CRBC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

CRBC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 863 (14 April 2021)
Division:GENERAL DIVISION
File Number(s): 2021/0379
Re:CRBC
APPLICANT

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

DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:14 April 2021
Place:Sydney

The reviewable decision made on 21 April 2020, being the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the cancellation of the applicant’s Offshore Humanitarian (Subclass 200) visa, is set aside. In substitution, it is decided that the mandatory cancellation decision of the applicant’s Offshore Humanitarian (Subclass 200) visa on 21 April 2020, is revoked.
..............................[SGD]..........................................
The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether another reason why the visa cancellation should be revoked – Ministerial Direction No. 79 applied – nature and seriousness of offending conduct – risk of reoffending – protection of the Australian community – best interests of minor children – expectations of the Australian community – strength, nature and duration of ties to Australia – international non-refoulement obligations – impediments to removal – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 501, 501CA
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
NBGM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 60
SECONDARY MATERIALS

Convention Relating to the Status of Refugees 1951

DFAT Country Information Report South Sudan, Department of Foreign Affairs and Trade, 5 October 2016
Direction No. 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
United Nations High Commissioner for Refugees (UNHCR), UNHCR Position on Returns to South Sudan – Update II, April 2019
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
14 April 2021
INTRODUCTION

The applicant is a male who arrived in Australia from Sudan on 5 December 2007 on an Offshore Humanitarian (Subclass 200) visa. He was 8 years’ old when he arrived in the country.
The applicant committed his first offences on 20 December 2015 at the age of 16 namely, common assault, affray and assault with intent to rob in company. His latest convictions were recorded on 21 February 2020.
Between 13 May 2016 and 15 January 2020, the applicant has been convicted of 21 offences ranging from assaults, affray, shoplifting, larceny, drug possession, resisting police in the execution of their duty, being armed with intent to comment an indictable offence and entering a vehicle without the owners’ consent. He has also breached his bail conditions and supervision orders.
Most recently, on 15 January 2020, the applicant was convicted at Parramatta Local Court of New South Wales of: shoplifting, possess prohibited drug, fail to appear in accordance with bail acknowledgement, larceny and armed w/I commit indictable offence. He pleaded guilty on all counts and was sentenced to an aggregate term of imprisonment of 15 months.
The circumstances that led to the applicant’s conviction for the offence armed with intent to commit an indictable offence are detailed in the sentencing remarks of Magistrate Hockey dated 15 January 2020 and the NSW Police Facts Sheet:
(a)Whilst subject to bail conditions and community corrections orders for other offences, the applicant “and others” approached the two victims (who were 14 and 15 years’ old at the time) at St Mary’s Railway Station and asked for items of clothing from them. The victims refused and later left and walked 100 metres away.
(b)Later on, the victims observed a small maroon vehicle with the applicant and others inside. As the victims approached the vehicle, the applicant and two others emerged holding knives. The applicant was holding a 20-centimetre, black handle knife with a silver blade “similar to a machete”. They began running after the victims making a slashing motion to cause injury to them.
(c)Coincidentally, police were patrolling the location and were flagged down by the victims. The police exited their vehicle and drew their firearms on the applicant and another person (the third person fled). They challenged the applicant to drop the knife, but he looked at police while making a slashing movement at one of the victims who was 2 metres away. The police again challenged the applicant to drop the knife and he did. The applicant and his friend were handcuffed, and a small plastic bag containing capsules of light white power was found in the applicant’s friend’s pocket. Both the applicant and his friend were placed into a “timeout” due to being under the influence of an intoxicating substance. Magistrate Hockey remarked it was “fortunate [the applicant] was not shot”.
Magistrate Hockey sentenced the applicant to 15 months’ imprisonment on an aggregate term with a non-parole period of 12 months. The applicant appealed the sentences. The appeals were dismissed but the applicant’s non-parole period was reduced from 12 months to six months
On 20 April 2020, the applicant’s visa was mandatorily cancelled under s 501(3A) of the Act. Under s 501(7)(c), a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. The applicant was invited to make representations about revoking the decision to cancel his visa.
On 30 April 2020, the applicant requested revocation of the mandatory visa cancellation and completed a Personal Circumstances form. In summary, he claimed the following:
(a)He had a “really close relationship” with his family;
(b)He would not be safe in Sudan because of the civil war;
(c)He hung around the wrong people and “was not making the right choices”; and
(d)He was a “minimal risk” of re-offending as he had now been in gaol and did not want to go back.
