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

Deng and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2097 (5 July 2021)
Division:GENERAL DIVISION
File Number: 2021/2352
Re:Aruei Ador Deng
APPLICANT

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

DECISION
Tribunal:Member Rebecca Bellamy
Date:5 July 2021
Place:Brisbane

The decision under review is affirmed
.........................[SGD]...............................................
Member Rebecca Bellamy
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Woman at Risk (Class XB) (Subclass 204) visa - where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 – violence including family violence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
South Sudanese Nationality Act 2011
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Ali v Minister for Home Affairs [2020] FCAFC 109.
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
SECONDARY MATERIAL
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Department of Foreign Affairs and Trade, ‘DFAT Country Information Report – South Sudan’ (6 October 2016)
M Sanderson ‘Statelessness and Mass Expulsion in Sudan: A Reassessment of the International Law', [2014] (Winter) Northwestern Journal of International Human Rights, 12(1),74-114.
REASONS FOR DECISION
Member Rebecca Bellamy
5 July 2021
THE ISSUE BEFORE THE TRIBUNAL

The Applicant is a 27-year-old non-citizen from the country now known as South Sudan. In September 2006, when he was 12 years old, he moved to Australia with his family.[1] The most recent visa granted to him was a Woman at Risk (Class XB) (Subclass 204) visa (“visa”).[2]
[1] Exhibit G1, Section 501 G Documents, G18 page 156.
[2] Ibid, G3, page 9.
On 23 May 2019, a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test and he was serving a full time custodial sentence.[3] On 1 July 2019, the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”).[4] On 12 April 2021, the Respondent decided not to revoke the cancellation.[5]
[3] Ibid, G3, pages 9 to 14.
[4] Ibid, G12, page 80 to 84.
[5] Ibid, G8, page 32.
The Applicant lodged an application for review in this Tribunal on 18 April 2021.[6] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
[6] Ibid, G2.
The hearing of this application proceeded on 14, 15 and 17 June 2021. The Applicant gave evidence via video conference. A trauma counsellor, Ms Boyd-Ford, and the Applicant’s brother both gave evidence by telephone. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
4The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)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.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[7]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[8]
[7] [2018] FCAFC 151.
[8] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[9]
[9] Ibid.
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 6 February 2019, the Applicant was sentenced to 12 months imprisonment (along with some shorter periods that were ordered to be served concurrently) and he was released immediately on parole having already served 118 days in presentence custody. What matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they have actually served.[10]
[10] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416.
Accordingly, there is no doubt that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. He cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
In April 2019, the Applicant’s parole was revoked due to further offending, and he was taken into custody.[11] It was while he was serving this sentence of imprisonment that his visa was cancelled under s501(3A) of the Act. On 18 July 2019, the Applicant was sentenced to imprisonment for six months for other offences.
[11] Exhibit G1, Section 501 G Documents, G11, page 77.
Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[12]
[12] On 1 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
For the purposes of deciding whether to refuse or cancel a non-citizen’s visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles to which the decision maker must have regard.
The principles that are found in paragraph 5.2 of the Direction may be briefly stated 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 measurable 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. However, Australia may 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.
(5)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 8.4(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 measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. These considerations are:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community, including:
i)strength, nature and duration of ties to Australia; and
ii)impact on Australian business interests
Paragraph 7.2 provides that the primary considerations should generally be given greater weight than the other considerations, and paragraph 7.3 provides that one or more primary considerations may outweigh other primary considerations.
BACKGROUND AND OFFENDING
The Applicant came to Australia in September 2006 when he was 12 years old with his mother, four brothers, two sisters and the child of his elder sister. He is the youngest of his siblings. His family had previously lived in refugee camps in Kenya for several years after fleeing Sudan. He thinks they probably left Sudan when he was around six years old, and he has no memory of life there. The place his where his family originated is now the nation of South Sudan.
The Applicant attended high school in Brisbane and completed Grade 12, where he excelled at sports. In 2011, after graduating high school, he was accepted into the Queensland Academy of Sports to train for athletics. At this time, he was in a relationship with his now ex-girlfriend, Ms S.
According to police records,[13] on 28 March 2012, there was a report to the police that the Applicant had arrived home and argued with his sister, causing her to feel so intimidated that she had attempted to run away from him. The Applicant then punched a wall, smashing a hole in it. The incident was witnessed by two children. When the police arrived, they noticed that the Applicant’s sister was fearful and that there was a fresh hole in the wall consistent with a punch. The Applicant initially refused to comment on how the damage occurred.
[13] Exhibit R2, Respondent’s Tender Bundle, R1, pages 145 to 148.
The police records note a previous report of the Applicant having thrown an object at his sister’s head. They had argued about the Applicant having a “white” girlfriend and the Applicant had snapped and thrown one of his shoes, striking his sister on the left side of her face. Their older brother had then separated them. At the time the Applicant was 16 years old.
In the hearing, the Applicant said he had never before heard the allegation that he had smashed a hole in the wall, that he had never been spoken to about it before, and that he had never had anything like that occur with his sister. He said there had never been any incident that would have resulted in the police coming and questioning his sister or questioning him. He added that he was not using drugs or drinking alcohol at that time.[14]
[14] Transcript, page 83, lines 15 to 24.
He denied knowledge of the protection order that was subsequently made on 3 April 2012. He said he had never been to court regarding anything to do with his family and he had never been spoken to by the police about any incident with his family.[15]
[15] Transcript, page 83, lines 25 to 40.
However, a Protection Order was subsequently made naming the Applicant as the respondent and requiring him to be of good behaviour and not to commit domestic violence against the aggrieved.[16] The order contains a signature above the word “Respondent”. The signature looks similar, although not identical, to the Applicant’s signature that appears on other documents before me including his revocation request. In the hearing I asked the Applicant if it was his signature and he said the signature was not his signature and he did not sign the document.[17]
[16] Exhibit R2, Respondent’s Tender Bundle, R1, pages 150 to 152.
[17] Transcript, page 113, lines 5 to 29.
The police notes included that the family were Sudanese, that the Applicant and his sister were from a different mother and that it was common in Sudanese culture for a man to have several wives. The Applicant believes that his mother is the mother of all of his siblings. However, he also said his mother refuses to speak about life in Sudan and the Applicant’s father. The Applicant’s denial that the incidents occurred and that he signed the Protection Order, and the curious notation that the Applicant and his sister had different mothers, raises the possibility of a case of mistaken identity. However, the record contains the Applicant’s full name and date of birth. Further, at the time of the 28 March 2012 incident, there were at least two children living in the Applicant’s family home, being the children of his older sister who were born in 2003 and 2007,[18] which is consistent with the police report that two children witnessed the violence. The Applicant was 18 years old at the time, and his brothers were aged between 23 and 26 years,[19] making it a lot more likely that in the earlier incident it was the Applicant, not one of his brothers, who had thrown a shoe at his sister at the age of 16.
[18] Exhibit G1, Section 501 G Documents, G13, page 91
[19] Ibid, G13, page 93.
