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

Dau and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 472 (23 March 2023)
Division:GENERAL DIVISION
File Number: 2023/0503
Re:Awouw Samuel Dual Dau
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Britten-Jones
Date:23 March 2023
Place:Melbourne

The decision of the Tribunal is to set aside the decision made on 18 January 2023 to not revoke the mandatory cancellation decision dated 3 December 2019 and substitute a decision that the cancellation decision is revoked.
.....................[sgd]...................................................
Deputy President Britten-Jones
Catchwords
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – whether there is ‘another reason’ to revoke mandatory cancellation decision – applicant spent his formative years in Australia and has a nine year old daughter and family in Australia - he would face significant impediments and serious risk of harm if removed to South Sudan – the primary considerations of the protection and expectations of the Australian community are outweighed by the countervailing considerations – a consequence of non-revocation is indefinite detention – the decision under review is set aside
Legislation
Migration Act 1958 (Cth)
Cases
CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
SZRTN v Minister for Immigration and Border Protection [2014] FCA 303
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
Secondary Materials
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023)
UN High Commissioner for Refugees (UNHCR), UNHCR Position on Returns to South Sudan - Update III (October 2021)
United Nations Mission in South Sudan, Brief on Violence Affecting Civilians (July – September 2022)
REASONS FOR DECISION
Deputy President Britten-Jones
23 March 2023
INTRODUCTION