On 10 June 2020, the applicant was invited to make comments on the sentencing remarks made in respect of him in the Local Court and District Court of New South Wales.
On 7 July 2020, the applicant responded stating that he had seven siblings, all in Australia, and that he could not go back to the “terror of war” in Sudan.
On 10 November 2020, the applicant was invited to provide the names of his younger siblings, his interactions with them and how they would be affected if his visa was revoked.
On 31 December 2020, the applicant responded stating that: he had four younger siblings with whom he was close, but he could not remember their birthdays; his siblings needed him at home; and he was closest to his little brother.
On 5 January 2021, the Department again asked the applicant to clarify his younger siblings’ names and their years of birth but no response was ever received.
On 21 January 2021, a delegate of the Minister decided not to revoke the cancellation decision under s 501CA(4) of the Act.
On 21 January 2021, the applicant applied to the Tribunal to review the delegate’s decision. He claimed the delegate’s decision was wrong because of “non-refoulement obligations”.
THE LAW
As the parties agree that the applicant does not pass the character test set out in section 501(6) of the Act given the length of his sentence, the sole issue before the Tribunal is whether, having regard to Direction No. 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 79), there is ‘another reason’ why the mandatory cancellation decision should be revoked.
There are a number of relevant principles contained in Clause 6.3 of Direction 79 that I have considered as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on 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
(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.
Direction 79 sets out primary and other considerations that must be considered, where relevant, when deciding whether to revoke the mandatory cancellation of a visa. Primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. However, other considerations should not properly be viewed as “secondary”; in certain cases, other considerations may outweigh primary considerations.
Those primary considerations in Direction 79 are as follows:
(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.
Direction 79 also sets out other considerations that must be taken into account, which include but are not limited to:
(a)strength, nature and duration of ties to Australia;
(b)international non-refoulement obligations;
(c)extent of impediments to the applicant if removed from Australia;
(d)impact on Australian business interests; and
(e)impact on victims.
THE ISSUES
It is agreed between the parties that the applicant does not pass the character test as he has been sentenced to a term of imprisonment for an aggregate sentence of 15 months
The issue for the Tribunal’s determination is therefore whether under s501CA(4)(b)(ii) there is another reason why the original decision should be revoked, such that the Tribunal may revoke the decision pursuant to section 501CA(4) of the Act.
THE EVIDENCE
The Applicants evidence
The applicant affirmed his statement dated 24 March 2021. The applicant said that he was currently being held in immigration detention.
Under cross-examination, the applicant gave evidence that he was currently 22 years old and that he had been born in South Sudan in 1999. He arrived in Australia on 5 December 2007 along with his mother, seven siblings and his cousin. At the time of arrival he was eight years old. Prior to being sent to jail he lived with his biological aunt, whom he referred to as his “grandmother”. The applicant said that he remained close to his mother during this time, although when questioned about his mother‘s movements in and out of Australia in the period from 2011 to 2015 he said he was not really aware of his mother‘s marital situation after his father had been killed. Nor was he aware of why she had returned to Africa or exactly which countries she had visited.
When asked about his brother, CM, and his movement in and out of Australia, he said that he thought he went back to South Sudan, but he did not know why he had returned to South Sudan. The applicant was taken to his brother’s statement that said he had only been to Uganda and was questioned on the discrepancy. The applicant said that his brother was familiar with Uganda and that he had friends there. The applicant said that he had memories of his time in Uganda, but he did not have any memories of his time in South Sudan.
When questioned why he had a fear of harm if he were returned to South Sudan, the applicant said that he was fearful of the Civil War and that the same people who had killed his father were still there. He thought that Sudan was “not a nice place to be”.
If the applicant were returned to South Sudan he felt that he would be targeted because he would be recognised as someone who had returned from an overseas country, as someone who would be seen to be healthy, and someone who would look more prosperous than the locals and that he could be killed for his iPhone. On the basis of the DFAT Country information on South Sudan, it was put to the applicant that it was a different conflict taking place when he and his family left South Sudan, and that the current conflict in that country was political rather than based on ethnicity. In response to the information that the applicant as a Dinka would not be at risk in the capital city of Juba, the applicant said that he was not from Juba but from the “Rubec” region, and that there were “tribes within tribes”, and that those groups would often kill each other quite apart from any difficulties with rebels.