On 28 July 2013, the police applied for a Protection Order on behalf of Ms S, naming the Applicant as the respondent.[20] The application indicated that the Applicant and Ms S had argued because she had received a text message on her phone, and the Applicant had demanded “Give me the fucking phone”. He then grabbed the phone from Ms S and threw it onto the bed. He twisted Ms S’s arm behind her back and pulled it up. She was crying from the pain. He then pushed her head into her bedroom wall. He questioned her about the text message and spoke abusively to her. As she got up, the Applicant pushed her out the door. Ms S’s mother asked the Applicant to give Ms S’s phone back. Ms S then asked for her phone back, and the Applicant spoke abusively to her again. He then grabbed Ms S by the front of her shirt and hit her stomach with the palm of his hand making her fall to the ground. Ms S’s mother’s partner arrived home and asked what was going on. The Applicant packed his things and told Ms S to burn all of her photos. He pulled photos of the wall and ripped them up. When he had packed everything in his car, Ms S asked him for her phone back. He pushed her out of the way calling her a bitch and a liar and told her he smashed her phone on the road. Her mother yelled from her room for him to give the phone back. He responded “Listen to me, if your mum keeps yelling out to me I’m going to knock you the fuck out”.
[20] Exhibit R2, Respondent’s Tender Bundle, R1, pages 136 to 143.
Ms S told the police that she had been the victim of previous domestic violence including physical abuse from the Applicant. She said they had previously separated because of this. When the police asked her if the Applicant was usually violent, she said:
“Yep, he’s always angry - he’s probably left his bong behind. He has thrown me downstairs and he has hit me with cords, belts or anything he has in his hands. He has slapped me and punched me before. I have never reported this to Police as I was too scared to ask to leave”.
A Protection Order was issued on 8 August 2013.[21] The order indicates that it was made “by consent without admissions”. It included the condition that the Applicant had to be of good behaviour towards Ms S and not commit domestic violence against her. He was also prohibited from approaching her or approaching within 100m of her home or work.
[21] Exhibit R2, Respondent’s Tender Bundle, R1, page 144.
In the hearing, the Applicant said that he recalled the incident where he broke up with Ms S but he did not know that a protection order had been made. He denied that there was an argument about her phone, that he twisted her arm behind her back, that he pushed her head into the bedroom wall, that he grabbed her by the front of the shirt and hit her, or that he pushed her out of the way and called her a bitch and a liar. He also denied telling Ms S that he was going to “knock you the fuck out”. He said there was no swearing, it was a clean break up and he was the one who was hurt.[22] When asked why, if it was a clean break-up, Ms S had told the police that he did all those things, he did not suggest a reason.[23]
[22] Transcript, page 85.
[23] Transcript, page 86, lines 1 to 5.
Between 2013 and 2018 the Applicant was convicted of 37 offences including assaults, drug offences, property offences, and offences arising from contravening directions and breaching bail undertakings (by failing to appear).
In September 2013, the Applicant was found in possession of utensils/pipes. He was fined and put on a period of good behaviour for three months. In his written materials, the Applicant claimed that the pipe did not belong to him. He said he was driving in a car with his girlfriend and two friends when they were pulled over by the police, and that he pleaded guilty to protect his friends.[24]
[24] Exhibit G1, Section 501 G documents, G16, 121.

On 24 February 2014, the Applicant committed an assault. The police record of the assault,[25] indicates that the Applicant and three other males were approached by the female victim, “Ms G”, and her friend while walking down the street. The Applicant aggressively told one of the males not to talk to the victim and pulled him away. The Applicant said to the victim "Why are you talking to my girlfriend?" "Saying that I raped your sister" "Why would I rape her when she is the one who opens her legs?".[26] The Applicant punched Ms G with a clenched fist on the left side of her face. She tried to defend herself by hitting him back and he punched her again on the left side of her head. Two of the other males blocked him from continuing to hit her and he walked away. When questioned by the police, the Applicant denied striking Ms G, stating she attacked him, and he tried not to lose his temper.
[25] Exhibit R2, Respondent’s Tender Bundle, R1, page 113.
[26] Exhibit R2, Respondent’s Tender Bundle, page 113.
In his written materials, the Applicant said “In complete honesty, I do not remember the events of this offence. At this time, I was heavily drinking alcohol and smoking marijuana”.[27]
[27] Exhibit G1, Section 501 G documents, G 16, page 121.
In the hearing the Applicant said he did not punch Ms G. He said she and her friend were walking around drinking alcohol in the street and when he got off the bus she started latching onto them and saying “You’re a fucking rapist”. He said she was trying to hit him with a bottle and all he did was open his hand to try to stop the bottle, and in the end he pushed her. He said the bottle hit him and she went to the police station. He told the police his part of the story, being that he did not punch her in the face.[28]
[28] Transcript, pages 50 to 55.
When the Applicant was asked if he pleaded guilty to common assault he said:
“I’m assuming so because I don’t really remember going to court with this - this common assault because I just went to the police station I got charged with common assault and I don’t remember being in the courthouse about it.” [29]
[29] Transcript page 54, lines 19 to 22.
The Applicant was asked if he had told police at the time that there were witnesses who could back up his account, and he said that he did. However, he could not explain why, if he had done so, the police had nevertheless charged him. He also denied making the comment about the girl opening her legs, saying he never had anything to do with that person.[30]
[30] Transcript, page 54, line 34 to page 55, line 8.
The Applicant pleaded guilty to this offence on 24 September 2014 and he was sentenced to a fine without a conviction being recorded.
On 14 September 2014, an incident occurred between the Applicant and Ms S which resulted in the police making an application for a Protection Order against him.[31] According to the application the police were called to a disturbance at a bus stop where the Applicant was assaulting Ms S. The police attended and separated them both. Earlier, Ms S and the Applicant had been at home when Ms S wanted to leave, and the Applicant tried to stop her. Ms S walked to the bus stop and the Applicant followed. As Ms S tried to get onto a bus, the Applicant held her and pulled her back. A witness told the police that the Applicant had his arms around Ms S and was hitting her hands so she could not hold onto anything and that the Applicant had physically assaulted her several times.
[31] Exhibit R2, Respondent’s Tender Bundle, pages 127 to 134.
In the hearing, the Applicant denied that he was assaulting Ms S at the bus stop, although he admitted that he was holding onto her trying to stop her from getting on the bus. He said he was hugging her and saying, “Please don’t go, don’t leave”. He said at the time they were both using drugs and alcohol.[32]
[32] Transcript, lines 25 to 48.
The Applicant was not prosecuted for this conduct. Rather, the police applied for a protection order and it was granted on 16 September 2014. It included conditions that the Applicant had to be of good behaviour towards Ms S and not commit domestic violence.[33]
[33] Exhibit R2, Respondent’s Tender Bundle, page 109.
On 7 January 2015, in contravention of those conditions, the Applicant committed an assault occasioning bodily harm against Ms S. According to police records,[34] the police responded to a report of a disturbance and saw Ms S in a very distressed state on the footpath with the Applicant nearby. She was crying and had blood coming from a cut on her left forehead. She also had cuts to her chest, bruising to her eye and a cut to her top lip. She said the injuries were caused by the Applicant. She said she and the Applicant had just had an argument. When she had tried to leave, the Applicant grabbed her by the hair, dragged her back and hit her on the left ear. She became very upset and went down the stairs, approaching the front glass door. She was not sure if she intentionally head-butted the door or accidentally fallen into it as she was in a distressed state, however, her head had hit the glass door, breaking the glass. She crouched down near the door crying. The Applicant put one hand on her throat and squeezed, beginning to choke her. He then used his other hand and began choking her with both hands. He had her pinned against the wall and he put his body weight against her neck choking her. Eventually he stopped and she called the police.
