the Applicant’s time in immigration detention contingently relies. As Snaden J held in DFTD v Minister for Home Affairs [2020] FCA 859 at [42]:
The mere possibility of prolonged immigration detention is not a circumstance of which the subject matter, scope and/or purpose of the legislative scheme require, by implication, that a decision maker take account when exercising (or not exercising) the power conferred by s 501CA(4) of the Act.
In DOB18[244] at [35], Griffiths J cautioned against speculating about the course of future decision-making:
…Justice Flick’s reasoning in Ali was adopted and applied by Logan J in Greene [v Assistant Minister for Home Affairs [2018] FCA 919] at [19] and by Farrell J in Turay[v Assistant Minister for Home Affairs [2018] FCA 1487] at [40]…Contrary to the applicant’s submissions, I do not consider that the reasoning in this trio of cases is plainly wrong. Indeed, I consider that it is plainly correct. In my respectful view, it properly recognises the importance of the different stages of decision-making under the Act and the need to avoid speculation as to what might or might not occur in future decision-making.
(Emphasis added)
[244] DOB18 v Minister for Home Affairs [2018] FCA 1523 at 17 [35] (DOB18).
Risk of refoulement
There is no evidence that a Protection Visa applicant, or someone found to be owed non-refoulement obligations, would be refouled in breach of Australia’s express policy commitment not to do so. The Tribunal is satisfied that any risk of refoulement is minimised by the Australian Government’s express policy commitment not to do so. Were someone to be refouled contrary to that commitment, negative consequences arise for Australia’s international reputation as a party to the various Conventions, Protocols, Covenants, and other obligations under customary international law.
On the available evidence the Tribunal is unable to make a reliable finding about whether the Applicant is owed non-refoulement obligations. On an admittedly speculative reading of the available evidence, this consideration weighs somewhat in favour of revocation.
Tribunal consideration: Strength, nature and duration of ties
Clause 14.2(1) of the Direction states:
Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non‑citizen has arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of
non-revocation on the non‑citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Applicant has lived in Australia since he was 14 years of age. His offending began soon after arriving in Australia when he was still a juvenile and has continued throughout his adult life. He refers to periods of work after leaving school, none of which is corroborated. The Tribunal also notes the Applicant appeared in courts charged with multiple crimes during these claimed periods of work. In a report by a psychologist, the following is stated about the Applicant’s work history:
Mr Chol also spent approximately two years living in Adelaide and while there described becoming involved in a physical fight at work to support a friend who had begun fighting with those in management. Mr Chol described this as a fight involving numerous individuals and that he lost his job as a result.
…
History of Problems with Employment.
Mr Chol has a history of problems with employment. He has been unemployed for significant periods and had difficulties within work environments (including dealing drugs and using violence against supervisors). It was also noted, however, that Mr Chol has also held positions of employment for periods of up to two years and expressed an enjoyment of work. A good work ethic has also been observed while incarcerated, and periods of employment appear to correlate with periods whereby Mr Chol has desisted from substance abuse and desisted, in varying degrees, from offending (i.e. in South Australia). The assessed risk lies in Mr Chol’s increased spare time and lack of purpose when unemployed (increased time for exposure to anti-social peers, unlawful activity and substance abuse), that unemployment appears to coincide with increased substance abuse and that Mr Chol then offends more to finance his substance abuse. While such offending is often acquisitive in nature, this increases his risk of violence during the execution of such offending.[245]
[245] Exhibit R2, 26 [21], 58 [94].
In terms of his contribution to Australia, the Applicant claimed to have undertaken community work and ‘volunteer work for African Sudanese youth taking kids camping and supporting them in the community.’[246] There is no evidence from any organisations or recipients of this volunteering. The Applicant’s evidence during the hearing was that the community work he did was court-ordered.
[246] Exhibit R1, 83.
In terms of the Applicant’s ties in Australia, the evidence refers to the following relatives:
(a)An aunt under whose sponsorship he came to Australia, who lives in Western Australia. The Applicant said her husband died in Sudan and she subsequently re-partnered after arriving in Australia, and had three further children with her new partner.[247] His aunt said in her oral evidence, however, that her husband did not die in South Sudan and she did not re-partner in Australia, but now has six children. The Applicant referred in his evidence to his aunt as ‘like a mother’ to him. He is recorded as stating during an interview in October 2019, however, that he ‘lost contact’ with his aunt after imprisonment in 2015.[248] In his latest statement he claimed to be ‘in regular contact’ with his aunt.[249] His aunt’s oral evidence is that contact between them has been infrequent at best;
(b)An uncle (his father’s youngest brother), who accompanied the Applicant to Australia, lives in Western Australia with other family members, whose composition was not disclosed.[250] The Applicant claimed his uncle is a community leader in Perth and has encouraged him to return.[251] In his most recent statement, the Applicant stated his uncle ‘keeps in touch’ with him and has referred to support in Perth from the South Sudanese community.[252] There is no statement from the Applicant’s uncle;
(c)In a report compiled by a psychologist in July 2019, the following is stated about the Applicant’s past relationship with his aunt and uncle in Perth:
Mr Chol’s self-report indicated that he had been involved in further violence in both Perth and Adelaide…In Perth, this included using a sword to attack his uncle in response to being verbally abused and using a knife toward his aunt after she refused to give him money.[253]
(d)The Applicant claimed to have been in a de facto relationship with his current partner, SS, since July 2006.[254] He claimed to have ‘always lived’ with SS ‘except for the times’ he was imprisoned.[255] This is inconsistent with evidence two pages on, in which the Applicant explains his offending in part as a result of being separated from SS.[256] He then claimed to have reconciled with her.[257] The Applicant’s oral evidence at the current hearing is that he and SS had a fight about two months ago and there has since been no contact between them. The Tribunal notes evidence about the Applicant making threats of violence to SS, which resulted in her moving to a refuge with her child.[258] The Applicant’s oral evidence is that SS and their child would relocate to Perth to live with him once he is in work and has independent accommodation. There is no statement from SS before the Tribunal;
(e)The Applicant’s evidence refers to him having ten cousins in Australia.[259] There are no statements from these relatives. In a report from a psychologist dated July 2019, the following is stated about the Applicant’s relationship with some cousins:
Mr Chol also spoke of fearing his violent capabilities and highlighted two main concerns for the future: staying alive and not killing someone. In relation to the victim of the 2012 offending and his extended family (specifically, his cousin), Mr Chol spoke of not knowing what he would do if he saw either of them in the future, indicating the potential for violent behaviour.[260]
[247] Ibid, 123 [5].
[248] Ibid, 196.
[249] Exhibit A1, 1 [7].
[250] Exhibit R1, 123 [6].
[251] Ibid, 123 [6].
[252] Exhibit A1, 2 [10].
[253] Exhibit R1, 167.
[254] Ibid, 77–78, 196.
[255] Ibid, 80.
[256] Ibid, 82.
[257] Ibid.
[258] Ibid, 168.
[259] Ibid, 228.
[260] Exhibit R2, 24–25.
The Applicant stated the following in terms of the effect on his removal on relatives:
I know my aunty and her new partner and my cousins would be very sad if I had to go back to South Sudan…I grew up with them from the age of 7. My family travelled to Melbourne from Perth 4 times to visit me in jail because they want to support me. My aunty worries about me a lot.[261]
[261] Exhibit R1, 124 [11].
This claim is inconsistent with his aunt’s evidence that she does not have a new partner. Apart from the Applicant’s aunt, there are no statements in evidence from other relatives.
In an interview record after entering immigration detention in October 2019, reference is made to the Applicant having a child support debt exceeding $20,000. His oral evidence is that he was recently asked to pay down $4,000 of the debt but was unable to. There is no other evidence to corroborate the extent of any child support debt owed by the Applicant.
Tribunal findings: Strength, nature and duration of ties
Less weight is placed on this consideration in circumstances where the Applicant’s offending commenced soon after he arrived in Australia and while still a juvenile. He has continued to reoffend throughout his adult life.
The Applicant’s ties in Australia are relatively weak and the contribution he has made overwhelmingly negative. If his evidence about the child support debt is accepted, he also appears to have done little to financially support the children whose interests he invokes. The Applicant’s work history is intermittent and includes losing a job in South Australia because of fighting. In the absence of any corroboration about work or volunteering in Australia, very little weight is placed on the Applicant’s claimed positive contributions.