The applicant said that he would like to go back to South Sudan for a visit, as he would like to visit the grave of his father, but he would not want to live there. He saw it as a very dangerous place with which he had no familiarity.
When questioned as to whether his family, including his grandmother, had been to see him in Villawood or in prison the applicant said that prior to detention he had seen his family “not much”. However, he stated that he saw his little brother once or twice a month. It was pointed out that visitation had been affected by the Covid-19 pandemic and other difficulties. The applicant’s relationship with his cousins who were minors was not demonstrated to be a close one.
When questioned about his work history, the applicant said that from the age of 16 he had spent most of his time with friends drinking. He finished year 12 at the end of 2016 and then worked in the construction industry for about two weeks but said that he “got lazy” and stopped showing up. In 2018 he found further work in the construction industry, but it was difficult for him to find employment as he did not have any identity documents, primarily because of non-payment of fines. He said he could easily get a job if he had ID. If released into the community, his aim is to move to Armidale and secure work in the retail industry. When questioned on what he would do if this didn’t work out, he stated that he would also like to study at TAFE and “do the right thing by God”.
When questioned about his offending, the applicant said that he had started hanging around with the wrong people. He had committed his first offence, a robbery at a train station, in December 2016. He said that he really wanted to fit in with the group. He said that now he really wanted to change and that he was very remorseful in relation to his behaviour. He said he was afraid of the police, and under cross-examination tended to blame others and the police for his conviction. The applicant’s attention was drawn to his statement of 24 March 2021, where he said he started to commit crimes out of desperation because he had no money. In relation to his shoplifting offences, he stated that if he had the money at the time “would have paid for them.”
The applicant said that he now had the motivation to change his behaviour. He now feels more connected to God and wants to get to heaven. He said he had been praying a lot lately and there was a further incentive to reform in that he had met a girl that he really wanted to impress.
The applicant admitted to making false statements in relation to his mental health whilst he was in prison in order to secure preferential treatment from the prison staff. He acknowledged that the behaviour towards the victims during his more violent offences would have been very frightening to them.
Since he has been in Villawood, the applicant said that he has started to think about his behaviour and to plan for his future. He said he had changed his attitude from the period when he was detained at the Wellington Corrections Centre, when he was described as having no remorse, no victim empathy, minimising his behaviour, and committing offences that were pre-meditated.
The applicant said he really started to realise the seriousness of his offences once it became apparent that he might lose the right to remain in Australia. He said that he would never engage in such behaviour again. The applicant disclosed that he had received some treatment in relation to depression and anxiety, but he had discontinued taking his medication. There was no other diagnosis of mental health issues or treatment for such issues. There was concern as to the effect on the applicant’s mental health from being detained for long periods at Villawood and it was noted that he denied any thoughts of self-harm and said they had only been used to try and get an advantage in relation to his treatment while in detention. He said he would not commit suicide. The applicant confirmed that if he is released into the community it is his intention to pay his fines, to get proper identity documents and to get a decent job. He also planned to be baptised and to give up his bad behaviours. He had made friends at his church group and said that he did not intend to go back to his former group of friends.
Evidence of LM
LM gave evidence that he was a cousin of the applicant. He affirmed his statement of March 2021.
LM gave evidence that a family member who returned to South Sudan was murdered in 2020, although he was unable to give details in relation to the murder, other than that his cousin was murdered because his body structure and language identified him as Dinka. He said that the applicant would be in danger if he were to return to South Sudan, especially as he had no family there. In LM’s opinion, the applicant would be in danger as a Dinka man if he were to return to South Sudan. He felt that he would not be safe in the capital city of Juba, even though there is a Dinka government there. He said there was danger from different subgroups within the Dinka Community as well as from other tribes.
LM said that he had experienced similar problems to the applicant, including recently having been in detention. LM said that he made a conscious decision that if he was given another chance, he would become a productive member of the Australian community and that he would not reoffend. To date he has not reoffended and has been working in the retail industry in Armidale. In LM’s opinion, the applicant would also become a productive member of the Australian community if given another chance. He thought that the applicant was already trying to change and that he understood the harm he had done to his victims and his family.