[34] Ibid, page 105.
In his written materials, the Applicant said he and Ms S were using a lot of drugs, being methamphetamine, and on the day of the offence he had told her he wanted to stop using drugs and get his life back on track. He wanted them to do it together. He said she did not like the idea and became very angry. The situation escalated when he told her he wanted to break up with her because she was not willing to give up drugs. She locked herself in a room and threatened to hang herself if he left. Afraid she might do so, he tried to unlock the door, and once the door was open, she ran out through a glass door resulting in her sustaining injuries. The neighbours called the police and he was charged. He said his legal representative advised him to plead guilty, so he did.[35]
[35] Exhibit G1, Section 501 G documents, G16, pages 127 to 128.
In the hearing, the Applicant admitted to having grabbed Ms S by the hair, but he denied the other violence. He said that he had tried to leave, then Ms S had grabbed him by the T-shirt from behind, telling him not to go. He had grabbed her by the hair and pushed her, trying to go outside. Because she was “bipolar in a way” she started screaming and ran through the glass door. He said he started crying and sat down next to her and the neighbours called the police. He said she was telling him to run but he would not leave her. He denied having choked her.[36] I note that in his written materials the Applicant denied having grabbed Ms S by her hair, but he admitted to that in the hearing.
[36] Transcript, pages 57 to 58.
On 23 May 2015 the Applicant committed assault/obstruct police. According to police records[37] the police attended the Applicant’s family home to assist the Ipswich Mental Health Unit with the execution of a Justice Examination Order. The Applicant was detained under the Mental Health Act. He then became very uncooperative. While the police were walking him out to a police vehicle, he grabbed the railing of the stairs and would not let go. He was told that his behaviour was obstructing the police in their duty. He then broke free and ran away. The police directed him to stop however he continued to run for quite some distance before he was apprehended and taken to the Ipswich General Hospital.
[37] Exhibit R2, Respondent’s Tender Bundle, page 101.
In his written materials, the Applicant said that at the time of this incident he had developed psychosis from using drugs. He had previously decided he wanted to stop using drugs, moved in with his mother and remained off drugs for a month. He then started reconnecting with friends and people in the community and he started playing soccer for a Sudanese team who were training for the refugee soccer competition. He said he felt shocked to be confronted by his family, the police and the mental health team, and he was afraid of missing the soccer competition. Because of his fear and anxiety, he ran towards the exit and pushed a police officer out of his way. After being released from the mental health hospital he stayed with his mother and managed to stay clean from drugs for the remainder of 2015 and the following year.[38]
[38] Exhibit G1, Section 501 G documents, G 16, pages 128 to 129.
While, the written account given by the Applicant suggests that it was his family who caused the intervention, in the hearing, he indicated that it was not his family and he thought it was instigated by the police or the Mental Health Unit.[39]
[39] Transcript, page 42, lines 20 to 26.
The Applicant claimed that he was convicted on the basis that he obstructed, not assaulted, police.[40] This is not consistent with the Applicant’s own evidence that he pushed a police officer. In any event, what matters is the gravamen of the offence which was that he struggled with an pushed the police in the performance of their duties.
[40] Transcript, page 49, lines 17 to 24.
On 18 October 2015, the Applicant was fined for “public nuisance - violent behaviour - in/near licensed premises”.[41] This offence was not put to the Applicant in the hearing although the fine is prima facie evidence that he committed that offence.
[41] Exhibit R2, page 155.
On 7 January 2015 the Applicant was convicted for the assault and contravention of release conditions on. On 2 December 2015, he was sentenced to a term of six months imprisonment which was suspended for 18 months.
On 5 July 2017, the Applicant was found in possession of a knife in a public place. According to police records[42] the police responded to a report of the Applicant threatening the occupant of a dwelling with a large knife, possibly a machete. When the police arrived, the informant told them that the Applicant had threatened him with what he thought was a machete, wanting him to hand over money. The police searched for a person matching the description that the informant gave them without success. When they returned to the address to get further details from the informant, the Applicant arrived, and the police searched him. They found a large machete style knife and a black-handled kitchen knife wrapped in a grey coloured blanket inside his bag. The Applicant said he used the knives for cutting trees and cooking purposes.
[42] Ibid, R2, page 97.
In the Applicant’s written materials, he said he did not remember this event.[43] However, in the hearing, he claimed that the informant, “Dan”, was a known drug dealer and he was going to drive the Applicant to Moorooka where he was going to live. He had the knives in his bag because he was moving residence, and he had other things like clothes in his bag too. He said Dan pointed a gun at him and started swearing “Get out of my house”. He became scared and ran out of the house, went past the police station, and the next minute he heard the police patrolling and he went back to the house. He said he told the police “I think youse might be looking for me”. He told the police his name and, when he was asked what was in his bag, before they even searched him, he told them. He said “Luckily I didn’t open my mouth and tell them, hey he had a gun; he pointed a gun at me.”[44]
[43] Exhibit G1, Section 501 G documents, G 16, page 134.
[44] Transcript, page 73, lines 8 to 29.
Later in his evidence, he said when he and Dan were sitting down inside, he did not know if Dan was playing or being serious, but Dan pointed “his little gun” at the Applicant and the Applicant became scared and took off. He said he did not pull any knives out. He said he thought the police were looking for him because he heard Dan say “That’s him” and that he said to the police “What are youse looking for me?”. When asked why he did not tell the police about the gun, especially given he was in trouble for having knives, he said he was scared and in shock. [45]
[45] Transcript, pages 73 to 74.
The Applicant’s evidence about Dan threatening him with a gun and what the Applicant said to the police is inconsistent in significant details. Having a “little gun” pointed at him in circumstances where he did not know if Dan was joking or being serious is materially different to having a gun pointed at him with Dan swearing and making a threat. Likewise, the Applicant telling the police that he thought they were looking for him is materially different to asking the police if they were looking for him. Further, the Applicant’s explanation for not telling the police that Dan had a gun is unconvincing and it is not apparent why he considered his omission to tell the police to be lucky.
On 3 September 2017, according to police records,[46] the police found the Applicant in possession of a gold iPad mini, a glass pipe, and a clip seal bag containing five yellow tablets. When the police questioned the Applicant about the iPad mini, he said he did not know how the item had come to be in his bag and he had never seen or touched it before. He said the iPad must have been placed in his bag by a friend although he was unable to name the friend. He did not offer the police any proof of purchase. He told the police that the tablets were Valium tablets and he did not have a prescription for them. On 26 September 2017, the Applicant was sentenced to fines for these offences.
[46] Exhibit R2, Respondent’s Tender Bundle, page 91.
In his written materials, the Applicant said that after being clean from drugs for almost two years, he found himself back in the drug scene. He had fallen into a depressive state after seriously injuring his knee while playing soccer and thinking his dreams of becoming a professional athlete were over. He said he honestly did not remember these events.[47]
[47] Exhibit G1, Section 501 G documents, G16, page 129.
In the hearing, the Applicant said he bought the iPad mini from a mate and he was not aware that it was stolen. When it was pointed out to the Applicant that his evidence was inconsistent with the police account of what he had told them at the time, he said that he had lied to the police.[48]
[48] Transcript, page 60, line 35 to page 61, line 5.