This is an application for review of a decision to not revoke the mandatory cancellation of the applicant’s Global Special Humanitarian (class XB) (subclass 202) visa (the applicant’s visa) under s 501(3A) of the Migration Act 1958 (Cth).[1]
[1] All references to legislation are to the Migration Act 1958 (Cth) unless otherwise stated.
THE DECISION TO CANCEL THE APPLICANT’S VISA AND SUBSEQUENT PROCEDURAL HISTORY
On 3 December 2019 the applicant’s visa was mandatorily cancelled (the cancellation decision) by a delegate of the Minister under s 501(3A) on character grounds due to his substantial criminal record and because he was serving a sentence of imprisonment of over 12 months.
On March 2022 the applicant sought revocation of the cancellation decision and made representations in support of revocation which included as follows:
My parents, siblings and relatives all live in Australia. My parents, siblings and I arrived in Australia on 23/11/2006 as humanitarian refugees and permanently resettled in Australia. My parents and siblings are now Australian citizens and permanent residents. I only know Australia as my home. I do not have relatives in the countries of origin. I grew up as a refugee and largely in Australian environment. I also have my daughter … as a result of my relationship with my ex-girlfriend. I am fully part of my daughter’s life. As my parents, siblings, close relatives and above all my daughter live in Australia, I do not want to separate from them. My parents are growing old and my daughter all need my help as I am their support person. I have learnt from my bad deeds, I am remorseful about it, and I hereby request honourable Minister or delegate to consider my reconnection with my relatives, plus my life will not be guaranteed should I leave Australia.[2]
[2] G Documents 65.
Lawyers for the applicant made representations on his behalf dated 30 November 2022.[3]
[3] G Documents 82-130.
On 18 January 2023 a delegate of the Minister decided not to revoke the cancellation decision (the non-revocation decision). On 25 January 2023, the applicant applied to the Tribunal for review of the non-revocation decision. At the hearing, the Applicant was represented by counsel instructed by the Asylum Seeker Resource Centre. There was a significant amount of summons material which was not tendered as evidence before the Tribunal.
LEGISLATIVE FRAMEWORK
Under s 501(3A), the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test referred to in s 501(3A) is outlined in s 501(6). Relevantly, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by sub-s (7)). For the purposes of s 501(6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[4]
[4] Migration Act 1958 (Cth) (Migration Act) s 501(7)(c).
Where a visa has been cancelled as set out above, the Minister has a power under s 501CA(4)(b) to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked:
501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)(is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a)(a) give the person, in the way that the Minister considers appropriate in the circumstances:
(i)     a written notice that sets out the original decision; and
(ii)    particulars of the relevant information; and
(c)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(d)the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be revoked.
Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.
Issues before the Tribunal
The applicant does not pass the character test prescribed under s 501(6)(a) as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has a “substantial criminal record” as defined under s 501(7). Therefore, the applicant cannot rely on s 501CA(4)(b)(i) to have the mandatory visa cancellation revoked.
Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision to assess if there is “another reason” why the cancellation decision should be revoked. This assessment is made by reference to the representations made by the applicant which I am required to read, identify, understand and evaluate.[5] Deciding whether or not to be satisfied that “another reason” exists might be the product of necessary fact finding, or the product of making predictions about the future, or it might be about assessments or characterisation of an applicant’s past offending.[6]
[5] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [22] and [36].
[6] Minister for immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41 at [14].
The applicant concedes that he does not pass the character test and that the only issue for the Tribunal is whether there is “another reason” to revoke the cancellation decision having regard to the principles and considerations in Direction 99.[7]
[7] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023) (Direction 99).
Direction 99
The purpose of Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023) (Direction 99) is to guide decision-makers in performing functions or exercising powers under s 501 and s 501CA. Under s 499(2A), the Tribunal must comply with a direction made under s 499.
The relevant principles that the Tribunal must apply to the task of deciding whether to revoke a mandatory cancellation are set out in paragraph 5.2 of Direction 99 as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on 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)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
In making a decision under s 501CA(4), the following are primary considerations:
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the strength, nature and duration of ties to Australia;
(d)the best interests of minor children in Australia; and
(e)expectations of the Australian community.
In making a decision under s 501CA(4), other considerations must also be taken into account, including (but not limited to):