In the absence of any evidence from former partners or the relatives he claims to be close to in Australia, very little weight can be placed on the Applicant’s uncorroborated claims. That is particularly so given it is not known if the people he refers to are Australian citizens, permanent residents or otherwise have a right to remain in Australia indefinitely. The Tribunal is concerned about the inconsistent nature of the Applicant’s claims about when his de facto relationship commenced, reported violence against previous romantic partners, and what seems to be an at times difficult relationship with his aunt in Perth.
The Tribunal finds on balance, however, and notwithstanding the very limited ties disclosed by the evidence, that what ties the Applicant has are in Australia. On balance, this consideration weighs moderately in favour of revocation.
Impact on Australian business interests
Clause 14.3(1) of the Direction states:
Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There is no evidence that any work previously undertaken by the Applicant enlivens this consideration. Neither party submitted this consideration is relevant and the Tribunal places no weight on it.
Impact on victims
Clause 14.4(1), of the Direction states:
Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
The Federal Court has previously held that this consideration ‘requires a particular focus upon the consequences of the exercise of discretion to grant a visa with the result that the applicant will remain in Australia,’ where that information is available.[262] Neither party claimed this consideration is relevant and the Tribunal places no weight on it.
[262] HVLC v Minister for Home Affairs [2019] FCA 616, 7 [13] (Colvin J). Perram J has recently dealt with this issue in Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646.
Tribunal consideration: Extent of impediments if removed
Clause 14.5(1) of the Direction states that:
The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) The non-citizen’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.
In his 2012 Personal Circumstances Form the Applicant stated he was hospitalised for four months in 2010 due to ‘Depression Mood Swings’ and took ‘Zyprexa 50mg’ as treatment.[263] Reference is made in other expert evidence to the Applicant exhibiting drug-induced psychosis during this time.[264] During sentencing in 2015 the Court heard expert evidence about a ‘potential psychiatric diagnosis’ of ‘personality disorder, polysubstance abuse and dependence disorder, and a long standing post-traumatic stress disorder.’[265] In his 2017 Personal Circumstances Form the Applicant stated he is prescribed Evanza for depression and PTSD.[266] In a statement dated January 2020, the Applicant claimed he was still taking medication for PTSD and had seen a psychologist for ‘support and counselling’ during the past three years.[267] In his latest February 2021 statement, the Applicant stated he was diagnosed with PTSD and takes ‘medications to help manage…depression/anxiety.’[268] In his oral evidence the Applicant said he took Methadone daily, an unnamed medication for depression, and occasional Panadol, but claimed there was no medical or psychological impediment to him immediately returning to work. No expert evidence was provided to corroborate the Applicant’s current mental health status or any medications he is currently taking, or a purported recent 20 ml reduction in his daily Methadone dose.
[263] Exhibit R1, 227.
[264] Exhibit R2, 40 [51].
[265] Exhibit R1, 46 [17]–[18].
[266] Ibid, 84.
[267] Ibid, 126 [23]–[27].
[268] Exhibit A1, [15].
The Applicant has submitted that key impediments to removal were:
Having no money and no family support. Not knowing anyone…I honestly believe that I would have no chance of a decent life if I were to be deported….[269]
[269] Exhibit R1, 85.
It was submitted by the RILC on the Applicant’s behalf that:
If Mr Chol is returned to South Sudan, he will be returned to a country in severe conflict. He will be isolated from his central supports – namely his family. He will be returned to a place where he has experienced significant trauma and in which he has limited prospects and social connections. He will face poverty and hardship and will struggle to subsist.[270]
[270] Ibid, 115.
A psychologist noted in July 2019 that if the Applicant had to leave Australia, the risk of him ‘utilising factors such as substance abuse and the use of violence to regulate his emotional response escalates.’[271]
[271] Exhibit R2, 82 [154].
Tribunal findings: Extent of impediments if removed
The Applicant is relatively young, has some history of work, has undertaken several vocational courses while in custody, and has a reasonable grasp of English. This may have enhanced his future capacity for work. There are no apparent language or cultural impediments to removal given that he speaks Dinka, Arabic and claims past involvement with the South Sudanese community in Australia. There is no evidence the Applicant could count on any support from a paternal uncle, his aunt’s sisters, or a friend that has returned to South Sudan; whose existence was only disclosed in oral evidence at the present hearing. There is also no evidence the Applicant could not count on remittances from any relatives or friends in Australia.