Under cross-examination, LM said that he did not know why details of his cousin’s murder were not included in his statement. He said he was not sure of the date of his cousin’s death and he was also not sure of his name. He said the victim was a cousin by blood but he did not know him. Before the cousin’s murder and return to South Sudan, he said that his cousin had been living in a refugee camp in Uganda. He did not know where or why he was killed. He said he had been told about his death by family and friends.
LM said he had not previously been close to the applicant who is his nephew, but says that he has reconnected with him while he has been in detention. Prior to that, he had last seen the applicant in 2012 and had no contact with him during the period of the applicant’s offending between 2016 and 2020. LM did not think anyone in the applicant’s family was aware of what the applicant was doing at the time of his offending.
In LM’s opinion, the applicant has changed and recognised the seriousness of his actions and accepted responsibility for them. In his opinion, the applicant is truly remorseful and embarrassed by the shame he has brought upon his family. He said that in his judgement, the applicant now has dreams for a brighter future. LM told the Tribunal that he was currently gainfully employed in the retail industry in Armidale, and that his employer was willing to also give the applicant a job.
Under cross-examination, LM conceded that he had not told his boss about the full extent of the applicant’s offending.
LM said that he was happy for the applicant to live with him and his partner, but that he would have to abide by his rules, which would include no alcohol and no drugs. If the applicant did not comply, LM said that he would go to the police even if that might result in the applicant being returned to South Sudan.
Evidence of CM
CM gave evidence that he is the brother of the applicant and is currently employed as a recycling worker. He works long hours – about 5:45 am to 2:45 pm every day. He affirmed his statement of 23 March 2021. He said that he had prepared the statement by himself. He lives with the applicant’s aunty, who the applicant refers to as his “grandmother”. He said that there were four adult people in the house and three children.
CM gave evidence that he had visited Africa several times in recent years. He said that his trips to Africa had been to visit Uganda, although on one occasion he had walked across the border into Sudan in order to renew his Visa. He had simply walked in and out. He said that the applicant had sent him a small sum of money to assist him whilst he was in Uganda. At that time the applicant was still at school.
CM said that if the applicant were returned to South Sudan he would not survive. He said it was “dangerous” and there was “a lot happening there”
Evidence of ER
ER is the applicant’s biological aunt but he refers to her as his grandmother. She said that the applicant went to live with her when he was about 10 years old after her children had left home. She said that the applicant was her “favourite” and that he helped her a lot with domestic chores. She wanted him to come back to live with her.
She said that the applicant’s mother had not remarried after her husband had been killed. She was not sure why her sister went back to Uganda in between 2011 and 2015. She said she had not asked her about the purpose of her trips. ER said that she did not read or write or understand English. She admitted that she had had assistance in preparing her statement from her children and the applicant’s lawyer, but she said it was her own words. She said that she was not aware of the applicant’s offending nor of the fact that he was drinking until he telephoned her from jail to tell her what had happened. She thought he was “a good boy”. In her opinion, the applicant was close to a number of his young nephews and nieces, despite the fact they were very young, and the applicant had been in detention for some time. They were the children of her son and had been born in Australia.
In the event that the applicant did not return to live with her, ER believed that he would be okay as he would have the support of his extended family.
Evidence of Dr Nathani
Dr Nathani gave evidence that his opinion of the applicant and his offending had not changed over time. He felt that the applicant was at moderate risk of non-violent reoffending and he noted in particular the applicant’s long history of stealing. In his view the applicant was of low risk of violent reoffending. Dr Nathani based his opinion on relevant diagnostic tools and the evidence in relation to the “armed with intent to commit indictable offence” incident for which the applicant had been convicted. Dr Nathani noted the letters of support the applicant had received from family and friends. He said the applicant had support in Sydney but that he also had support in Armidale and that this support was very relevant to his assessment of the risk of the applicant reoffending. In Dr Nathani’s opinion, abstinence from alcohol and substance abuse was the most important factor which would determine outcomes for the applicant.
Dr Nathani confirmed that he had read the Individual Management Plan Review of Serco in relation to the applicant, contained at page 49 of the applicant’s supplementary tender bundle. The document describes an incident that took place on 24 November 2020, whereby the applicant was sighted “throwing pool ball on the wall and breaking pool stick in half” whilst in immigration detention. When questioned in relation to this incident, Dr Nathani said that two things were important to note. Firstly, when the applicant snapped the pool cue, the incident substantiated his diagnosis that ongoing detention would lead to an adjustment disorder and depressed mood on the part of the applicant. Secondly, the applicant’s behaviour at that time was not predictive of his behaviour outside of detention.
Dr Nathani considered it important that the applicant go to live in Armidale with his cousin who had travelled a similar path to the applicant. He felt that the applicant would receive significant guidance and help from his cousin and his cousin’s partner, who is a support worker with experience that would assist the applicant.
When questioned about various “scuffles” the applicant had been involved in whilst in prison, Dr Nathani thought that those really resulted from his frustration at being in detention. He felt that a lot of his behaviour was really designed to alleviate his conditions in prison, but he did not see the applicant as “pervasively manipulative”.