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.[8]
[8] Direction 99 [7].
BACKGROUND
The applicant was born in Khartoum, but his family came from the Bor region in what is now South Sudan. He is 29 years old and is one of five children. He grew up surrounded by the violence of the war in Sudan and lived in constant fear. Life was a struggle. The family fled what became known as the Second Sudanese Civil War[9] when the applicant was about 7 years old. They went to Egypt where they stayed for about 5 years before coming to Australia.
[9] This was a conflict from 1983 to 2005 between the central Sudanese government and the Sudan People's Liberation Army.
The applicant arrived in Australia in November 2006 when he was 13 years old. He could not read or write English but he quickly learnt and, to his credit, completed his secondary education and was awarded his VCE. After school the applicant drifted between apprenticeships and part time work, but he missed the structure of school life and became despondent.
In 2013 the applicant was involved in a fight at a party and was stabbed in the heart. He was placed in an induced coma and was in intensive care for four days. He spent six weeks in recovery at the Royal Melbourne Hospital. He nearly lost his life. Later he was diagnosed with post-traumatic stress disorder as a result of this trauma. He became depressed and started to drink, but he avoided drugs.
The applicant and his ex-partner have one daughter, born in 2014. His ex-partner still sees his family but the applicant began a new relationship with his current partner in 2017.
The applicant’s drinking progressively became excessive, and he commenced a life of crime. He would drink and get into a fight and steal or damage property. The applicant’s Criminal History Check records his first conviction was in January 2017. He is currently in immigration detention and was in prison from 24 January 2019.
CONSIDERATION
Protection of the Australian community – 8.1 of Direction 99
When considering the protection of the Australian community, I have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. Entering Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. As required by paragraph 8.1(2) of Direction 99, I give consideration below to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the non-citizen’s conduct – 8.1.1 of Direction 99
The applicant’s criminal record of convictions commences on 23 January 2017 for affray, recklessly cause injury, fail to answer bail, attempt robbery, intentionally damage property, state false name and being drunk in a public place. He received an aggregate five months imprisonment and was placed on a community correction order for 12 months. Similar offending, including an unlawful assault, resulted in further convictions in the Melbourne Magistrates Court on 17 February 2017 and 1 November 2017. The applicant continued to offend during 2018 up until his most serious offence of armed robbery, which was committed on 25 January 2019. It is concerning that some of this offending was against emergency workers whilst they were on duty.
The circumstances of the armed robbery were described by the sentencing Judge as follows:[10]
[4] …You carried and then produced a knife, telling your victim you had come to fix him up. You told him that twice. .… You have opened the knife and you pointed it at your victim. You had been swearing at him and also abused a friend of the victim who happened to be present. You took a low value watch from the counter and then left. You were arrested a short time later sitting in the nearby vicinity drinking a can of alcohol. You were very drunk indeed, there is no doubt about that.
[5] It was not a sophisticated offence, I accept that. But it is no comfort to your victim that you were very drunk at the time or committing what might be described by your counsel in the safety and comfort of a court as a low-level offence. No comfort at all.
…
[7] This style of armed robbery has an impact on those who have the misfortune to be caught up in them. Your victim was robbed at knifepoint in his workplace. That is a place where he should have been safe and he was not and it was purely because of your attendance on the day. Armed robbery is, by its very nature, a serious criminal offence…
[10] G Documents 32-33.
The applicant accepts that his offending was serious. It involved violent and threatening behaviour committed against unsuspecting victims, including emergency workers whilst on duty. The seriousness of the armed robbery is reflected in the custodial sentence of 33 months imposed by the County Court. His other convictions were in the Magistrates Court and were not as serious as the armed robbery. The offending ranged over a period of about three or four years from 2016 to early 2019, during which it was frequent and increasingly serious. Prior to the custodial sentence being imposed, the applicant had received shorter prison sentences and been placed on four separate community corrections orders which should have served as sufficient warning for him to not re-offend.
The nature of the applicant’s offending was conduct arising from excessive drinking, which began after the trauma of the stabbing incident in 2013 and the relationship breakdown in 2016. Mr Patrick Newton, who prepared a psychological assessment of the applicant, said that the applicant’s “drinking laid waste to his life: derailing his employment, disrupting his relationships, and resulting in repeated and increasingly severe criminal offending”.[11]
[11] G Documents 175[53].
In summary, the applicant’s offending was very serious and is a significant factor in terms of whether I am satisfied that there is “another reason” to set aside the non-revocation decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 8.1.2 of Direction 99