The Tribunal accepts the Applicant has suffered mental health symptoms and conditions in the past, including from drug-induced psychosis. The Tribunal acknowledges the reference in a July 2019 report by a psychologist that the Applicant was prescribed anti-psychotic and mood-management medication following imprisonment in 2015.[272] There is no corroboration about how long he took this medication for, or what is currently prescribed, but the Tribunal acknowledges the evidence that his overall engagement and compliance with counselling and treatment in the past has been poor.[273] The Tribunal accepts the Applicant’s unchallenged evidence at the present hearing that he takes Methadone daily, an unnamed anti-depressive, and occasional Panadol.
[272] Ibid, 39 [50].
[273] Ibid, 43–44.
There is no evidence that the Applicant would not have access to the same medical and support services available to other South Sudanese citizens, although it is accepted these would be far below that available in Australia. There is a risk that if returned to South Sudan, any mental health or addiction issues the Applicant has may deteriorate, either through being unable to access Methadone or his anti-depressive medication, or by failing to comply with medications, or relapsing into substance abuse and experiencing further drug-induced psychosis. In these circumstances he might again resort to the use of violence, which may bring him to the attention of South Sudanese authorities.
On balance, the Tribunal finds the extent of impediments confronting the Applicant after living in Australia since the age of 14 are considerable. This consideration weighs very substantially in favour of revocation.
Additional considerations
No additional considerations were advanced by the parties and I have not identified any ‘other considerations’ relevant to the specific circumstances of this application, as provided for at cl 14(1) of the Direction.
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, the Applicant does not pass the character test. In determining whether there is ‘another reason’ why the mandatory cancellation of his visa should be revoked, the Tribunal has applied the considerations at Part C of the Direction to the specific circumstances of his case. The Tribunal was invited in written submissions by the RILC to afford the other considerations of International non-refoulment obligations and Extent of impediments if removed equal or greater weight than a primary consideration. Having regard for the totality of the evidence, the Tribunal does not consider it necessary to depart from the guidance at cl 8(4) of the Direction, that greater weight ‘should generally be given’ to the primary considerations than the other considerations.
The Applicant’s criminal history is very serious, particularly his persistent violence, breaches of conditional liberty, and multiple incidents of misconduct in custodial settings. He has caused significant harm to members of the community for over a decade and constitutes a high and unacceptable risk of continuing to do so. The community would expect he should not hold a visa.
Of the countervailing considerations weighing in favour of revocation, the Applicant’s non-refoulement claims were general, inconsistent and unpersuasive. He resiled from several past claims about his childhood trauma and relies predominantly on information from an unnamed fellow prisoner and detainee. Evidence during the hearing discloses that he does have some family members and a friend in South Sudan, which contrasts with his past claims, although there is no evidence that he could currently rely on these people for any practical or emotional support. It remains open to the Applicant to apply for a Protection Visa and have his claims more comprehensively assessed.
The Applicant’s claims about having five biological children were inconsistent, uncorroborated, and did not enable reliable findings to be made. It is accepted, however, that the Applicant has a continuing, albeit non-parental relationship with his aunt’s 16-year-old child.
The evidence discloses that the Applicant’s 17-year residence in Australia has resulted in surprisingly limited ties. Only his aunt provided a statement and oral evidence. Nevertheless, the Tribunal accepts that what ties the Applicant has are predominantly in Australia.
The Tribunal accepts the Applicant would be confronted by substantial impediments if returned to South Sudan after living in Australia since the age of 14. He would be attempting to re-establish himself in a country he last lived in as a child, where the security situation is unpredictable, and following an extended period of imprisonment and detention.
Having weighed all relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the decision to cancel the Applicant’s visa should be revoked. That is because the two primary considerations ‘Protection of the Australian community’ and ‘Expectations of the Australian community’ substantially outweigh the combined weight to be given to the primary consideration Best interests of minor children in Australia, and the relevant other considerations in this matter.
DECISION
It follows that the Tribunal affirms the decision under review.

I certify that the preceding 228 (two-hundred and twenty eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

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Associate
Dated: 15 March 2021

Dates of hearing: 4–5 March 2021

Applicant: By videoconference

Advocate for the Respondent: Mr Alex Booth

Solicitors for the Respondent: Clayton Utz

Dates of hearing:	4–5 March 2021
Applicant:	By videoconference
Advocate for the Respondent:	Mr Alex Booth
Solicitors for the Respondent:	Clayton Utz