When questioned as to the circumstances in which he had made his assessment, Dr Nathani stated the best that he was able to do in the circumstances was a 75-minute video interview with the applicant. However, Dr Nathani maintained that this was sufficient to support his assessment of the applicant.
In his view, if the applicant were released into the community, one could be confident that he would engage with the requisite services to assist him with alcohol and substance abuse.
PRIMARY CONSIDERATIONS
Primary Consideration A: Protection of the Australian Community from criminal or other serious conduct
The first primary consideration, namely the protection of the Australian community, requires the Tribunal to consider both the nature and seriousness of the applicant’s conduct and the risk to the Australian community if the applicant were to commit further offences or engage in other serious conduct.
Nature and seriousness of conduct
The applicant arrived in Australia at the age of eight and started offending at the age of 16. Although many of his offences may be characterised as minor, overall, the offences increased in seriousness over time as can be discerned from the list of offences set out below:
(a)Common Assault-T2;
(b)Affray-T1;
(c)Assault with intent to rob in company;
(d)Shoplifting <=value $2000-T2;
(e)Larceny <=value $2000-T2;
(f)Travel or attempt to travel without a valid ticket-adult;
(g)Use offensive language in/near public place/school;
(h)Larceny <=value $2000-T2;
(i)Possess prohibited drug;
(j)Shoplifting <=value $2000-T2;
(k)Shoplifting T-2;
(l)Fail to appear in accordance with bail acknowledgement;
(m)Resist officer in execution of duty-T2;
(n)Armed with intent to commit indictable offence;
(o)Shoplifting T-2;
(p)Larceny-T2;
(q)Shoplifting T-2;
(r)Possess prohibited drug;
(s)Larceny <=value $2000-T2 (48 attempt);
(t)Fail to appear in accordance with bail acknowledgement; and
(u)Enter vehicle or boat without consent of owner/occupier.
It is of particular concern that the applicant’s last offence involved offensive weapons and was carried out against 14 and 15-year-old victims, including young women. The evidence in relation to the applicant’s interaction with the police must also be viewed very seriously. It demonstrates a lack of respect for Australian law enforcement and put the applicant’s own life in danger, as noted by the sentencing magistrate. There was evidence that the applicant did try to make amends at the time and he also expressed considerable remorse for his offending.
Given the underlying level of violence in a number of the applicant’s offences, particularly his last offence which resulted in the receipt of a significant jail term and his demonstrated lack of respect for the law and law enforcement, the applicant’s offending must, despite his express remorse, be regarded as serious.
Risk to the Australian Community
In assessing the risk to the community if the applicant were to continue his offending, the evidence of Dr Nathani is particularly important. In this regard, I note that the representative for the respondent made much of the fact that Dr Nathani had not seen the applicant in person and had only been able to spend a limited time interviewing him. I accept however, that Dr Nathani used appropriate and well recognised diagnostic methods in assessing the applicant and although it may have been better if he were able to see the applicant in person, I give his opinion significant weight. I do not accept the submissions on behalf of the respondent that the doctor had not been able to carefully consider all of the materials before him and that this may have affected the accuracy of his opinion.
Overall, Dr Nathani assessed the applicant’s risk of non-violent reoffending as moderate, and his risk of violent re-offending as low. I accept his assessment.
Dr Nathani’s opinion is in accordance with the views of Judge Hanley SC who heard the appeal in the District Court of NSW in relation to the applicant’s last sentence. His Honour saw the applicant as having “potential for rehabilitation”.
Another factor also considered relevant by Dr Nathani, was the fact that the applicant has a large and very supportive family who are ready and willing to assist him in his efforts to rehabilitate and re-join the community. This is a significant protective factor.
Although there was evidence of the applicant engaging in manipulative and dishonest behaviour in prison, I do not give significant weight to this behaviour, which seems to have been motivated by frustration and a desire to improve his arrangements whilst in the prison system. I note that the applicant has taken steps whilst in detention to attend courses and deal with his addictions.
I accept that the applicant’s remorse is real and that he is committed to making a positive contribution to the community and not reoffending, although I also accept that this may be difficult for him. He has some plans for the future, such as living with his cousin, working and attending TAFE in Armidale, although his plans are somewhat vague and perhaps a little optimistic given the hurdles he still needs to overcome.
The applicant will clearly benefit from forming new and more positive social relationships with different people to those with whom he has associated in the past. He has a girl he is interested in and wants to impress. He also wants a family of his own. The applicant generally appears to have taken steps to improve his behaviour whilst in detention and this is reflected in the Serco notes produced at the hearing.
In light of the evidence presented, I find the applicant to be at a low to moderate risk of re-offending.
Overall, I find that this first consideration weighs moderately to heavily in favour of non-revocation of the delegate’s decision.
Primary Consideration B: Best interests of minor children in Australia affected by the decision
The applicant has three minor siblings, but the evidence showed very little regular and continuing interaction with them. His brother, CM, also has minor children but there was no evidence of any close relationship between those children and the applicant, other than some vague assertions by ER under cross-examination that his nephews and nieces “miss him”, even though they seem to have had very little interaction with him before he entered detention. Contact between the applicant and his minor siblings and cousins appears to be limited and sporadic but may well improve over time.
I give this consideration minimal weight in favour of revocation.
