Deng and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] AATA 738
•28 March 2024
Deng and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 738 (28 March 2024)
Division:GENERAL DIVISION
File Number(s): 2024/0135
Re:Manut Majok DENG
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member O'Donovan
Date:28 March 2024
Place:Canberra
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the reviewable decision made by the delegate of the Respondent dated 3 January 2024 not to revoke the mandatory cancellation of the Applicant’s visa under subsection 501CA(4) of the Migration Act 1958 (Cth).
…………………[sgd]…………………..
Senior Member O'Donovan
CATCHWORDS
MIGRATION – non-revocation of mandatory cancellation of visa – where visa was cancelled under s 501(3A) because applicant did not pass the character test – substantial criminal record under s 501(7) – whether power in s 501CA to revoke mandatory visa cancellation should be exercised – considerations in Direction No 99 – the protection and expectations of Australian community – risk of re-offending – family violence – minor children – strength, nature and duration of ties – legal consequences of the decision – impediments if removed – impact on victim – decision under review affirmed.
LEGISLATION
Migration Act 1958 (Cth)
CASES
Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Another [2022] FCAFC 125
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
SECONDARY MATERIALS
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member O'Donovan
15 April 2024
The applicant was born in what is now South Sudan in 1994.
His childhood was traumatic. Versions of his early life are not entirely consistent but in broad outline something along the following lines took place. He was taken from his family when he was eight years old and forced to work on a farm. After six months he was identified by an acquaintance from his home village and returned to his family. By this stage both his biological parents were dead. He was later abducted and at the age of 11 was forced to become a soldier. As a soldier he witnessed death and violence and was wounded himself.
Eventually he left military service and, after a period in Kenya, moved to Uganda with his step-mother and some of his half-siblings and lived for a number of years in a refugee camp.
In 2014 he came to Australia on a humanitarian visa when he was 19.
Since his arrival in Australia he has accumulated a long list of offences which fall into two categories. First, serious traffic offences which involve significant danger to the public. Second, family violence offences committed against two intimate partners.
The applicant’s visa was mandatorily cancelled in 2017 but a delegate decided to revoke the cancellation. Following his release into the community the applicant continued to offend.
In 2023, following convictions for very serious driving offences, the applicant was sentenced to a lengthy prison term and his visa was cancelled again.
On 3 January 2024 a delegate of the Minister decided not to revoke the cancellation. That is the decision under review.
The Tribunal can decide to revoke the cancellation decision if the Tribunal is satisfied that:
(a)The applicant passes the character test (as defined by section 501 of the Migration Act 1958 (Cth) (Migration Act)); or
(b)That there is another reason why the cancellation decision should be revoked.
It is accepted that the applicant does not pass the character test, consequently the only question is whether there is ‘another reason’ why the cancellation decision should be revoked.
In recent Federal Court cases a question has arisen as to whether, if I am satisfied that there is another reason why the cancellation decision should be revoked, I have a residual discretion not to revoke the cancellation.[1] While the question does not appear to be finally settled,[2] I have approached this matter on the basis that:
(a)The decision-making process is a single stage process – if I am satisfied that there is another reason why the cancellation decision should be revoked, I do not have a discretion to nonetheless refuse to revoke it;
(b)Section 501CA(4)(b)(ii) requires me to examine the factors for and against revoking the cancellation. If satisfied following an assessment and an evaluation of those factors, that the cancellation should be revoked, I am obliged to act on that view.[3]
[1] See for example Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Another [2022] FCAFC 125.
[2] See Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497 at [22].
[3] See Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337, at [38]
cited with approval by the Full Court in Minister for Home Affairs v Buadromo [2018] FCAFC 151. See also ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
In considering whether there is another reason why the cancellation decision should be revoked, the Tribunal must have regard to the matters contained in a ministerial direction which was issued under section 499 of the Migration Act. The relevant direction is Direction No. 99 which was executed on 23 January 2023 and commenced on 3 March 2023 (the Direction).
The Direction is divided into ‘Primary’ and ‘Other’ considerations. Primary considerations should generally be given greater weight than the other considerations (but there is scope to weight ‘Other’ considerations more highly in appropriate circumstances[4]).
[4] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23].
The primary considerations are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)Whether the conduct engaged in constitutes family violence;
(c)The strength, nature and duration of ties to Australia;
(d)The best interests of minor children in Australia;
(e)Expectations of the Australian community.
The other considerations are:
(a) The legal consequences of the decision;
(b) The extent of impediments if removed;
(c) The impact on victims;
(d) The impact on Australian business interests.
Having considered each of the considerations identified in the Direction and weighed them, I am not satisfied that there is another reason why the cancellation decision should be revoked.
My reasons for that decision are set out below.
Evidence before the Tribunal
The following material was taken into evidence in the course of the hearing:
(a)‘G’ Documents, G1-G34, pages 1-242;
(b)Statement of Manut Deng dated 26 February 2024 (Exhibit A1);
(c)Statement of Afreem Sagor dated 25 February 2024 (Exhibit A2);
(d)Certificate of Course Completion (Basic Parenting Skills) dated 21 January 2024 (Exhibit A3);
(e)Certificate of Course Completion (Stress Management) dated 21 January 2024 (Exhibit A4);
(f)Certificate of Course Completion (Understanding Addictions) dated 21 January 2024 (Exhibit A5);
(g)Report from Tim Watson-Munro, Consultant Psychologist, dated 12 March 2024 (Exhibit A6);
(h)Certificate of Course Completion (Drug and Alcohol Abuse 101) dated 14 January 2024 (Exhibit A7);
(i)Certificate of Course Completion (Anger Management Techniques) dated 14 January 2024 (Exhibit A8);
(j)Certificate of Course Completion (Starting Your Own Cleaning Business) dated 15 January 2024 (Exhibit A9);
(k)International Health and Medical Services (IHMS) document recording SMART Recovery Group / Education Workshop dated 29 January 2024 (Exhibit A10);
(l)Document entitled “Clinical Records: MANUT MAJOK DENG” dated 29 January 2024 (Exhibit A11);
(m)Statement of Diana Peter dated 14 March 2024 (Exhibit A12);
(n)Statement of William Dut Manut dated 15 March 2024 (Exhibit A13);
(o)Letter from Jamie Alford dated 15 March 2024 (Exhibit A14);
(p)Respondent’s Amended Supplementary Bundle of Material, excluding S36 and S54.