It appears that it was around this time that the Applicant was living with Ms V who, according to him, was a drug user.
Between December 2017 and July 2018, the Applicant committed four property and drug related offences, failed to appear on three occasions, and contravened a direction on three occasions. He was dealt with for these offences in three separate sentencing episodes and he received fines.
In his written materials, the Applicant said that he did not remember some of these offences. He said he failed to appear because he was under the influence of drugs.[49]
[49] Exhibit G1, Section 501 G documents, G16, page 130.
On 31 May 2018, according to police records,[50] the Applicant and a female associate were found at an apartment complex near a window that had been smashed. The Applicant was seen carrying a large stick in his hand. The Applicant and his associate said they were at that location to visit a friend, and the Applicant said he had accidentally smashed the window. The Applicant later told the police that he had been throwing a rock in the air and that he had accidentally thrown it through the window. His female associate told the police a different story to explain the smashed window. The Applicant and his associate continued to change their accounts of how the window got smashed. The police suspected that they had smashed the window to break into the property. The police searched the Applicant and found a small quantity of “ice” in multiple clip seal bags and a “silver folding knife with a sharpened edge”.[51] The Applicant told the police that the knife belonged to him and he always carried it on him however he did not offer a lawful or emergent reason for possessing the knife in a public place.
[50] Exhibit R2, Respondent’s Tender Bundle, page 74 to 83.
[51] Exhibit R2, Respondent’s Tender Bundle, page 74.
In the hearing, the Applicant said he and his friend were at the location visiting another friend and he flicked a rock up from the ground which accidentally smashed the window. When it was put to him that “wilful” indicates intention, the Applicant said he pleaded guilty to some offences not knowing the impact it was going to have on him, which appeared to be a reference to the impact on his immigration status.[52]
[52] Transcript, page 67.
With respect to the knife, the Applicant suggested that it had been nail clippers with a knife that folds out. When I pointed out that the knives in nail clippers are not for cutting things and do not have a sharpened edge, the Applicant did not change his evidence. When the Applicant was asked why he always carried nail clippers, he gave a rather garbled, unconvincing answer that included that he did not know if he always carried nail clippers.[53] Further, the police report referred to a knife and not to nail clippers.
[53] Transcript, page 72.
On 19 August 2018, according to police records,[54] police were called to an address by a person who had argued with the Applicant. Police spoke to the Applicant and told him to leave the location and not return. The Applicant later returned to the property and said to the person inside through a window “I’m going to get someone to bash you, bitch”. The person did not respond. The Applicant moved to the front porch and yelled out “Give me my phones back”. The person told the Applicant she did not have his phones. The Applicant told her “I’m going to come in there and get them, I’ll break your window if you don’t give me my stuff”. The Applicant then used a metal bar to smash a window next to the front door and entered through the broken window. The occupant then called 000. The Applicant left before the police arrived. When the police interviewed the Applicant, he denied having broken the window.
[54] Exhibit R2, Respondent’s Tender Bundle, page 57.
In the hearing the Applicant said that he became angry because his belongings were inside. He said he went inside, got his things then left through the front door. He denied using a metal bar to break the window, adding that the next-door neighbour of the occupant was a drug dealer and sometimes they smashed each other’s windows.[55]
[55] Transcript, page 68.
On 4 October 2018, the Applicant committed an assault occasioning bodily harm and an assault/obstruct police offence. According to police records[56], the Applicant and Ms V were inside her unit when the Applicant became angry, stood up and flipped over the coffee table. The corner of the table struck Ms V in the right breast causing pain and discomfort. Books that were on the table also landed on her. The Applicant then stood over her while she was on the ground and hit her across the face several times with open hands. He then took her phone and left.
[56] Exhibit R2, Respondent’s Tender Bundle, pages 48 and 61.
Later, the police arrived and observed the Applicant yelling at them from the street. As they tried to take him into custody he actively resisted. He was warned about obstructing the police multiple times and eventually put in handcuffs. The police asked the Applicant to state his full name and he was warned multiple times that it was an offence to refuse to comply, yet he refused to comply. When the police attempted to search the Applicant, he vigorously obstructed them, shaking about and turning around to stop them from searching him. He was again warned multiple times about obstructing the police. He was put into the rear of a police vehicle. His identity was then confirmed. At the watch house the Applicant became highly aggressive and refused to answer any further questions. He threatened to murder interviewing police. When the police searched the Applicant, they found a used glass pipe and some cannabis in his pocket.[57]
[57] Exhibit R2, Respondent’s Tender Bundle, pages 49 and 53

In an attachment to his revocation request,[58] the Applicant said that he and Ms V were both under the influence of methylamphetamine and alcohol. As the night went on, she started pushing him and he pushed her back. That went on for a little while, and on one occasion when he pushed her, his hand connected with her face. He denied that it was a slap and said he merely pushed Ms V away from him.
[58] Exhibit G1, Section 501 G documents, G13, page 99.
However, in a document he provided on 29 September 2020, he said “I was visiting a friend [Ms V] at her house. We got into an argument and I slapped her.”[59] In the hearing, before the Applicant was specifically asked about this incident, he said that he had prepared that document.[60] Later, when he was asked about that incident, he denied having slapped Ms V and said he only pleaded guilty because he was already in custody and he was advised by a lawyer to plead guilty in order to be released.[61] Even after his previous admission to slapping Ms V was put to him he said that he had not done that.
[59] Ibid, G16, page 148.
[60] Transcript, page 29, lines 25 to 30.
[61] Transcript, page 62.
In relation to the offence involving the police, the Applicant denied having made any threats, but he said that he was messed up with drugs. He said he was running because he had to sign in at Coorparoo police station and the police wanted to take him to Holland Park police station, meaning he would miss his sign-in and go to gaol. He said he had told the police to meet him at the police station and that he was running towards the police station. He did however admit to resisting arrest.[62]
[62] Transcript, pages 64 and 65.
On 6 October 2018, according to police records,[63] a former friend of the Applicant was at her home when the Applicant attended and asked to be let inside. The victim told the Applicant to leave and said that he was not welcome. She was fearful of him and went upstairs to phone the police. While doing so another person in the residence saw the Applicant smash a kitchen window with a baseball bat and enter through the smashed window. Upon seeing the second occupant, the Applicant ran out the front door.
[63] Exhibit R2, Respondent’s Tender Bundle, page 40.
In the Applicant’s written material, apparently with reference to this offence, he said he was playing soccer in his friend’s backyard when he accidentally kicked the ball into the neighbour’s window and broke it. He said the neighbours got angry and accused him of throwing a brick through the window.[64]
[64] Exhibit G1, Section 501 G documents, G16, page 131
In the hearing, the Applicant admitted that he had smashed the window and entered the house. He said he was angry because his belongings, including his phone, were inside and the resident did not want him to enter. He said he needed his phone. He denied that he had used a baseball bat. Rather, he said he used his fist and elbow, with a shirt wrapped around his hand. The Applicant said that he was living at that residence and paying rent.[65]
[65] Transcript, pages 68 to 69.
The accounts given by the Applicant are vastly different, and it may be that in his written materials he meant to refer to a different incident of wilful damage. The Applicant’s admission in the hearing that he deliberately broke the window and entered the premises is broadly consistent with the police account that he broke the window and entered the premises.