Primary Consideration C: Expectations of the Australian community
In FYBR v Minister for Home Affairs [2019] FCAFC 185 the Full Federal Court decided by majority that it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. Rather, the expectations of the community that decision-makers are required to consider are those set out in the Direction at paragraph 11.3 of Direction 65, which is analogous to Direction 79.
The applicant has been convicted of multiple criminal offences and has failed to abide by Australian law. Having regard to the provisions of Direction 79 and the applicant’s offences, the Australian community would expect that the applicant is not given the privilege of holding an Australian visa.
It is particularly concerning that the pattern of the applicant’s offending has gotten progressively worse, culminating in the conviction of the “armed with intent to commit indictable offence” on 15 January 2020. I accept the Respondent’s submission that the applicant has repeatedly failed to meet the expectation of the Australian community to obey its laws and that the applicant’s violent and serious offending leads to the conclusion that the community may not expect that the applicant should hold a visa to remain in Australia.
Given the nature and seriousness of the applicant’s cumulative offences, I give moderate weight to this consideration, which weighs in favour of non-revocation of the delegate’s decision.
OTHER CONSIDERATIONS
Strength, nature and duration of ties to Australia
The applicant has lived in Australia for most of his life and certainly, all of his adult life. He has been primarily educated in Australia having arrived here at the age of eight. He says that he can remember a little about Uganda, but he has no memory of living in South Sudan. The Applicant appears to have struggled at school and to have achieved a basic level of education.
There was clear evidence at the hearing that the applicant has a strong and supportive family in Australia, including his “grandmother”, biological mother, siblings and cousins. These relationships are clearly of great importance and value to him. He wants to bring credit to his family in the future and acknowledged the shame his behaviour has caused his family.
The evidence does not demonstrate that the applicant has made any significant contribution to the Australian community. He committed his first offence at 16 and went on to commit a further 15 offences which could broadly be described as increasing in seriousness. His employment was sporadic and there is no evidence of a previous strong work ethic.
It appears that he will have the opportunity to work and to turn around his life with the support of his cousin and his cousin’s partner and that he has a positive attitude to the opportunity for productive work and future study. I accept that he genuinely wants to turn his life around and make a positive contribution to the community.
The applicant in reality can only be regarded as having familiarity with Australia and not with any other country.
Overall, I find this consideration ways moderately to heavily in favour of revocation.
International non-refoulement obligations
The applicant arrived in Australia with his mother and siblings as a refugee from South Sudan. Whilst this may not necessarily mean that the applicant has ongoing refugee status, it is a highly relevant factor. In particular, I note that the visa granted was a subclass 200 visa, which allows the recipient to “stay in Australia permanently”. According, to Department of Home Affairs information provided to the Tribunal by the applicant, a prerequisite for this visa is that the applicant needs resettlement because they face persecution in their home country. Despite the applicant’s eligibility for a Subclass 202 visa, the interviewer made an active choice to grant a Subclass 200 visa in recognition of this persecution element.
The Migration Act (1958) and the Convention Relating to the Status of Refugees 1951 do not contemplate a reassessment of refugee status regularly or within a period of time. As counsel for the applicant pointed out, the applicant therefore remained eligible to remain on this visa until it was cancelled on character grounds, supporting the inference that he faced persecution in his home country as part of this eligibility.
To my mind, the respondent has not proven that the actual risk of persecution has ceased. In this regard, the comments of Allsop J in NBGM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 60 at [172] are relevant, namely that a determination of the cessation of refugee status be evidenced with a demonstration that any change in circumstances in the Applicant’s home country is “clear and lasting”.
Despite DFAT information presented by the respondent which indicates that Dinkas face a low risk of being targeted based on their ethnicity or Christian faith in the capital city of Juba, the same information also indicated that Dinka’s living in conflict related areas face a high risk of societal discrimination and violence. Further, DFAT also assess that Dinka are one of “three prominent ethnic groups who are most at risk, owing to their active involvement in the conflict between the Government and SPLM-IO”. The UN High Commissioner for Refugees reported recently in 2019 that “sustainable conditions are not in place for the safe and dignified return of refugees and IDPs in South Sudan”.
The evidence presented to the Tribunal demonstrates that South Sudan remains a violent and volatile country, wracked by conflict and without strong or established institutions to protect the population. The UN High Commissioner noted as of 2019 that “conflict remains and egregious human rights violations continue to be perpetrated by parties to the conflict with near complete impunity”.
Sudan and South Sudan have continued to be wrecked by Civil War and societal breakdown which is continuing. I note the DFAT information raised by the respondent in relation to the political environment in South Sudan, which indicated that a Dinka government controls Juba, the capital of South Sudan. However, the fact that there is a Dinka government at least notionally in control of the city does not mean that the applicant would be safe there. The applicant is not from Juba and has no connection there. There are inter-tribal rivalries, a lack of law and order, a culture of violence and an abundance of weapons. The applicant has expressed great fears that he would be targeted as someone identified as having returned from another country, quite apart from any ethnic or religious considerations.