In considering the need to protect the Australian community from harm, I have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were repeated, is so serious that any risk that it may be repeated may be unacceptable.[12] As required by paragraph 8.1.2(2) of Direction 99, I also have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
[12] Direction 99 at 8.1.2(1).
In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J in Tanielu v Minister for Immigration and Border Protection.[13] Her Honour states that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.
[13] (2014) 225 FCR 424; [2014] FCA 673.
Nature of harm if further criminal or other serious conduct – 8.1.2(2)(a) of Direction 99
If the applicant were to engage in further similar criminal offending, then the nature of the harm would be very serious because of the threatening nature of the armed robbery committed with a knife, and because of the cumulative effect of being involved with violent behaviour including assaults, causing injury, property damage and affrays. The harm to emergency workers carrying out their duties is particularly serious because they face enough trauma without being subjected to criminal behaviour. With respect to the armed robbery, the sentencing Judge said it “was undoubtedly a frightening event and one that will never be forgotten by your victim”.[14]
[14] G Documents 34[9].
Likelihood of further criminal or other serious conduct – 8.1.2(2)(b) of Direction 99
The applicant contends that there is a low risk of re-offending because he has rehabilitated himself, learnt from his mistakes and shown remorse. I accept that the applicant was an honest witness. Under cross examination he, with genuine remorse, withdrew some of his previous statements that were inconsistent. When pressed about the specifics of his criminal conduct he said that he could not remember because he was so drunk at the time. Nevertheless, he said that he regretted his behaviour and accepted responsibility for the offending for which he was convicted.
The applicant pleaded guilty to the armed robbery at the earliest stage possible, which the sentencing judge noted is indicative of remorse.[15] The sentencing judge referred to a report which found there was remorse and a level of victim empathy.[16] In his written statements, the applicant meaningfully addressed the impact of his actions on his victims noting, for example, that they would have been scared and shocked by his behaviour. I conclude that the applicant is genuinely remorseful about his criminal conduct.
[15] G Documents 38[21].
[16] G Documents 38[21].
In relation to rehabilitation, the applicant said in his written statement:[17]
[58] I am not proud of my actions in the past. It is difficult for me to go back and reflect on them as it brings up a lot of shame. I do not like to think of the person who committed these offences as being the same person I am now. But I have to face up to what I did.
[59] When I was first in jail after my most recent offence, I lined myself up for all the programs, in particular addressing my alcohol problems. I knew that I had to get help to get out of the cycles that I was in. I had not managed to do that myself, which is why I had ended up in prison.
[60] During my time in prison, I completed the Know the Score Program, Young Adult Readiness Program, Access to Vocational Pathways, Certificate II in Cleaning from Kangan Institute, Certificate II in Cleaning from Kangan Institute, Certificate for Healthy Lifestyle Plan Program from Uniting, and the Substance Use Program from Uniting.
[61] I also completed a number of Individual Intervention sessions, and I was working at Ravenhall Correctional Centre full time in the Powder Coating industry. I learnt how much better I felt with full-time work and being productive – I felt that I had a purpose and something to contribute.
[62] I also completed a High Intensity Violence Intervention Program, a Traffic Management Certificate with Kangan, made self-referrals to programs including Dogging/Rigging certificates, Forklift Certificate, Transport and Logistics, and Certificate I/II in Information Technology, and attended weekly meetings with the African Community leaders. I tried to get as much vocational training as I could, so that I would be sure to get a job once I got out, as I know now how important that is.
[63] When I was in jail, I started understanding that when I am sober and not drinking, I am actually a nice person. But when I drink, it makes me do bad things. I used to drink to numb my pain; my physical pain and also sense of worthlessness that I have described. I have learned about how to keep away from people who have a bad influence on me, and how to not involve myself in places and situations that get me into trouble. I have learnt a lot about staying away from trouble.
…
[65] The first time I ever saw a counsellor and received proper psychological support was in around February of 2022, while in Immigration detention. I reached out through my Legal Aid lawyer, due to my difficulties sleeping and my anxiety. I realised I needed professional help to deal with all the things I’ve experienced in my life. My Legal Aid Lawyer organised for me to receive counselling from the Victorian Foundation for Survivors of Torture. I have been seeing my counsellor Maddison about four or five times. Every time I talk to her, it has helped a lot. It has helped me to deal with what I have been going through, and also to better understand why I offended. Now I don’t drink.
[17] G Documents 139-140.
The sentencing judge concluded that the applicant has reasonable prospects of rehabilitation, subject to him remaining completely abstinent from alcohol.[18] He noted that the applicant has learnt English as a teenager and obtained his VCE and said:[19]
Up until the age of 21, you might well have been viewed as something of a success story. So that sort of progress in the past cannot just now be ignored.
[18] G Documents 40[25].
[19] G Documents 39[23].
Mr Newton expressed a positive opinion with respect to the applicant’s insight into his offending and his rehabilitation:[20]
[55] Mr Dau participated in some prison-based education during his sentence. More recently, he has engaged with staff of Odyssey House for some counselling. Mr Dau could demonstrate some benefit from this treatment in the form of developing insight into how he might avoid relapse to problem drinking following any future release into the community.
56] In particular, Mr Dau said that he is determined to pursue a goal of abstinence. He said that he is now convinced that any engagement with alcohol places him at risk for catastrophic problems and that it would be foolish for him to drink again. To avoid a relapse to problem drinking he has developed a basic relapse-prevention plan which focuses upon three core components. Firstly, he intends to maintain contact with appropriate alcohol-focused counselling. He said that he hopes that this will assist him to address emerging stressors, cope with challenges to abstinence and support behavioural control. Secondly, Mr Dau said that he intends to modify his social networks: focusing on members of his church community and avoiding those with whom he previously consumed alcohol. Thirdly, he plans to address his ongoing anxiety through attendance at counselling and other activities so that he ameliorates his symptoms through positive means rather than by resorting to alcohol. Mr Dau also reflected that by obtaining work and engaging in a positive relationship, his recovery would also be strengthened.
[57] While these goals are ‘aspirational’ and while it is clear that Mr Dau will require ongoing assistance and support to put them into practice, I found his level of insight to be positive – particularly in light of the amount of treatment which he has been able to receive to date.
[20] G Documents 175.
I find that since the applicant went to prison in January 2019 he has engaged in an impressive program of rehabilitation which he intends to continue if released. He has stayed out of trouble whilst in prison and detention.
Mr Newton is a very experienced clinical and forensic psychologist. He conducted a thorough psychological assessment of the applicant and provided a report dated 24 September 2022.[21] He referred to the stabbing incident in 2013 and the reported negative experiences that followed including social anxiety, overt paranoia, distressing dreams and disturbed sleep. He said that the applicant did not seek professional assistance to address these symptoms, but he attempted to assuage his distress through drinking which led to further problems with relationships and the police. It was not until 2022 that the applicant had his first experience of counselling to address his behavioural issues. The applicant has been seeing Maddison Cassidy from Foundation House which has reportedly been very helpful.