The following witnesses gave oral evidence and were cross-examined:
(a)The applicant;
(b)Jamie Alford;
(c)Tim Watson-Munro.
FACTS
Fact finding principles
In reaching my findings on the primary facts I must apply the principle, clarified by the Full Court of the Federal Court in HZCP v Minister for Immigration and Border Protection,[5] that '…relying on evidence contrary to the essential conviction or sentencing facts would in itself be an error'. The Court made clear that a person who makes representations to revoke the cancellation of a visa cannot advance a factual position that undermines the relevant convictions and sentences as 'another reason' why the original decision to cancel should be revoked.
[5] [2019] FCAFC 202 at [68].
In the present case, the applicant was extremely candid about his offending. He generally accepted that the information recorded by police in ‘Fact Sheets’ accurately presented the facts as best he could recall them. To the extent that the applicant’s recollections differ from the factual matters included in the Fact Sheets I regard the Fact Sheets as more reliable. They are documents which are prepared by police based on contemporaneous material available to them. In the absence of a specific concern about the content of a Fact Sheet I regard them as providing a proper basis for reaching factual conclusions.
Facts
My findings of fact are set out below. Where a finding is controversial, I have referenced the evidence on which the finding is based.
The applicant is a 29 year old citizen of South Sudan. He suffered significant displacement as a child moving between Sudan, Ethiopia, Kenya and Uganda before arriving in Australia.
As an eight year old (while still living in South Sudan) the applicant was abducted from his family. He ended up on a farm where he worked for about six months before being identified by a person from his village, following which he was returned to his family. At around the age of 11 the applicant was forcibly enlisted in the military and served for a number of years. During this period he suffered a wound to his leg and witnessed a number of violent incidents.
The circumstances in which the applicant left military service are somewhat obscure. Following his departure from the military the applicant ended up in a refugee camp in Uganda. He was there with his step-mother and some of his half siblings. Conditions in the refugee camp were extremely tough both from the perspective of personal safety and having enough to eat. Eventually the applicant and some of the other members of his family were granted a humanitarian visa. They arrived in Australia in February 2014.
The applicant lived with his step-mother on arrival in Australia. He was connected to support services early and during 2014 he undertook a short English literacy course at TAFE and vocational training.[6]
[6] Applicant’s Evidence in Reply, p 25.
On arrival in Australia the applicant was already a heavy drinker. The applicant had been introduced to alcohol when he was young and living in South Sudan. His alcohol use increased significantly during his time in the army.[7]
[7] G Documents, G25, pp 179-180.
On 4 October 2014 the applicant was involved in a high speed car chase with police. It was around 3am. The applicant did not hold a driver’s licence at the time. He concedes that he was under the influence of alcohol. When police signalled to him to stop he accelerated away from them. In the ensuing car chase the applicant reached a speed in excess of 100km/h in a 50km/h zone. He crossed to the wrong side of the road while taking a blind corner at speed and struck a trailer parked at the side of the road. The chase ended when the applicant pulled into a driveway. He initially received a good behaviour bond. In the months and years following the police chase, and despite not having a driver’s licence, the applicant continued to drive. He was stopped and breathalysed by police in November 2014 registering a blood alcohol level above 0.05.[8]
[8] Respondent’s Amended Supplementary Bundle of Material, S27.
In November 2015 the applicant was again detected driving without a licence and driving while under the influence of alcohol. He was given a suspended sentence and a good behaviour bond.
On 29 July 2016 the applicant’s family violence offending commenced. He was at the house of his then intimate partner who I will identify as TA. During a verbal argument the applicant struck her with an open hand with significant force. The incident was witnessed by the victim’s four children.
On 3 August 2016 the couple had a further argument. The applicant was angry at the fact that TA had not fallen pregnant. He took hold of his victim and bit her on her right shoulder. Then he slapped her with significant force to the right side of her face causing significant swelling and bruising. The victim attempted to run out of the room but the applicant pulled her back into the bedroom. He then punched her in the chest with a closed fist. The assault was witnessed by the four children in the house. The victim’s daughter ran out of the unit and alerted a neighbour who contacted the police.
At that point in time TA and the applicant had been in an intimate relationship for four months.
As a result of the incident and prior to the assaults being dealt with by the court the applicant was made subject to an apprehended violence order which prohibited him from coming within 50 meters of TA’s residence. The applicant breached that order on a number of occasions - first on 19 September 2016, then twice on 10 October 2016. The applicant says, and I am prepared to accept, that at that point in time he did not understand the significance of an apprehended violence order.
On his second attendance at AT’s residence on 10 October 2016 the applicant ended up having an altercation with AT’s neighbour. At the hearing before the Tribunal the applicant was unable to recall this incident but, based on the police records I am satisfied that it occurred. TA’s daughter contacted police on 000 and the applicant was arrested soon after.