On 11 October 2018, according to police records[66], the police saw the Applicant walking down the street and attempted to discuss some outstanding matters with him. The Applicant said he was happy to talk to police but became noticeably agitated and walked away. The police advised that he was under arrest and not free to leave. The Applicant turned around and ran across the street and through a number of yards. The police chased while yelling that the Applicant was under arrest, he was not free to leave and that he was obstructing police by running. The Applicant continued to run away and the police continued to direct him to stop running. Eventually other police officers located and arrested the Applicant. The Applicant was charged with obstructing police and remanded in custody until 6 February 2019 when he was sentenced for multiple offences.
[66] Exhibit R2, Respondent’s Tender Bundle, page 36.
Around a week before the Applicant was sentenced, he was given the drug ‘Subutex’ and he snorted it. Subutex is a heroin substitute and a prescription is required, which the Applicant did not have. He said that after he was released on parole, he told his parole officer what he had done [67]
[67] Transcript, page 94, lines 12 to 30.
On 6 February 2019 the Applicant was convicted and sentenced as follows:
·     for obstruct police x 2 he was sentenced to imprisonment for four months;
·     for assault occasioning bodily harm he was sentenced to imprisonment for 12 months;
·     for wilful damage x 3 he was sentenced to imprisonment for six months;
·     for four drugs offences, possessing a knife in a public place, and trespass he was sentenced to three months imprisonment;
·     for possessing dangerous drugs x 2 he was sentenced to imprisonment for nine months;
·     for possession of a knife in a public place he was fined $500; and
·     for contravening a direction or requirement x 2 he was convicted and not further punished.
The sentences of imprisonment were to be served concurrently, with 118 days of presentence custody deemed as time already served, and immediate release on parole.
One of the submissions the Applicant’s lawyer had made on his behalf in the sentencing proceedings was that methamphetamine use was the causative factor in his offending, that it had been ongoing for a number of years, and that it seemed to have become particularly problematic during 2018.
The remarks of the learned sentencing Magistrate included:
“On more than one occasion, you have shown high levels of aggravation and
aggression. You have been unwilling to assist police and have obstructed them on
multiple occasions. You assaulted a woman who previously regarded you as a
friend. I am sure she is disappointed at your behaviour. I note that, in the past, you
have been able to maintain employment and there is hope that you can again be
employed in the future. Mr Deng, you need to address your drug use. If you do not
do so, you are going to be one of these people who continues to go in and out of
[68] Exhibit G1, Section 501 G documents, G 10, page 53.
prison”[68]
According to police records[69] on 20 March 2019 a Protection Order was made naming Ms V as the aggrieved and the Applicant as the respondent. The application was made by the police and the application form included:
“Police were called by the Aggrieved to attend the address after the Aggrieved called to report that the Respondent had assaulted her. Police attended and spoke to both parties separately. Both gave a similar version. The Respondent had attended the address and the Aggrieved and the Respondent had become involved in a verbal altercation regarding money. The verbal altercation had escalated and the Aggrieved stated to police that the Respondent had struck her to the head. The Respondent denied that the argument had become physical. The Aggrieved does not have any visual physical injuries and declined QAS assistance.”[70]
[69] Exhibit R2, Respondent’s Tender Bundle, page 19
[70] Ibid, page 117.
The order provided that the Applicant was to be of good behaviour towards Ms V and not commit domestic violence against her. The Applicant was present in court when the order was made.
In the hearing the Applicant said that he did not remember the incident, but he did remember a Protection Order being made. He denied having struck Ms V on the head.[71]
[71] Transcript, page 89, line 18 to page 90, line 22.
The Applicant said that he had been living with Ms V but they were not a couple, rather they were friends who had slept together two or three times.[72] I accept this and I find that although the Applicant and Ms V had a domestic and social relationship, they were not intimate partners.
[72] Transcript, page 90, lines 1 to 12.
On 5 April 2019, according to police records,[73] the Applicant was in Ms V’s home with a friend of hers. Ms V was asleep on the lounge room floor and her friend was sitting on the lounge. The Applicant approached the rear door and began knocking. Ms V awoke and reluctantly allowed him in. During a short conversation, Ms V had asked him to leave. He became angered and then asked the friend to leave. He grabbed a PVC pipe and struck the friend across the back around four times. She was sitting on the lounge cowering in a submissive manner trying to shield herself. Ms V tried to intervene, yelled at the Applicant to stop and again asked him to leave. The Applicant punched her twice in the face with his fist, causing her to fall to her knees. He then left. When police attended, they observed a small amount of blood on the front step and observed that Ms V had blood and swelling around her mouth. A broken PVC pipe was found in the driveway. Later that day the Applicant was found in possession of stolen items including a credit card and a surveying device.
[73] Exhibit R2, Respondent’s Tender Bundle, page 31.
In his written materials, the Applicant said at the time of this offence he was under the influence of methylamphetamine and alcohol. He said he was at Ms V’s home when one of her female friends came over. They were getting along quite well, being quite social, when Ms V got jealous and confronted him, leading to an argument. He left and went to his friend’s house two streets away to stay the night. He denied that he physically touched her, and he claimed that he pleaded guilty because his legal representative advised him to.[74]
[74] Exhibit G1, Section 501 G documents, G 16, page 133.
In the hearing, the Applicant adhered to his account except that, rather than saying he and Ms V’s friend had been getting along well, he said this friend caused trouble every time she came over and that he had wanted her to leave.[75]
[75] Transcript, page 70, lines 15 to 24.
According to police records,[76] a week later, on 11 April 2019, Ms V reported that she had been physically assaulted by the Applicant. Ms V said that they had gone for a walk together and after returning home the Applicant had asked to go inside to get his belongings. While Ms V was going inside to get the belongings, the Applicant called her a “stupid bitch” and pulled her to the ground by her hair. Ms V then went inside and started arguing with the Applicant about Easter eggs, at which point the Applicant pulled her to the ground again by her hair before leaving on a skateboard.
[76] Exhibit R2, Respondent’s Tender Bundle, page 19.
In April 2019, the Applicant’s parole was revoked and he was taken into custody.
In his written materials, the Applicant said that he did not grab Ms V and pull her to the ground by her hair. He said he pleaded guilty because he was advised to by his legal representative.[77]
[77] Exhibit G1, Section 501 g documents, G16, page 133.
In the hearing, the Applicant denied all of the allegations except that he went inside and called Ms V a stupid bitch.[78] He specifically denied pulling her to the ground by her hair, but he admitted that he had pushed her out of the way, grabbed his things and left.[79]
[78] Transcript, page 70, lines 40 to 44.
[79] Transcript, page 71, lines 1 to 5.
On 18 July 2019 the Applicant was sentenced to six months imprisonment for the two contraventions of a DVO, and to 18 months of probation for unlawful possession of suspected stolen property, stealing, and possessing property suspected of having been used in connection with the commission of a drug offence.
The remarks of the learned sentencing Magistrate included the following:
“The two breaches of the domestic violence order are clearly the most serious of that offending. You committed those offences while subject to a parole order for an assault occasioning bodily harm on the same person. You went to their home; you engaged in an altercation with another person and then you punched her in the face twice and she sustained injuries as a consequence of that. You’re indeed fortunate that you weren’t charged with more serious offending, such as a further assault occasioning bodily harm. The police have charged you, though, with breaching that domestic violence order. It’s clearly a breach of that order. It would have placed her in pain and distress and caused her a great deal of fear.