[21] G Documents 164-180.
Mr Newton referred to the applicant’s excessive drinking, which continued until he was incarcerated in January 2019. Since then, the applicant has withdrawn from alcohol and participated in alcohol focused treatments including online alcohol related counselling with Odyssey House.
Mr Newton’s opinion is that the applicant has a low risk of future violent offending on the assumption that he remains free of alcohol. Based on the supports that are available from his family, partner and various agencies, Mr Newton considers it is unlikely that the applicant will relapse into alcohol use. I am prepared to accept Mr Newton’s opinion because he is both independent and authoritative. The applicant’s partner expressed to me in oral evidence his commitment to abstaining from alcohol. She understands that the applicant needs to avoid the negative peer influences who contributed to his past offending. She stated that if the applicant is released he will live in her home, which is away from those persons. The applicant knows the damage alcohol and bad associations have done to him in the past. He is supported in this by his partner, who has also given up alcohol. Additional support will be provided by the applicant’s own family who do not drink alcohol because of their religious beliefs. The applicant’s father is a priest at a church in Footscray. The applicant has told his father that he wants to resume attending church if he is released. The applicant has the additional incentive to not reoffend because he has spent so much time away from his daughter. He has had time to reflect on that, and understands how important it is for both him and his daughter that he does not reoffend. I think that in this stable and supportive environment it is very unlikely that the applicant will relapse into alcohol abuse. The applicant has abstained from alcohol since 2019, except for one isolated and minor incident for which an acceptable explanation has been provided by the applicant. Mr Newton was asked in cross examination about this isolated incident and he said that it did not change his opinions.
In conclusion, I find that the applicant has a low risk of further offending and that he does not present an appreciable risk to the Australian community.
Conclusion as to protection of the Australian community – 8.1 of Direction 99
The Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens.[22] The applicant has committed serious crimes, but he has engaged in significant rehabilitation by addressing his trauma, alcohol addiction and behavioural issues. He has demonstrated his rehabilitation by his good behaviour in prison and detention. He will be in a very supportive and stable environment if he is released. He is only a low risk of re-offending. There remains a slight risk of re-offending and therefore, the protection of the Australian community is a factor that weighs against the applicant, but I would not give it significant weight.
[22] Direction 99 at 8.1(1).
Family Violence – 8.2 of Direction 99
The applicant has not engaged in family violence so this factor is neutral in my determination as to whether there is another reason to set aside the non-revocation decision.
Strength, Nature and Duration of Ties to Australia – 8.3 of Direction 99
This primary consideration provides at paragraph 8.3 of Direction 99:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) In considering a non-citizen's ties to Australia, decision-makers should give more weight to a non-citizen's ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4) Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
(a)the length of time the non-citizen has resided in the Australian community, noting that:
(i)     considerable weight should be given to the fact that a non citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
(iii)   more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
(iv)   less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non citizen began offending soon after arriving in Australia.
The immediate family members of the applicant are his mother and father and his four siblings. They arrived together in Australia as refugees in 2006 and they are a very tight knit family. The applicant’s brother gave written evidence about the significant negative impact on the family if the applicant was not released into the community.[23] He said that the applicant is essential to the family’s ability to care for their ageing parents. The applicant’s father gave written[24] and oral evidence about how his family needs the applicant to return to them. He said it will severely mentally affect him and the whole family if he is not released. The father needs the assistance of the applicant, particularly because his wife is now blind.[25] I conclude that the impact of not revoking the cancellation decision would have a significant negative impact on the family. They love and support their son and brother and want him to return to them in the community. It would be devastating for the family if he were not released.
[23] Support Letter from Applicant’s brother dated 8 March 2023 (Exhibit 2).
[24] G Documents 144-149.
[25] Applicant’s Statement of Facts, Issues and Contentions 15[68].
The applicant has a nine-year-old daughter who was born in Australia. I give very significant weight to the ties that he has with his daughter. The applicant loves his daughter and misses her and wants to be reunited with her. He remembers going to the park with her and going shopping together when he would buy things she wanted. After separating from his daughter’s mother, he continued to see his daughter twice a week. Despite his criminal behaviour and absences due to time in prison, there is no evidence to suggest that he was not a good father to his daughter. I am confident that if released he would be a very good father and role model for his daughter. He has spoken to his ex-partner and expects to be able to resume seeing his daughter if he is released. The applicant’s current partner gave evidence that he was a very hands-on father when in the community, and that he is desperate to be released so he can have a proper relationship with his daughter as she grows older.[26]
[26] Unsigned Statutory Declaration from Applicant’s partner (Exhibit 8).
The applicant has been in a relationship with his current partner since 2017. She gave oral and written evidence in support of him. She has steady employment and accommodation. She will be devastated if he is not released. She said he is the most caring person who lost his way and turned to alcohol and crime after being stabbed. She has seen the change in him since he has abstained from alcohol in prison. She wants to support him in the community and to have children with him.
I conclude that the strength, nature and duration of the applicant’s ties to the Australian community are very significant and positive. The applicant arrived in Australia in 2006 when he was 13 years old. He is now 29 years old, so he has spent most of his life in Australia; including during those formative teenage years. He has contributed positively to the Australian community by successfully completing his secondary education and obtaining his VCE. I adopt the remarks of the sentencing judge in August 2019 who said that “[u]p until the age of 21 [the applicant] might well have been viewed as something of a success story”[27] which cannot now be ignored. I conclude that the applicant’s ties to Australia is a very significant factor weighing heavily in favour of revoking the cancellation decision.
[27] G Documents 39[23].
Best interests of minor children – 8.4 of Direction 99
I must determine whether non-revocation of the cancellation of the applicant’s visa is, or is not, in the best interests of a child who is affected by the decision. The following factors that I must consider where relevant to this application include:[28]
(a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e) whether there are other persons who already fulfil a parental role in relation to the child;
(f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
[28] Direction 99 [8.4(4)].