Several witnesses gave evidence that the applicant is likely to be killed if he were to return to South Sudan. It is also noteworthy that no members of his family have considered it safe to travel in that country, although the applicant’s brother, CM, gave evidence that he has previously crossed the border into South Sudan from Uganda, but only for the purposes of getting a Visa.
The Applicant left Sudan at the age of 4 and lived in Uganda. He has no memory of South Sudan and no knowledge of that country. He speaks Dinka with a foreign accent and has no familiarity with local customs or idiom. Therefore, he will, in my opinion, be clearly identified as someone who is returning from the West because of the following traits:
(a)a lack of awareness of the political tensions in the country and how to avoid running afoul of them;
(b)he speaks Dinka with a foreign accent;
(c)he speaks English with an accent that South Sudanese, who are taught English in school, will recognise as foreign;
(d)he does not know the common practices or mannerisms that would identity him as a local;
(e)he does not know anyone in South Sudan and will not have a local guide in any part of the country;
(f)he does not know the usual local lifestyle or ways to find work in any part of the country; and
(g)he does not have the facial scarification common to Dinka males that would allow other Dinkas to claim him as one of their own and support him accordingly.
In a country where it appears that literally no one is really safe, the fact that the applicant would stand out as someone who is not a local, who is a Dinka man and a Christian, in my view, places him at risk of serious harm in all areas of the country. The risk may be somewhat mitigated in Juba, but even there, the applicant will stand out as a returned westerner and not a local. The applicant would be entirely alone, even in Juba, without any social or family connections, no one to protect him or help him to orient himself in an unfamiliar environment, no work, and effectively nowhere to live.
I note the conclusions of the UNHCR that “returned refugees” have faced difficulties when applying for citizenship, and that applicants have been requested to bring a residency certificate and information on blood group.
There is no evidence that the Applicant ever had any form of South Sudanese identification or was ever registered as a national prior to leaving the country. There was evidence that he does not even have proper Australian identity documents.
In my view, the applicant faces serious risk of harm if he were to be returned to South Sudan. This conclusion is strongly supported by the evidence made available to the Tribunal. The applicant’s fear of serious harm is in my view, well-founded, and there was no evidence to indicate the contrary.
I place little weight on the evidence given by LM as to the murder of the applicant’s cousin, as the details were very vague and lacking in any specificity, including the cousin’s name, age, and the circumstances in which he was killed. There is nothing in the evidence given which further informs any likely outcome for the applicant.
On the basis of Dr Nathani’s evidence, I am also not convinced that the applicant has an ongoing mental health condition. Rather, the evidence indicates that he is in good physical and mental health, although he may have suffered from depression intermittently because of his incarceration. His depression is likely to be considerably exacerbated if he were to be returned to South Sudan or held in indefinite detention, and it is unlikely he would be able to get ongoing treatment.
It is of concern that the applicant could face an indefinite period of detention in Australia. It is highly unlikely he would be able to be returned to South Sudan at any time in the foreseeable future. Nor is it likely that any third country would accept him.
Although not conceded by the Minister’s representative, the clear weight of the evidence in my view strongly supports the contention that Australia has ongoing humanitarian obligations in relation to the applicant. I accept that the Applicant also has a well-founded fear of persecution in relation to any return to South Sudan because of his race, religion, and membership of a social group, perhaps best identified as “western returnees”.