Then, to compound matters, on the 11th of April – only a week later – you again returned to her home and on this occasion you grabbed her on two occasions and pulled her to the ground by her hair. Again, a very violent act which would have been very frightening and demeaning for her, again aggravated by the fact that you were on parole for an assault against the same person.
…
I’m told, though, that, whilst you haven’t actually done anything in respect of your rehabilitation, you had engaged with the parole office upon release on parole in February, with a view to try to do something about your drug and alcohol problems but you hadn’t actually got around to doing it.
…
The other offending I should also make mention of, the possession of the credit card in your sock. You fibbed about it; you said it was a friend’s. It clearly wasn’t. It was an odd place to have it. You brought yourself to the attention of the police and the stealing the surveying device and possession of a meth pipe, it’s all consistent with you being a meth addict for a period of time.
… most significantly, you were on parole at the time of an assault occasioning bodily harm against the same person and the offending has, if anything, increased in severity. I’m told the assault occasioning bodily harm resulted in you slapping her in the face. Now you’ve punched her in the face twice and then grabbed her by the hair and thrown her to the ground on another occasion.
The penalty I impose must reflect the very serious nature of that offending but also weigh up the factors in mitigation…I have to impose a penalty and I think there is no alternative but to impose a period of imprisonment. It is an offence of violence and, given the circumstances, a period of imprisonment is the only available sentence to impose.”[80]
[80] Exhibit G1, Section 501 G documents, G10, pages 64 to 65.
The Applicant was moved into immigration detention on 12 January 2020. While there, he was suspected of sticking drugs to the underside of a table in the cafeteria, and he was charged with drug offences. The Applicant denied the allegation, stating that another inmate had put the drugs there, and the charges were withdrawn at the committal hearing stage. Having viewed the footage recorded by a camera in the cafeteria, I consider that the Applicant’s movements certainly looked suspicious, but I was unable to discern whether there was something in his hand before his hand moved under the table. Nor was I able to see the suspicious item being removed from the underside of the table, which could have indicated whether it was removed from the place where the Applicant had his hand, due to SERCO officers standing between the camera and the table. Accordingly, I am not prepared to make a finding that the Applicant placed the drugs on the underside of the table.
Between 2013 and 2016, the Applicant committed several driving offences, including unlicensed driving and failing to display legible red P-plates. When asked to explain his traffic infringements, he said at the time he committed them he was “young and dumb”.[81] When it was pointed out that many of the infringements occurred when he was between 21 and 22 years old and he was asked if he still thought he committed them because he was young and dumb, he said he was a bit ignorant and not thinking, thinking he would get away with it, but now he is taking responsibility.[82]
[81] Transcript, page 79, lines 39 to 43
[82] Transcript, page 80, lines 1 to 17.
The Applicant has been convicted of numerous offences involving violence and there have been reports of him engaging in violent behaviour that did not result in prosecutions. The alleged violent behaviour spans a period from 2012 to 2019. He denies all but a tiny fraction of the alleged violence. The violence that he denies involved, variously, the following victims: his sister, Ms S, Ms G, Ms V, Ms V’s friend and police officers. There does not appear to be any connection between these victims, except between Ms S and Ms G, and between Ms V and her friend. It seems fanciful that all of these people made false allegations of violence against the Applicant.
Further, the contemporaneous police records appear to be coherent and plausible, whereas some of the Applicant’s accounts contained aspects that are implausible and/or inconsistent, as noted above.
More significantly, the Applicant pleaded guilty to all of the offences, not only the ones in respect of which he was remanded in custody.
For these reasons, I find the police evidence to be more reliable than the Applicant’s evidence. Where the two differ, I prefer the police evidence. Accordingly, I am satisfied that the Applicant did everything that the police records allege he did.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).

The Applicant has engaged in violent crimes against numerous people, mainly women. The violence has included choking, hitting, punching, shoving, hitting with objects, and pulling his victim to the ground by the hair. One of the victims, namely Ms S, was the Applicant’s intimate partner, meaning his violence against her was an act of family violence. While Ms V was not an intimate partner, she shared a home with the Applicant, and she was not safe in her own home because of him. All of this violence is very serious conduct.
The Applicant also assaulted and obstructed police officers in the performance of their duties. On one occasion he threatened to murder police officers. Whether or not he meant that threat, the mere act of making a threat to kill a police officer in the performance of their duty is conduct that strikes at the heart of the criminal justice system. This is all serious conduct.
The Applicant forced his way inside a dwelling by smashing the window on three occasions.[83] This is aggressive, intimidating conduct.
[83] 31 May 2018, 19 Aug 2018 and 6 Oct 2018.
In addition to his violent crimes, the Applicant has committed numerous property offences.
Imprisonment is a sentence of last resort in the hierarchy of sentencing options that are available to a court. The Applicant has been sentenced to multiple sentences of imprisonment ranging between three months and 12 months. In the final sentencing episode, the learned Magistrate considered that there was no alternative but to impose a sentence of imprisonment for the Applicant’s violent offending. The custodial penalties imposed reflect the seriousness of the Applicant’s offending.
The Applicant’s offending was frequent, with 37 offences being committed between 2013 and 2019. I do not discern a trend of increasing seriousness because his offending was serious to start with.
The cumulative effect of the Applicant’s repeated violent offending is that many members of the community were physically harmed, threatened and intimidated. The Applicant damaged property and contributed to property crime which deprives people of their personal possessions. The Applicant refused to comply with police directions, and he breached protection orders and parole conditions. The imposition of sentences of imprisonment (in 2015 which was fully suspended and in February 2019) did not deter him from continuing to offend. His behaviour demonstrating a disregard for the criminal justice system.
I do not consider factors (f) or (g) of paragraph 8.1.1(1) of the Direction apply to the Applicant’s offending or circumstances. The relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh heavily against revocation of the cancellation of the Applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non- citizen re-offending; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulate that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
Should the Applicant engage in further violent offending or serious conduct, including smashing his way into a person’s home, the harm to individuals in the Australian community includes physical injury and psychological distress to the direct victims, along with collateral distress to family members and loved ones of the victims including any children who witness the violence.
Should the Applicant engage in further property offences, either stealing or dealing in stolen goods, the harm to individuals in the community includes the loss of personal property and financial loss.
Likelihood of engaging in further criminal or other serious conduct
There is not any independent, expert evidence about the risk that the Applicant will re-offend so I will make an assessment based on the evidence before me.
According to the Applicant, in 2011 he was accepted to the Queensland Academy of Sports and he was training for the 2018 Gold Coast Commonwealth Games. He was given residential accommodation through the Academy where he stayed for two years. In his personal circumstances form he said:
“I was a professional sportsperson and life was going well until I had a relationship breakdown.
Since the breakup in 2015, I didn’t feel normal. My mental health declined. Around 2015/16 mental health at Ipswich was called due to my psychotic behaviour. Paranoia started to set in, the TV was talking to me, I was very reactionary. I was basically gone in the head.
I was heavy drinking and using drugs, namely weed, ice etc. it was a really bad cocktail.