The applicant has a nine-year-old daughter with whom he is desperate to be re-united. If released, he will resume his parental role in cooperation with his ex-partner. Despite his criminal behaviour and absences due to time in prison, there is no evidence to suggest that he was not a good father to his daughter. I am confident that if released he would be a very good father and role model for his daughter. The applicant’s father gave evidence that his ex-partner and daughter visit the family, and that the daughter asks about her father’s whereabouts and misses him a lot. Any further separation of the applicant and his daughter will have a significantly detrimental impact on the daughter. I take into account the applicant’s past absences due to his incarceration but, now that he is rehabilitated and served his prison sentence, it is important for the daughter to be able to have him back in her life. She is only nine years old and needs her father to be present during her pre-teen and teenager years of growing up. I conclude that it is in the very best interests of the daughter that her father is released so that they can be together.
In addition to his daughter, the applicant has two minor nieces and one minor nephew. Very little evidence was given about these children, but he did have a relationship with them as a friend and uncle before his incarceration. I conclude that it would be in their best interests for the applicant to be released but I give limited weight to this.
I conclude that the best interests of minor children is a factor that weighs very heavily in favour of revoking the cancellation decision.
Expectations of the Australian community – 8.5 of Direction 99
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to remain in Australia.[29] The applicant has failed to obey the laws of Australia and would therefore be expected to be removed from the community. His criminal conduct was very serious but, for the reasons set out earlier in these reasons, I do not consider that there is an unacceptable risk of further re-offending. I take into account that the Australian community would have a higher level of tolerance of the applicant’s criminal past because he has lived in Australia for most of his life, including during his formative years as a teenager. The applicant has been in Australia for 16 years and his offending took place during a three or four year period which is relatively short. The expectations of the Australian community is a factor that weighs against the applicant and I give it low to moderate weight in all the circumstances.
[29] Direction 99 [8.5(1)].
Other Considerations
In deciding whether there is “another reason” to revoke the cancellation of the applicant’s visa, I must also take into account the “other considerations” listed in Direction 99, but these are not exhaustive.[30] I must consider and understand the representations received from the applicant.[31]
[30] SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303.
[31] See above at [11].
Legal Consequences of Decision – 9.1 of Direction 99
This other consideration provides at paragraph 9.1 of Direction 99:
(1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(l) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non citizen.
(2) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
(3) International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
The applicant has articulated the prospect of Australia breaching its non-refoulement obligations as a reason for revoking the cancellation decision. This is in addition to, and distinct from, his underlying claimed fear of harm if removed to South Sudan.
I note that the risks of harm that the applicant will face if removed are also relevant to non-refoulement obligations and the extent of impediments if removed.
The applicant has not applied for a protection visa but it is open to him to do so. Consequently, the applicant is not the subject of a protection finding (as defined in s 197C) and paragraph 9.1.2 of Direction 99 is relevant:
9.1.2 Non-citizens not covered by a protection finding
(1)Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.
(2)However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person's representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.
(3)Non-refoulement obligations that have been identified for a non-citizen with respect to a country, via an International Treaties Obligations Assessment or some other process outside the protection visa process, would not engage section 197C(3) to preclude removal of the non-citizen to that country. In these circumstances, in making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen's criminal offending or other serious conduct. However, that does not mean an adverse decision under section 501 or 501CA cannot be made for the non-citizen. A refusal, cancellation or non revocation decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non citizen makes a valid application for a protection visa, the non-citizen would not be liable to be removed while their application is being determined.
The decision of the High Court in Plaintiff M1/2021 v Minister for Home Affairs[32] (Plaintiff M1/2021) provides that I am required to read, identify, understand and evaluate the representations made by the applicant. Those representations included a claim of non-refoulement under domestic law. I intend to defer assessment of whether the applicant is owed non-refoulement obligations because it is open to the applicant to apply for a protection visa. That does not mean that I ignore the representations made by the applicant. Plaintiff M1/2021 makes it clear that a decision-maker must not do that,[33] but “one available outcome” is the deferral of the substantive assessment of such a claim.[34] This is consistent with the terms of paragraph 9.1.2 of Direction 99.
[32] [2022] HCA 17.
[33] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [23].
[34] CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124 at [105].
In this case, the applicant has clearly raised claims which may give rise to international non-refoulement obligations. Paragraph 9.1.2(2) of Direction 99 provides that it is not necessary at the s 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. That sub-paragraph applies in this case and allows the decision-maker to defer substantial assessment of non-refoulement issues, as I have decided to do in this matter.
Applicant’s representations including as to risk of harm and statelessness
The applicant made representations concerning risk of harm in South Sudan.
The High Court has provided the following guidance for this situation:[35]
[37] … [The Tribunal is] not required to determine whether the plaintiff was owed non-refoulement obligations (by conducting an assessment of the merits of the plaintiff's claim) in the same manner, or to the same extent, as would be called for by a direct application of the international instruments to which Australia is a party or by reference to the domestic implementation of those obligations.
…
[39] Where the cancelled visa is not a protection visa and a decision-maker defers assessment of whether non-refoulement obligations are owed to permit a former visa holder to avail themselves of the protection visa procedures provided for in the Migration Act, it nevertheless may be necessary for the decision-maker to take account of the alleged facts underpinning that claim where those facts are relied upon by a former visa holder in support of there being “another reason” why the Cancellation Decision should be revoked.
Footnotes omitted.
[35] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [37] and [39].
CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[36] (CKT20) makes clear that I am required to consider facts underpinning the claim such as the risk of harm arising from violence and instability along ethnic lines. In CKT20 the Full Court of the Federal Court rejected the Minister’s submission that there was no obligation to consider a claim based on ethnicity in South Sudan.[37]