He remained in custody until January 2017. On 20 January 2017 he was sentenced to a number of custodial sentences for his past offending. The period in custody between his arrest and sentencing was treated as time served.
The sentencing judge noted that the applicant:
… has convinced a number of welfare agencies that he has potential and can live a law-abiding life primarily if he stays away from alcohol and stops driving motor vehicles…He has got a supportive family here notwithstanding that a great part of his family is still subject to the harsh life in Sudan or South Sudan.
The upshot of the sentences imposed was that the applicant was released on parole and subject to a number of intensive corrections orders. The applicant was told by the magistrate that for five months he must obey all the conditions of the intensive corrections orders. If he were to breach it, the Parole Board could revoke the order and he would serve the balance of his sentences in prison.
On 24 February 2017 a neighbour of AT rang police following yelling and screaming at her unit. The applicant was found there and was arrested again. He was charged with a breach of the apprehended violence order and immediately pleaded guilty. The applicant remained in custody until he was sentenced in relation to the breach of the apprehended violence order on 23 June 2017. He was sentenced to 15 months in prison with a non-parole period of seven months. The sentence was to be served from 2 July 2017. The reason the magistrate determined a short non-parole period was ‘so he can be assisted in the community to address [his alcohol] issues and so not to offend again’.
On 3 August 2017 the applicant’s visa was cancelled.
The applicant was released from prison in early 2018. He was transferred to Villawood Immigration Detention Centre. He sought review of his visa cancellation and on 19 April 2018 the decision to cancel his visa was revoked by a delegate and the applicant was released into the community.
On New Year’s Eve 2019 the applicant committed another assault on a new intimate partner - AS - who was pregnant with his daughter at the time. The assault occurred at a bus stop. Both the applicant and AS had been drinking and witnesses saw the applicant kick AS. Two members of the public intervened to protect AS. An apprehended violence order was issued to the applicant.
In October 2020 the applicant breached the apprehended violence order and also committed a further driving while disqualified offence. As a result of the contravention of the apprehended violence order he was remanded in custody between 26 October 2020 and 29 April 2021.
At the sentencing hearing the applicant was sentenced to a custodial sentence of eight months for assault and a community corrections order of 12 months for the driving offence and the contravention of the apprehended violence order. A non-parole period of 4 months was set. The sentence commenced on 26 October 2020 so the applicant was released on parole on 29 April 2021. At the sentencing hearing the applicant’s alcohol addiction was discussed. It was noted that in the previous year the applicant had commenced counselling with the centre for addiction medicine but this was short-lived due to a further arrest. Making a referral to the Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) was identified as a priority matter to attend to once Mr Deng was released.
The applicant re-offended on 5 November 2021. He was observed by police driving and after parking the vehicle was unable to produce an Australian driver’s licence. He was convicted for failure to produce his driver’s licence and a conviction was entered. He was also convicted of driving with a special range prescribed concentration of alcohol and driving while disqualified. When he was dealt with by the court on 23 November 2022 he received a community corrections order and an intensive correction order. He was ordered to undertake counselling and treatment of his drug and alcohol issues. However, at this point in time the applicant was already remanded in custody and had been since 6 September 2022.
Prior to being remanded in custody the applicant committed the offences which led to the cancellation of his visa. The offences were committed on 22 July 2022. The applicant at the time was living with AS and his daughter. He had been drinking during the course of the day and was intoxicated. A friend invited him out drinking and then subsequently proposed that the pair drive from Sydney to Canberra.
The applicant drove his friend’s car. During the course of the trip the applicant, while intoxicated, drove his friend’s vehicle at speeds estimated to be up to 200km/h. While doing so he also drove erratically and tailgated other vehicles. Other road users were sufficiently concerned by the driving that they reported the conduct to the police. Shortly after the police were alerted to the applicant’s driving, the applicant lost control of the vehicle. It left the road and crashed into vegetation adjacent to the road. The passenger suffered serious injuries including a fractured pelvis and was taken to hospital by ambulance. In his evidence before the Tribunal the applicant conceded that the road was wet and that he was intoxicated.
He was charged with driving while disqualified and causing bodily harm by misconduct in charge of a motor vehicle. He was sentenced to 15 months in prison with a non-parole period of 10 months commencing on 6 September 2022 and concluding on 5 July 2023.
At the conclusion of his sentence the applicant was taken to Villawood Immmigration Detention Centre as a result of his visa having been cancelled on 14 April 2023. He remains there.
The applicant has not consumed any alcohol since his incarceration commenced on 6 September 2022.
Family arrangements prior to incarceration
For periods prior to his incarceration the applicant was living with AS and his daughter RC. That relationship has however ended and if the applicant were released back into the community he would live with Diana Peter, his former sister-in-law, and her partner, William Dut Manut, who is also the applicant’s former co-worker.
Treatment recommended and treatment undertaken prior to incarceration
As a result of his interactions with the criminal justice system the applicant has been assessed on two occasions by a psychologist. The first assessment was conducted on 26 November 2014 and resulted in a report from Ms Fleur Taylor. She made a diagnosis of Post-Traumatic Stress Disorder (PTSD). The applicant indicated at that assessment that ‘he believes he needs to seek counselling to support his adjustment to Australia’. When Ms Taylor interviewed the applicant a counselling referral had already been placed to STARTTS for counselling but had not commenced. Ms Taylor prepared a treatment plan which noted it was ‘imperative that he receive long-term intervention to address his symptoms’.
In 2016 the applicant had dealings with Mr Jamie Alford. Mr Alford first met Mr Deng when he ran a youth camp in which Mr Deng participated in 2014. In 2016 Mr Alford was working for Legal Aid NSW as a social worker. He made referrals to various support services for Mr Deng including SydWest Multicultural Services, STARTTS and Yourtown employment service.