I left my house which I was living in and went to my mum’s home in the hope that I could get clean and get into a better headspace. I always respected my mum and you knew it would be difficult for me to do any drugs while I was there as this would be very disrespectful.
In 2017, I moved out of my mum’s home, I thought I was okay.
Unfortunately I reconnected with bad company and started drinking, clubbing hanging out with old friends, and ended up offending again.” [84]
[84] Exhibit G1, Section 501 G documents, G13 page 99.
The Applicant shared his Academy accommodation with two other people who were also in the Academy.[85] According to him, after leaving that accommodation in 2015, he moved into his mother’s home and for the next two and a half years, he did not use drugs or commit any further offences.[86] It appears that the Applicant moved in with his mother after, or around the time of, the Justice Examination Order in May 2015. In October 2015, he was fined for ‘public nuisance – violent behaviour near a public venue’. The incident with the machete occurred in July 2017. Accordingly, whether or not I have regard to the October 2015 offence (which was not put to the Applicant), he did not go for as long as two and a half years without re-offending.
[85] Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions, page 1.
[86] Ibid, page 2.
The Applicant moved into a place with a friend who did not use drugs. After eight months, his friend moved to Newcastle and he had to find another place to live. Ms V offered him a room but as she and her friends were drug users, he took up drugs again.[87] The Applicant agreed with a proposition put by the Respondent that the main reason behind his criminal offending was his drug use. This accords with what his lawyer said in his sentencing proceedings in February 2019. The Applicant added that the company that he surrounded himself with at the time was a problem,[88] and I accept that the Applicant joined in the drug taking activity of others. He said all of the drugs he used were a problem, not only methamphetamine.[89]
[87] Transcript, pages 92 to 93.
[88] Transcript, page 90, lines 33 to 35.
[89] Transcript, page 91, lines 1 to 15.
When the Applicant was released from prison on 6 February 2019, he intended to avoid drugs, however two or three weeks later he used ice and cannabis.[90]
[90] Transcript, page 94, lines 32 to 45.
He now claims that he has not used drugs since he was last arrested,[91] which was in May 2019, over two years ago. There is not any reliable evidence to the contrary. I accept that the Applicant has not used drugs during this second period in gaol/detention.
[91] Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions, page 3.
While in gaol and detention that Applicant has engaged in the following rehabilitation programs:
·a Kicking Habits program that included modules on drug and alcohol addiction, impacts of crime (victim empathy, consequences of behaviours, taking responsibility, and positive choices for the future), and planning for change (what is a lapse and relapse, managing triggers and challenges, cycle of change model, real-life stories of change);[92]
·a Do-It program;[93] and
·a Circuit Breaker course (New Tools to Mend Relationships, Resolve Conflicts & Stop Blowing Your Fuse)[94].
[92] Exhibit G1, Section 501 G documents, G14, pages 100 to 115.
[93] Ibid, G14, pages 117 to 120.
[94] Ibid, G14, pages 121 to 122.
He claimed he did an anger management course. It is not clear to me whether that was part of the Circuit Breaker course but that is neither here nor there: I accept that he has engaged in some rehabilitation directed at anger management.
The Applicant also referred to receiving support from Pacific Connect & Support Inc which he said really helped him.[95]
[95] Exhibit G1, Section 501 G documents, G13, page 99.
Further, the Applicant has had some counselling sessions with the Queensland Program of Assistance to Survivors of Torture and Trauma (“QPASTT”)[96] and I will return to this later.
[96] Ibid, G16, page 132.
In an attachment to the Applicant’s revocation request, he addressed many of his offences. He denied some, or elements of some, and he expressed regret and remorse for the conduct to which he admitted. In relation to a comment by the learned Magistrate who sentenced him on 6 February 2019, about him showing high levels of aggravation and aggression, the Applicant said that did not reflect his true nature, and that he believed that those behaviours were consistent with methamphetamine addiction. He expressed regret for his behaviour[97], and he said:
“In the past, I have proven to be a good member of society and I endeavour to continue that should I be given the opportunity to go back into the community. I have also proven that I can stay off drugs (a two-year period) as mentioned above. I am confident, using the tools and strategies from the rehabilitation courses together with the support of my family and community organisations, I will avoid drugs in the future.
This whole process (being in Jail and held in Detention Centre) has been a huge wake-up call for me. As a result, I am determined more than ever before, to continue my rehabilitation and be a positive member of society.”[98]
[97] Ibid, G16, page 135.
[98] Ibid, G16, page 136.
In terms of the Applicant’s plans if his visa is returned to him, he would like to help young people in the South Sudanese community to avoid making the mistakes he made. He said:
“I’ll go straight to my mum’s house. I’ll tell her all about my drug use that she is not aware of. I’ll still go to QPASTT for counselling. And if I need to attend a rehab then I’ll do so.”[99]
[99] Transcript, page 95, lines 36 to 40.
The Applicant said he does not think that he needs drug and alcohol rehabilitation now because he has been away from drugs for so long and he has been talking to a counsellor about his problems.[100] He described the QPASTT counselling as having been beneficial mentally.[101] His mother does not approve of drugs or alcohol.[102] She and the Applicant’s two sisters live in Brisbane and his brothers live in Canberra and Melbourne with their families. He accepts that he will need to own up to his mother and sisters about his alcohol and drug use because they will be his main support if he needs help.[103]
[100] Transcript, page 96, lines 1 to 9.
[101] Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions page 3.
[102] Transcript, page 41, lines 34 to 43.
[103] Transcript, page 44, lines 14 to 18.
The Applicant said that in the African community, uncles are seen as father figures and are a huge part of children’s lives. He would like to help his nieces and nephews grow into good members of the community, and to help them learn from his own horrible situation.[104] The Applicant’s mother does not speak English: he would like to remain in Australia to support her when she gets older, sharing that responsibility with his siblings. He said he is very close to his brothers and sisters as they all went through tough times when they were younger in the refugee camps, and they share a close bond.[105]
[104] Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions page 4.
[105] Ibid, page 5.
The Applicant intends to get a job, “Anything that can put money on the table for my family, for my mum and my little nephews and nieces”.[106] He has some connections through soccer and sport who could help him in that regard.[107]
[106] Transcript, page 47, lines 24 to 34.
[107] Transcript, page 47, lines 37 to 44.
The Applicant has no desire to contact Ms V.[108]
[108] Exhibit G1, Section 501 G documents, G 16, page 139.
Before me is a letter of support from the president of the Dinka Bor Community Association in Queensland. He claims to have known the Applicant’s family for eight years. He said he has spoken to the Applicant who was very apologetic and that he understood how his behaviours had hurt innocent people in the Australian community. He said the Applicant had promised to stay away from bad people and stop drinking alcohol for good.[109]
[109] Exhibit G1, Section 501 G documents, G 15, pages 123 to 124.
I am unable to give much weight to this letter. The assertion that the Applicant understands how his behaviour hurt innocent people does not sit comfortably with the Applicant’s denial of much of his violent behaviour. It is also not apparent how well the writer knows the Applicant, as opposed to the length of time he has known his family.
One of the Applicant’s brothers provided a letter of support, dated 11 May 2021, which is expressed to be on behalf of the whole family.[110] He said the family had no connections in South Sudan and that their mother is extremely stressed about the Applicant’s situation and it is affecting her health. He asserted that the Applicant was very remorseful for his “crime” and has insight into how it has affected others and himself. He considered that his siblings, who are married and settled, could be a positive influence on the Applicant, and he said the Applicant has the entire family’s support.