[36] [2022] FCAFC 124.
[37] CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124 at [97] to [106].
The applicant said he was scared of being removed to South Sudan where he might get killed because of the war. He would be homeless and have no family or social support because he does not know anyone in South Sudan. As a returnee from the west with perceived wealth, the applicant claimed he would be a target. The applicant’s father was arrested and tortured by security forces before he left. The applicant would likely face a risk of similar treatment if he were returned to South Sudan.
It is apparent from the DFAT Country Information Report for South Sudan dated 5 October 2016, and a recent report from the United Nations High Commissioner for Refugees (UNHCR)[38] that the situation in South Sudan remains dire. There are violations of international humanitarian law, the denial of humanitarian assistance to those in need, restricted rights of freedom of association and a very poor health system. South Sudan continues to suffer from long term political, inter-ethnic and communal conflict and a weak rule of law. UNHCR considers that persons fleeing South Sudan are likely to meet the criteria for refugee status. The applicant would be at risk of harm from ethnic violence because he is a Dinka. The United Nations Mission in South Sudan reported in February 2023 a significant increase in violent incidents, noting that intercommunal disputes between Dinka sib-clans resulted in 135 casualties.[39]
[38] UN High Commissioner for Refugees (UNHCR), UNHCR Position on Returns to South Sudan - Update III (October 2021)
[39] United Nations Mission in South Sudan, Brief on Violence Affecting Civilians (July – September 2022).
In summary, I accept the applicant’s concerns as expressed in his representations that he will likely face serious harm if removed to South Sudan. It is not in dispute that the applicant left South Sudan as a child with his family due to the war. The applicant would have no family support and other network if removed to South Sudan. This is a factor that weighs heavily in favour of revocation of the cancellation decision, but I give it less weight because the applicant is entitled to apply for a protection visa.
If the applicant were to make a protection visa application, then he would face a further period in detention whilst any application is considered or while the Minister considers the possibility of re-settlement or the exercise of a personal discretion in favour of the applicant. There is no evidence before me suggesting that re-settlement or the exercise of a personal discretion would be considered.
The applicant made representations concerning statelessness. The lawyers for the applicant conceded that the applicant would be eligible for South Sudanese citizenship,[40] but said that he lacks effective nationality because of the practical difficulties he would face due to a lack of the information and documentation needed under the South Sudanese nationality laws. Under s 198 there is an obligation to remove unlawful citizens “as soon as reasonably practicable” and this could lead to significant, if not permanent, delay because of the issues with a lack of appropriate documentation. In those circumstances the applicant would be kept in detention for a further period which would be detrimental to him.
[40] G Documents 114.
Ongoing detention would impact the mental health of the applicant and would have adverse consequences. In WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[41] Kenny and Mortimer JJ considered the impact of further detention, which is apposite to the applicant:[42]
… The period of a person’s loss of liberty may be very lengthy, and have no chronologically fixed endpoint, being dependent on the completion of various administrative and executive steps and inquiries. The person concerned will have no accurate conception of when her or his detention might end…
[41] [2021] FCAFC 55.
[42] Ibid at [132].
The prospect of further detention is a factor that weighs in favour of revoking the cancellation decision.
Extent of impediments if removed – 9.2 of Direction 99
Direction 99 requires that I consider the extent of any impediments that the applicant may face if removed from Australia to South Sudan in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the applicant’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to him in that country.
The applicant is in relatively good physical health, but he has been diagnosed with post-traumatic stress disorder, treatment for which, if needed, may be problematic given that it is well known that South Sudan has limited mental health facilities.
I find that the applicant would face significant impediments if removed to South Sudan and he would have great difficulty establishing himself and maintaining basic living standards. This arises primarily because the applicant left South Sudan when he was a young child and has no network of family or friends to support him there. The matters referred to above in relation to risk of harm are also relevant to extent of impediments and I will not repeat them here. The impact of the humanitarian crisis and ongoing tribal instability in South Sudan would have a significant impact on the applicant because of his unfamiliarity with the country and his lack of family or other support. There would be substantial cultural and language barriers which would create significant impediments on the applicant establishing himself and maintaining a basic living standard in South Sudan.
This is a factor that weighs heavily in favour of revocation of the cancellation decision.
Impact on victims – 9.3 of Direction 99
There was no evidence of impact on victims within the meaning of the Direction. This factor is neutral.
Impact on Australian business interests – 9.4 of Direction 99
There was no evidence of impact on Australian business interests within the meaning of the Direction. This factor is neutral.
CONCLUSION AS TO WHETHER TO REVOKE THE CANCELLATION OF THE VISA
I have considered the specific circumstances relating to the applicant as part of my consideration. I am now required to carry out the evaluative exercise of weighing up the factors to determine whether I am satisfied that there is “another reason” to revoke the cancellation decision.
The primary considerations of the protection and expectations of the Australian community weigh in favour of not revoking the cancellation decision, but in my view they are outweighed by the countervailing considerations, namely, the primary considerations of the strength, nature and duration of ties to Australia and the best interests of minor children, together with the other considerations of the legal consequences of the decision and the extent of impediments if removed. Whilst the applicant’s offending was serious, it occurred over a relatively short period. The majority of the applicant’s time in Australia has been without incident. I consider that the low risk of further re-offending is not an unacceptable risk to the Australian community. The applicant has established that he is adequately rehabilitated, and he has very significant supports from his partner, his family and various agencies with whom contact has been made. This support will keep him free from alcohol and away from the negative influences that caused him to stray in the past.
Most importantly for my consideration is that the applicant left his country of origin at a young age and has spent most of his life in Australia, including during those formative years as a teenager. The applicant should be given significant credit for his successful secondary years of education including the attainment of his VCE. This was really against the odds, and it was mostly because of the near fatal stabbing incident that he allowed himself to be consumed by alcohol and engage in a relatively short period of criminal activity. The applicant has a nine-year-old daughter and ageing parents all of whom need him to be released.