In 2020 the applicant was referred to a forensic psychologist by the Shopfront Youth Legal Centre in the context of the assault charges he was facing at the time. The applicant gave that psychologist, Ms Braun, a much more extensive history of alcohol use than he gave to Ms Taylor. He indicated that he first drank alcohol when he was ten years of age and quickly began consuming alcohol on a daily basis. His alcohol use increased when he was in the Sudanese army and he would drink ‘most of the day’. The applicant reported that when he came to Australia he continued to consume alcohol at the rate of ‘approximately one bottle of spirits on a daily basis’. He described being unable to control his intake despite wanting to. Ms Braun noted that the applicant had ‘previously been referred for intervention to support him address his alcohol problems, but his attendance has been problematic’. At the time of assessment the applicant was not living with AS and his daughter. Ms Braun noted that the applicant ‘has a two-month-old daughter who he has contact with once per week during supervised visits.’ The applicant told Ms Braun that ‘he is invested in the future of his relationship and hopes to be able to return to live with his partner and daughter’.
Ms Braun summarised the applicant’s engagement with social workers since 2018. She concluded that:
…the degree of intervention he has received to date is unlikely to have adequately met his high level of needs to support him with his complex trauma. Mr Deng has recently re-engaged with…STARTTS. His first period of engagement with this service was reportedly disrupted by him serving a period in custody. Mr Deng indicated that as he had only seen his STARTTS Counsellor on one occasion he could not recall their name, and I was unable to gain his consent to speak to a relevant person within this organisation.
Ms Braun described the applicant as an individual who is motivated towards treatment, desires greater control over his alcohol intake, who wishes to improve his capacities as a partner and father, and who presented as being ashamed of his history of violence.
Ms Braun was supportive of a section 32 application which is an application to have charges dismissed without conviction and the applicant diverted to treatment for mental illness - in Mr Deng’s case - PTSD. Ms Braun also prepared a treatment plan which ‘could be expected to lessen his risk of recidivism’.
Treatment undertaken while incarcerated
While incarcerated, the applicant completed the following courses:
·Stress Management;
·Understanding Addictions;
·Drug and Alcohol Abuse 101;
·Anger Management Techniques;
·Basic Parenting Skills;
·Starting Your Own Cleaning Business;
The applicant also attended a SMART Recovery Group / Education Workshop and three mental health consultations with a psychologist.
Family and friends in Australia
The applicant has immediate family members in Australia, including his daughter RC, his step-mother, and various siblings. He also has more than ten nieces and nephews living in Australia. The applicant maintains a close relationship with each of his family members.
His former colleague and the partner of his former sister-in-law, William Dut Manut, has also offered the applicant employment at his construction company if the visa cancellation decision is set aside and he is released into the community.
PRIMARY CONSIDERATIONS
Protection of the Australian Community
In considering the protection of the Australian community I am required to keep in mind that the Government is committed to protecting the Australian community from harm from criminal activity or other serious conduct by non-citizens. I am required to have particular regard to the principle that remaining in Australia (for a non-citizen) is a privilege which is conferred on the basis that the visa holder will be law abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community.
I need also to give specific consideration to:
(a)The nature and seriousness of the applicant’s conduct to date; and
(b)The risk to the Australian community, should the applicant commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct
In considering the nature and seriousness of the conduct there are factors to which I must have regard specified in paragraphs 8.1.1(1)(a)-(h).
When these factors are applied the result is I must approach the applicant’s case on the basis that his crimes are viewed very seriously by the Australian Government and the Australian Community. His crimes include violent crimes, crimes against women and crimes of family violence. In relation to a number of crimes a substantial custodial sentence was imposed by the courts. The applicant’s offending is frequent and, particularly his driving offences, have increased in seriousness.
I have also given attention to the cumulative effect of the applicant’s repeated offending. There is a pattern to his offending.
The applicant re-offended following cancellation of his visa and receiving a warning in writing about what could happen if he re-offended.[9] While I appreciate that the applicant may not have had sufficient literacy at the time to read and understand the letter unassisted, I note that when the document was given to him he did have assistance from the Shopfront Youth Legal Centre[10]. I am satisfied that he understood that there was a link between his offending and the risk of a visa cancellation in the future.
[9] G17.
[10] Ibid
The nature and seriousness of the applicant’s offending argues very strongly against revocation of his visa cancellation.
The risk should the non-citizen commit further offences
In considering the need to protect the Australian community I must have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. The applicant’s conduct falls short of criminality of that kind.
In assessing the risk to the community I have had regard to the factors identified in paragraph 8.1.2(2) of the Direction. My analysis is as follows.
Nature of the harm if conduct repeated
The harm to individuals should the applicant engage in further conduct of a criminal or serious nature includes becoming a victim of an assault, becoming the victim of family violence or being killed or maimed in a traffic accident.
The likelihood of the non-citizen engaging in further criminal conduct
Deciding whether the applicant will re-offend depends on an assessment of whether the applicant will continue to abstain from alcohol. If the applicant abstains from alcohol then it is unlikely he will re-offend. If the applicant resumes drinking it is likely that he will re-offend. The applicant himself concedes that all of his offending is related to alcohol.
In my assessment there is a significant risk that the applicant will resume drinking alcohol if released from immigration detention. He has been a heavy drinker for more than half his life and he has not been able to abstain from alcohol when free in the community despite having opportunities to reconsider his alcohol use when incarcerated for other crimes. When the applicant has been sentenced in the past his alcohol use and treatment of his underlying PTSD have been identified as necessary targets for treatment. Despite the applicant having significant incentives to pursue proper treatment and alter his behaviour he has been unable to do so when released into the community. I am not optimistic that his circumstances are sufficiently different now that a different result is likely. The applicant’s behavioural patterns have been known for some time, are well entrenched, and have never been effectively addressed in the periods when he has been released in the community.