Based on the evidence before me, I find that it would be in contravention of Australia’s international non-refoulement obligations for the applicant to return to Sudan or South Sudan. There is a real prospect that the applicant will suffer serious harm on return to his home country. The alternative is that the applicant may face indefinite detention in Australia, which at the very least would seem harsh and punitive, particularly in circumstances where the applicant has already completed the sentence he received in the criminal courts and has now spent further time incarcerated in immigration detention.
I give this consideration very heavy weight in favour of revocation.
Extent of impediments to the applicant if removed from Australia
Most of the applicant’s life has been spent in Australia. He has been educated in Australia and considers himself to be Australian. He has little or no memory of his time in South Sudan although he does have some memory of his time in Uganda.
It is highly unlikely that the applicant would easily integrate into the South Sudanese community. Indeed, the evidence before the tribunal was that he would be very noticeable even in the Dinka community because of his health status and the manner in which he may conduct himself. Effectively, despite his ethnic background, he would be a “stranger in a strange land.” He would be unlikely to know local idiom or how to easily blend into the background.
The evidence would also indicate that there is a threat to the applicant’s mental health if he were to be returned to South Sudan. I note however, that the evidence that the applicant would engage in self-harm was not strong.
Considering the factors that may assist the applicant to effectively integrate, he speaks excellent English and the official language of South Sudan is English. This may assist him in gaining employment, however there is no evidence that this would in fact be the case. The applicant also appears to be in good physical health.
There was no evidence that the applicant would have any support at all if he were to return to South Sudan, from family or otherwise, and it is highly likely that he would find it very difficult to establish himself there. It is a war-torn country where the central government is perhaps nominally in control of the capital city of Juba, which is not the applicant’s tribal area. He is unlikely to have any protection or anyone to help him in the process of assimilating into the community and establishing himself.
I give this consideration moderate to heavy weight in favour of revocation.
Impact on victims
There was no compelling evidence before the Tribunal as to the specific impact of the applicant’s crimes on the victims.
CONCLUSION
In considering all of the factors discussed above, I find the balance of factors weighs in favour of revocation of the delegate’s decision. In particular, Australia’s non-refoulement obligations and the applicant’s ties to Australia weigh very heavily in favour of revocation. The applicant is a young man who came to Australia as a refugee. He quite understandably considers himself to be Australian. The applicant says, which I accept, that he only realised the potential consequences of his actions once in detention and that he is now committed to change. He has a second chance.
DECISION
In weighing all of the considerations, I find that the correct or preferable decision is to set aside the reviewable decision made on 21 April 2020, being the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the cancellation of the applicant’s Offshore Humanitarian (Subclass 200) visa.
In substitution, it is decided that the mandatory cancellation decision of the applicant’s Offshore Humanitarian (Subclass 200) visa on 21 April 2020, is revoked.

I certify that the preceding 107 (one hundred and seven) paragraphs are a true copy of the reasons for the decision herein of

........................[SGD]................................................
Associate
Dated: 14 April 2021

Date of hearing: 30 March 2021

Date final submissions received: 31 March 2021

Counsel for the Applicant: Ms Daye Gang

Solicitors for the Applicant: Ms Carina Field, Asylum Seeker Resource Centre

Solicitors for the Respondent: Ms Sophie Roberts, Mills Oakley

[2021] AATA 863

14 April 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies

Jurisdiction

Date of hearing:	30 March 2021
Date final submissions received:	31 March 2021
Counsel for the Applicant:	Ms Daye Gang
Solicitors for the Applicant:	Ms Carina Field, Asylum Seeker Resource Centre
Solicitors for the Respondent:	Ms Sophie Roberts, Mills Oakley