My view is that the cancellation decision should be revoked because the countervailing considerations outweigh the protection and expectations of the Australian community. The applicant’s offending should be seen in the context of his childhood trauma of fleeing a war-torn country, and his stabbing which created an environment in which the applicant lost focus and turned to alcohol and then crime. The applicant has addressed the underlying contributors to his criminal behaviour by voluntarily committing to engagement with rehabilitative services whilst in prison and detention over the last four years. He has the support of his partner, siblings and parents in the community and the real motivation to not re-offend because he wants to be with his daughter, partner and wider family. He also has the support of organisations such as Foundation House, and I am confident that he will continue to engage with the available rehabilitative services to successfully reintegrate into society.
The prospect of further detention is a factor that also weighs in favour of the applicant. Currently the applicant lives in hope of being released from detention, but I have grave fears for the applicant’s mental health if that hope is taken away and he remains in detention away from his loving family and partner.
DECISION
I am satisfied that there is another reason to revoke the cancellation decision. The decision of the Tribunal is to set aside the decision under review and substitute a decision that the cancellation decision is revoked.

1. I certify that the preceding 82 (eighty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones

......................[sgd]........................................
Associate
Dated: 23 March 2023

Dates of hearing:

20 and 21 March 2023

Advocate for the Applicant:

Representative for the Applicant:

Ms Suganya Pathanjalimanoharar

Asylum Seeker Resource Centre

Advocate for the Respondent:

Mr Christopher Orchard

Solicitors for the Respondent:

Sparke Helmore Lawyers

[2023] AATA 472

23 March 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Dates of hearing:	20 and 21 March 2023
Advocate for the Applicant: Representative for the Applicant:	Ms Suganya Pathanjalimanoharar Asylum Seeker Resource Centre
Advocate for the Respondent:	Mr Christopher Orchard
Solicitors for the Respondent:	Sparke Helmore Lawyers