The applicant’s psychologist Mr Watson-Munro assessed the risk of him reoffending as trending from moderate to low. There are a number of reasons why I am not prepared to accept that assessment. First, Mr Watson-Munro revealed himself as willing to make a favourable assessment in relation to the applicant, even when the evidence did not justify it. Specifically, he observed in his report that the applicant ‘has ceased using alcohol and can be considered to be in a state of Full Remission according to international guidelines’. When queried about that finding in cross-examination he conceded that according to international guidelines full remission requires two years of abstinence. The applicant has not yet been abstinent for two years.
Mr Watson-Munro was also willing to speculate that anecdotally alcohol is available in prison and in immigration detention and so his abstinence does involve a meaningful exercise of self-control. I am aware that illicit drugs are available in both prison and immigration detention, but I have never seen any evidence that alcohol is available. None was presented in this case. That fact is neither so notorious that I could take judicial notice of it, nor the subject of evidence. Accordingly, the assessment depends on a factual matter which has not been proven.
Given that the applicant has been imprisoned previously and resumed alcohol use and criminal offending after release, I am not persuaded that Mr Watson-Munro properly justified his assessment that the applicant’s risk of re-offending was ‘now trending from Moderate to Low’. No specific forensic tools were used to make an assessment. Further, Mr Watson-Munro conceded that in making his assessment he considered only dynamic factors (i.e., those which are subject to change) as opposed to static factors (those which are intrinsic to the applicant and which cannot be changed at this point). Static factors are often a significant component in any assessment of the likelihood of re-offending.
In light of these deficiencies in the report I am not willing to accept the assessment that the applicant’s likelihood of re-offending is trending now from moderate to low. In my assessment, over time the applicant will struggle to abstain from alcohol when released into the community. If he succumbs then there is a very high likelihood of re-offending. His risk of re-offending is at least moderate.
I reach this conclusion notwithstanding the evidence of Jamie Alford, a social worker who has expressed a willingness to assist the applicant to get the help he needs to overcome his psychological problems and addiction issues. The difficulty for the applicant is that Mr Alford has been supportive in the past and made significant efforts to ensure that the applicant has been referred to appropriate support services. However, these referrals have not produced much in the way of engagement by the applicant with the services. I am not persuaded that the applicant’s circumstances now are sufficiently different from his last release from prison and immigration detention that he will engage any better. The fact that the applicant is older might provide some cause for additional optimism, but not a great deal.
Taking into account the risks if the applicant re-offends and the likelihood of him doing so, as well as the seriousness of the conduct, this factor weighs very heavily against restoring his visa to him.
Family violence committed by the non-citizen
The Government has serious concerns about conferring on non-citizens who engaged in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.
There is no dispute that the applicant committed family violence against TA. He was in an intimate relationship with TA at the time and engaged in violent behaviour which I am satisfied caused TA to be fearful. There is also no dispute that the applicant committed family violence against AS in 2019 when he kicked her at the bus stop.
TA was injured in two separate assaults, one on 29 July 2016 and 3 August 2016. They were serious incidents of family violence. It is difficult to assess how serious the assault on AS was but the fact that passers by felt the need to intervene indicates it was quite serious.
There is however not a trend of increasing seriousness of family violence and the last incident involving an assault was 2019. There does not appear to have been a cumulative effect from the acts of family violence. AS is supportive of the applicant’s application.
The applicant has also undertaken courses which may assist him to avoid further family violence offending. He has undertaken an ‘Anger Management Techniques’ course which he completed this year, as well as a stress management course and a parenting skills course.
In the hearing the applicant accepted responsibility for the family violence he committed, appeared to understand the impact of his behaviour on his victims and the children who witnessed it, and, by abstaining from alcohol has sought to address the factors which contributed to the conduct. It is however worth noting that the applicant did not abstain from alcohol following his assault convictions. Also, the applicant did re-offend after serving a prison term for breaching an apprehended violence order.
In these circumstances I would regard the family violence offending engaged in by the applicant as serious. This consideration weighs against revoking the cancellation, but only moderately so, in light of the now extended period without a conviction for family violence.
Strength, nature and duration of ties to Australia
The Direction places significant focus on the impact of any cancellation decision on the non-citizen’s immediate family members.
The applicant has a number of family members in Australia. Of most importance is his daughter RC. I will discuss this relationship further when I turn to the best interests of minor children, but in this context it is important to note that I am satisfied that the applicant’s relationship with RC is close and genuine and she represents a very significant tie which the applicant has to Australia.
The applicant also has a close relationship with the mother of RC. While they are no longer partners, AS is on good terms with the applicant and wishes to co-parent with him.
The applicant’s step-mother is also in Australia. He lived with her for an extended period growing up, while in refugee camps and after arriving in Australia. He lived with her between 2014 and 2019.
The applicant also arrived with three half-brothers Jongbai Majok, Aguer, Sabit andtwo nieces Akush and Chatot. He has a sister Ajak and another brother Chol who live in Australia. He has over ten nieces and nephews living in Australia, including two minors.
The applicant continues to be on good terms with TA despite the family violence he engaged in.
He also has a close friend Diana Peter. They were friends from a young age and have been life-long friends. She was married to the applicant’s step-brother but has re-partnered with William Dut Manut. She has five children. In her statement she said that:
It is very important to me that Manut is released from immigration detention. Manut provides a lot of support to my family, and we have been struggling without him and his contributions, for example:
·Manut used to take my kids to school whenever I was tired or busy.
·Manut used to watch my kids while I was at work at night.
·Manut used to make sure everyone was healthy and eating. Before he was imprisoned, Manut would take my kids to McDonalds every Friday, which my kids have been missing.
·Manut used to buy my kids things they needed and wanted, for example, Nike shoes.
·Manut used to help pay the rent.
I believe it is also important to the community that Manut is released from immigration detention. Manut has a good reputation in the South Sudanese Australian community, he used to be involved community events like BBQs, and people still ask me for his contact information and when he is going to be released.
The applicant intends to stay with William Dut Manut and his partner Diana Peter if released from immigration detention.
The applicant does not have a strong pattern of employment in Australia though there have been periods where he has been in employment. When he first arrived he studied short courses at TAFE and commenced work in 2016. He worked various jobs including a warehouse job which he got fired from due to poor attendance. He also worked in the construction industry for AT Projects and his friend William. He also had periods where he was unemployed. In his Personal Circumstances form submitted to the delegate the applicant accepted that his ‘employment history is limited, and due to his incarceration he is currently unable to contribute to the family finances. However when he has been employed in the past he has contributed to the financial support of his mother and family, and he is keen to resume doing this as soon as possible’.
On release, Mr Deng has advised that he will work with William Dut Madut and he has an offer of work.
All of these connections indicate that the applicant has strong family ties in Australia and many people who would miss him if he were removed. This consideration weighs in favour of revoking the cancellation.
Best interests of minor children in Australia
The applicant relies on the best interests of a number of children as being relevant but primarily on the best interests of his three year old daughter RC.
In his original Personal Circumstances Form submitted to the delegate, the applicant identified two minor children to whom he was related as relevant:
(a)MAJM and
(b)DJM.
They are both children of Diana Peter who used to be married to the applicant’s brother (or step-brother) Jongbai Majok Deng.
The applicant also has a relationship with three younger children of Diana Peter and William Dut Manut. They are not blood relatives but it is clear he has a close relationship with them.
It was noted on the applicant’s behalf in his Personal Circumstances Form:
Mr Deng has a close relationship with his nieces and nephews when he is living in the community. Mr Jongbai Deng and Ms Diana Peter have both visited him at times while he has been in custody, accompanied by some of their children.
…
Although none of these children are directly dependent on Mr Deng for housing or financial support, he has provided practical support including supervising and babysitting the children. Also, they share a close family relationship and there would be an emotional impact on the children if Mr Deng was removed from Australia.
It was clear from the attendees at the hearing that the applicant comes from a large and supportive family. I accept that all of the minor children who he is related to would miss him and be concerned for his safety in South Sudan. It is also clear from the evidence of Diana Peter that the applicant has played a role in the lives of her children who are not directly related to him. When he was free in the community Mr Deng provided these children with practical assistance including supervising and babysitting the children. I accept that there would be an emotional impact on the children if Mr Deng was removed from Australia.
For the purposes of considering the best interests of minor children I will consider RC separately as her interests differ from those of the others given that the applicant is her father.
RC
RC’s interests would be gravely affected. Even though her father has been incarcerated for most of her life, it was clear from the Tribunal proceeding that RC and the applicant shared a loving relationship. RC’s mother has clearly worked hard at ensuring that RC knows her father.
I am satisfied that RC lived with her mother and father when she was born. The two subsequently separated. The applicant remained involved in her upbringing. Following the applicant’s incarceration in 2022, RC continued contact with him through video calls. They remain close and connected. I accept that it would be in RC’s best interests for her father to remain in Australia and free in the community. She would benefit from a close relationship and physical contact with her biological father as well as improved prospects of financial support.
I am satisfied that non-revocation is not in RC’s best interests. Having regards to the factors in 8.4(4) I note the following:
(a)The relationship is parental and has been close since RC’s birth. Even though the applicant has been incarcerated there has been ongoing meaningful contact;
(b)RC does not turn 18 for 15 years. The applicant is likely to play a meaningful parental role in that time as he will have access to her and has agreement with RC’s mother that she will allow him to co-parent. Whether the relationship will be entirely positive is more difficult to determine. If the applicant does not remain sober there is a significant risk that his pattern of offending will continue and there will be extended periods where he is absent from RC’s life. His role in her life may not always be positive;
(c)RC clearly loves her father and wants to be close to him. I was able to observe her sitting on the applicant’s lap and independently choosing to do so during the course of the hearing. The applicant’s behaviour which has resulted in significant periods of physical separation may well have had a negative effect on her to date, as may any future periods of physical separation if the applicant continues to offend. I do not have any specific evidence on this though, so will proceed on the basis that no negative impact has been established. None was discernible at the hearing;
(d)The likely effect on RC of separation from the applicant as a result of his removal is difficult to judge. I note however that her father has been incarcerated for 25 out 47 months of her life and if he is released into the community he will not be living with her. If the applicant is detained or removed to another country, there is the prospect of ongoing communication through video calls. I note however that in circumstances where there is no or only limited prospects of a face-to-face reunion a relationship would be difficult to maintain over time;
(e)RC’s mother has, due to the breakdown of the relationship and the applicant’s absence in prison, fulfilled the parental role;
(f)I do not have specific evidence from RC about the visa cancellation but she has asked others about when her father will be able to see her which suggests that her preference is that the applicant be released into the community;
(g)There is some risk that RC may be exposed to family violence if the applicant is returned to the community. He has assaulted an intimate partner in front of children previously and may do so again. I have no reason to think that the applicant would abuse or neglect RC in any way;
(h)There is no evidence that RC has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
It is clearly in RC’s best interests that the applicant’s visa cancellation be revoked. The parental relationship is an important one, and there is a genuine bond between them. .
Ms Peter’s children
In relation to Ms Peter’s children, their relationship with the applicant is non-parental and has been characterised by significant periods of absence. The applicant is not likely to play a positive parental role in the children’s lives. Others have that responsibility. I am not aware of any negative impact from the applicant’s conduct on the children. The children are likely to be able to maintain some contact with the applicant electronically. There is no evidence concerning the views of the children, or whether the children have been at risk or suffered any trauma related to the applicant. I proceed on the basis that they have not.
As the applicant is clearly a help to these children’s parents, it would be in their best interests if the applicant remained in Australia. However, given the narrow scope of the relationship I do not give that much weight.
Taking into account the interests of all of these minor children, this consideration strongly supports the cancellation of the applicant’s visa.
Expectations of the Australian Community
As the Direction makes clear, 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, the Australian community, as a norm, expects the Government not to allow such a non-citizen to remain in Australia. Visa cancellation may be appropriate simply because the nature of the offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. The Australian community expects that the Australian Government should cancel a person’s visa if serious character concerns are raised through:
(a)acts of family violence; and
(b)commission of serious crimes of a violent nature against women.
This expectation applies regardless of whether the non-citizen poses a measurable risk of causing harm to the Australian community.
This consideration weighs very heavily against revoking the cancellation of the applicant’s visa.
OTHER CONSIDERATIONS
Legal consequences of the decision
The Direction notes that decision-makers should be mindful that unlawful non-citizens (which the applicant will be if his visa cancellation is not revoked) are, in accordance with section 198 of the Migration Act, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section. In the meantime, they are liable to detention under section 189. Section 197C(1) of the Migration Act provides that for the purposes of section 198 removal, it is irrelevant whether Australia has non-refoulement obligations in respect of the unlawful non-citizen. By way of explanation the Direction notes that a non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia’s non-refoulement obligations arise under various international conventions including the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT) and the 1957 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugee Convention).
The applicant has specifically raised Australia’s non-refoulement obligations as matters to be considered in deciding whether to revoke the visa cancellation. Indeed, the applicant contends that I should find that the legal consequence of a decision not to revoke the cancellation ‘is that he will be removed from Australia to [South Sudan] in violation of Australia’s international legal obligations not to return, deport or expel (refouler) a person to a place where they will face a specific risk of harm’. The applicant raises credible claims that he has a well-founded fear of persecution on the basis of his fears of being forcibly enlisted in the army and there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to South Sudan there is a real risk that he will suffer significant harm, namely arbitrary deprivation of life.
The Direction provides some guidance on how to deal with contentions of this kind. It splits applicants into two categories – applicants covered by a protection finding and applicants not covered by a protection finding. The applicant in this case falls into the second category. He has not applied for a protection visa (which if granted would ensure that he was not returned to South Sudan and could remain in Australia) and no other assessment of any protection claims which he might have has been undertaken. The Direction deals with persons in this category in paragraphs 9.1.2(1) and (2):
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 Migration Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA of the Migration Act. Where such claims are raised, they must be considered.
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 the non-refoulement issue 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.
In the present case the applicant has not made an application for a protection visa. His evidence indicates that he has made no decision in that regard and he will be guided by his lawyers as to what to do following any decision in relation to the cancellation of his humanitarian visa. Consequently there has been no consideration of whether the applicant qualifies for a protection visa under the Migration Act and no finding that he is owed protection in any other context.
The claim by the applicant that non-refoulement obligations are owed are credible and in light of the terms of s 198 and s197C the legal consequence of any decision not to revoke is that the applicant will be liable to be returned to South Sudan in breach of Australia’s non-refoulement obligations. I accept that is the legal consequence of any decision not to revoke. This must weigh in favour of revocation. However, in considering the weight to give the consideration it is important to keep in mind that while it is a legal consequence of the decision, it is not inevitable that refoulement will occur. It is within the applicant’s power to avoid the risk by making an application for a protection visa. If his protection claims are accepted I am satisfied that he will not be refouled.
In this context I am not satisfied that there is much to be gained to further analysis of the applicant’s claims. I am satisfied that they have substance and I am satisfied that there is a process he can access which is likely to avoid him being returned to South Sudan. If his safety concerns are genuine it is a process I would expect him to access.
However, notwithstanding that the protection visa process creates a pathway for the applicant’s claims to be considered and refoulement to South Sudan to be avoided, the analysis should not end there. As the applicant points out in his Reply document, ‘the inability to return [to South Sudan] is a material factor in this merits review’. Deferring a non-refoulement assessment may prompt the applicant to make a protection visa application, which will result in him being subject to a longer and indeterminant period of detention. Ongoing detention will have adverse consequences for the mental health of the applicant and poses other risks for the applicant. I accept that detention for an indeterminant period will be difficult for the applicant and may have mental health consequences. I have not seen any evidence which persuasively suggests that further detention provides an opportunity for relapse in relation to the applicant’s alcohol use.
The applicant further notes that in the event that he does not apply or is not granted a protection visa due to character concerns, the applicant will likely be impacted by the Migration Amendment (Bridging Visa Conditions) Act 2023 (BVR Act) which commenced on 18 November 2023. The BVR Act provides for the granting of bridging visas to non-citizens for whom there is no real prospect of removal from Australia becoming practicable in the reasonably foreseeable future and who for legal reasons cannot be detained under subsections 189(1) and 196(1). The granting of such visas can be the subject of mandatory and discretionary conditions which place significant restrictions on the visa holder when released into the community. Criminal offences have been created for breach of certain of those conditions, with harsh penalties attached. The applicant contends that the onerous conditions associated with such a visa will negatively impact his ability to reintegrate into the Australian Community, his ability to re-enter the workforce and maintain employment. Of particular concern is the condition which requires a visa holder to obtain the Minister’s approval before performing any work or regular organised activity involving more than incidental contact with a minor or vulnerable person. In the applicant’s submission this carries with it the possibility of the applicant inadvertently engaging in ‘regular organised activity’ during his parenting duties which if it led to conviction would result in a minimum one-year sentence for each day of breach being imposed.
I accept that if I do not revoke the applicant’s visa cancellation, then as a practical matter it is likely that he will be detained for an uncertain period of time while consideration is being given to any application he makes for a protection visa, and if that visa is ultimately refused any release into the community will be subject to conditions which constrain significantly his movements and activities within the community.
Viewed from the applicant’s perspective such constraints are onerous and confining. I accept that any further period of detention will be difficult for him and may have adverse consequences for his wellbeing. If he is not granted a protection visa and is released into the community it is likely his liberty will be highly constrained.
However, viewed from a community safety perspective, the applicant has through his illegal driving activities proven himself on a number of occasions to be a danger to the community. If the ultimate outcome of a decision not to revoke the visa cancellation is that at some point in the future the applicant is released into the community subject to heavy supervision, that outcome has advantages from the perspective of community safety and is far less damaging than either refoulement contrary to Australia’s international treaty obligations or indefinite detention.
I do however consider that in the short to medium term, the practical result of any decision not to revoke is that the applicant will remain in detention. This is adverse to the applicant’s wellbeing and for that reason the consideration weighs in favour of revoking the visa cancellation, but not as heavily as it would if the likely practical outcome were that the applicant would be returned to South Sudan and that return would involve a breach of Australia’s non-refoulement obligations.
I note that this section of my reasons deals with a range of submissions from the applicant, some of which deal with the legal consequences of the decision and some with the likely practical outcome of any decision. Given the close relationship between the two it has been convenient to deal with them in a single section, but I am conscious that some of the material discussed is strictly speaking distinct from the consideration identified in 9.1 of the Direction.
Extent of Impediments if removed
I must also consider the extent of any impediments that the applicant may face if removed from Australia to his home country 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 fled South Sudan as a teenager and appears to have lost contact with all of his relatives and friends there. Even though the applicant is relatively young, in good physical health and is familiar with the language and culture of South Sudan, he has psychological treatment needs and alcohol addiction issues which mean he would struggle to establish and maintain a basic standard of living in a country where maintaining basic living standards is very difficult for many citizens.
This factor weighs in favour of revocation. However, given that I consider it unlikely that the applicant will be returned to South Sudan, that affects the weight I am prepared to give it relative to other considerations.
Impact on the victim
The applicant’s former partner AS is a victim of the applicant’s family violence. In her statement she outlines how she would be detrimentally affected if the applicant’s visa cancellation were not revoked. She says:
I need Manut to be released to provide financial and parenting support for me and [RC]. I need him to be able to pick up [RC] from childcare, look after her when I’m at TAFE or work, when she’s sick and help with her financial needs.
The negative impact on AS weighs in favour of revocation of the visa cancellation.
FINAL ANALYSIS
Informed by the principles in paragraph 5.2 of the Direction I have taken into account the considerations identified in sections 8 and 9 of the Direction which are relevant to this decision.
The following considerations weigh very heavily against a decision to revoke the cancellation:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The expectations of the Australian community.
The following considerations weigh against revocation:
(a)Conduct of the applicant which constituted family violence.
The following considerations weigh in favour of revocation of the cancellation, some of them very heavily:
(a)The strength, nature and duration of the applicant’s ties to Australia;
(b)The best interests of minor children;
(c)The legal consequences of the decision, (although the weight to be attributed to this needs to be considered in the light of the likely practical result being that the applicant will remain in Australia and subjected to the detention regime on an ongoing basis);
(d)The extent of impediments the applicant may face in establishing himself and maintaining basic living standards if returned to South Sudan (noting again that the weighting of this consideration needs to reflect the fact that a forced return to South Sudan as a practical matter is not the most likely outcome);
(e)The impact on victims.
When these considerations are weighed, I am not satisfied that there is another reason why the applicant’s visa cancellation should be revoked. His crimes are very serious and they carry the risk of very serious injury or death if they are repeated. I am not confident that the applicant will abstain from alcohol if he is released into the community and if he does not there is at least a moderate risk that he will commit further crimes.
I accept that this has harsh consequences for the applicant himself and people who are close to him – in particular his daughter RC. However, even when these are taken into account I am not satisfied that those interests outweigh the interests of the Australian community which are in play. If it were certain that the applicant would be returned to South Sudan as a consequence of this decision I may have reached a different view and weighted the considerations differently. However, in light of the acknowledged ‘inability to return’[11] the applicant to South Sudan, and the realistic outcome that the applicant will remain in Australia and subject to a detention regime which in all likelihood will result in the applicant being released into the community at some point (but subject to strict supervision) I am satisfied that there is not another reason to revoke the cancellation of the applicant’s visa.
[11] Applicant’s Evidence in Reply, at [22.1]
Accordingly, the decision under review is affirmed.
138. I certify that the preceding 137 (one hundred and thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member O’Donovan.
.......................[sgd]..........................
Associate
Dated: 15 April 2024
Counsel for Applicant
Ms R Thampapillai
Solicitor for Applicant:
Ms S Lee, Immigration Advice and Rights Centre
Solicitor for Respondent:
Ms G Gutmann, Minter Ellison
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