[110] Exhibit A3 Letter from Applicant’s Brother dated 11 May 2021.
In oral evidence, the Applicant’s brother said that he did not know what crime the Applicant committed that resulted in him being imprisoned and having his visa cancelled.[111] The last time he saw the Applicant in person was in 2016, and he has been in regular telephone contact with him while he has been in detention.[112] When asked about their father, he said he did not think he was still in South Sudan and does not know where he is. When asked if they had any family whatsoever in South Sudan, he said maybe there were relatives.[113]
[111] Transcript, page 118, lines 1 to 5.
[112] Transcript, page 118, lines 25 to 38.
[113] Transcript, page 119, lines 1 to 27.
When asked how the Applicant’s current predicament was affecting their mother’s health, he did not give responsive answers, merely saying “extremely” and “make her sick”. When asked how he could tell that she was sick he said “Very. I am even sick myself”. When asked how he was sick, he again did not give a responsive answer.[114]
[114] Transcript, page 121, lines 1 to 9.
I am unable to give much weight to the Applicant’s brother’s evidence. Living in Canberra, he is not in a position to be of much help to the Applicant. Further, he is not aware of the nature or extent of the Applicant’s offending. There is no medical evidence before me that supports his contention that the Applicant’s predicament is making his mother or him sick and I do not accept his evidence in that regard.
There is a letter before me from Ms Raewyn Burton of Pacific Connect and Support Inc.[115] In the letter, Ms Burton indicated that the Applicant accessed the service in prison and in immigration detention on a weekly basis, he has been very open regarding his past mistakes, and he has been able to identify many areas which have been of concern to him about his life, his family and what he would like to do to better himself and those around him. She said she had seen major changes during the Circuit Breaker program which her service facilitated. She opined that the Applicant now knows how to reach out and access help when he needs it. She believes that he is committed to making a better life for himself. Ms Burton was unfortunately not available to give evidence during the hearing so it was not possible to explore matters such as the extent of her knowledge about the Applicant’s offending. However, I accept that the Applicant voluntarily sought assistance from Pacific Connect and Support, engaged well, and took steps towards bettering himself.
[115] Exhibit A5, Letter from Raewyn Burton (Pacific Connect & Support Inc) dated 6 June 2021
There is a letter before me, dated 28 May 2021, from Ms Boyd-Ford who is a counsellor at QPASTT. She holds a Bachelor of Psychological Science and a Masters of Counselling. She has four years of experience working in trauma-informed mental health services providing services to asylum seekers and refugees. She said the Applicant initially self-referred to the service in May 2020, however there was some delay, and he had completed five counselling session to date. In his self-referral, he had reported experiencing intense/persistent emotional distress, aggressive behaviour or persistent anger, and some other symptoms. Ms Boyd-Ford’s report did not address the Applicant’s risk of reoffending but rather the Applicant’s treatment in terms of dealing with past trauma.
Ms Boyd-Ford gave evidence in the hearing. She was asked about a recommendation she made in her letter,[116] that the Applicant continue to engage with QPASTT and focus on trauma experiences and their impact on his mental health and personal relationships, along with ongoing engagement with specialised drug and alcohol services. She said she meant that the Applicant would engage separately with specialised drug and alcohol services, adding that she would recommend that somebody else work on that while she focused on trauma processing.[117] She said that moving back into the community would bring up stressors and that individual, tailored support would give the Applicant the best opportunity for recovery.[118]
[116] Report of Ms Caitlin Boyd-Ford, Counsellor, Queensland Program of Assistance to Survivors of Torture and Trauma (QPASTT) dated 28 May 2021, page 5.
[117] Transcript, page 128, lines 20 to 33.
[118] Transcript, page 129, lines 1 to 18.

The Tribunal is not required to carry out the same level of analysis in this matter as would be expected in the assessment of a Protection visa application. However, I must give meaningful consideration to clearly articulated claims of harm or hardship made by the Applicant, including those claims, which if made out, would result in Australia owing non-refoulement obligations in respect of the Applicant. I must assess the risk of harm and/or hardship that the Applicant claims he will face if removed to South Sudan in its own right. That assessment will also inform my assessment of whether the Applicant is someone to whom Australia owes non-refoulement obligations. A risk of harm or hardship that is not clearly articulated but arises on the evidence also warrants consideration.
The Applicant claimed that, if he is removed to South Sudan he will be at risk of harm. He said:
“…if I am deported back to South Sudan, my life is in serious danger due to being classified as an “outsider”. I have no family or anyone I know in South Sudan. I can’t speak the language fluently and would struggle with basic requests. I wouldn’t even know anything about the country, all I know is that there are still tribal wars and serious dangerous violence and harm.”[131]
[131] Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions, page 4.
In addition, the Applicant expressed concern about the healthcare, if any, that would be available to him and he said he would not know where to begin to start his life all over again. He added that South Sudan is extremely dangerous and violent, he is unaware of whether his father is still in the country and if he has hatred towards him for leaving, and he does not know about the customs and cultures.[132]
[132] Ibid, page 5.
Having read a country information report on South Sudan by the Department of Foreign Affairs and Trade[133] (“DFAT report”), the Applicant indicated that he was concerned about the following matters:
·the extremely weak and underdeveloped economy;
·the extremely poor access to healthcare;
·the low participation in education;
·high unemployment;
·the extremely volatile security situation;
·discrimination along racial lines including targeting of persons of the Applicant’s ethnicity (Dinka) by the Sudan People’s Liberation Army-in-Opposition; and
·some other subjects that do not seem to relate directly to the Applicant for example the situation for women and children, arbitrary deprivation of life, the death penalty and torture.
[133] Exhibit R5, Department of Foreign Affairs and Trade, ‘DFAT Country Information Report – South Sudan’ October 2016. (“DFAT report”).
The Applicant also noted that his thoughts of being a father one day were at risk because of the third world living standards in South Sudan.[134]
[134] Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions pages 6 to 8.
In accordance with paragraph 9.1(1) of the Direction, I will assess those claims against the tests enunciated in the Act. Section 36 of the Act relevantly provides that:
(1A) An Applicant for a protection visa must satisfy:
(a) …
       (b) at least one of the criteria in subsection (2).
       …
(2)    A criterion for a protection visa is that the Applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm;..
…
(2A) A non-citizen will suffer significant harm if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
            (b) the death penalty will be carried out on the non-citizen; or
            (c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.
(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
…
(c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
Section 5H(1)(a) of the Act relevantly provides that a person is a refugee if he or she is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country.
Section 5J of the Act provides that a “well-founded fear of persecution” involves a number of components which include that:
·the person fears persecution for the reason/s of race, religion, nationality, membership of a particular social group or political opinion;
·the reason/s must be the essential or significant reason/s for the persecution;
·there is a real chance that the person would be persecuted;
·the real chance of persecution relates to all areas of the receiving country;
·the persecution involves serious harm and systematic and discriminatory conduct;
·the person does not have a well-founded fear of persecution if effective protection measures are available to the person; and
·the person does not have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour, other than certain types of modification.
The DFAT report was published in October 2016 and I do not have more recent country information on South Sudan before me. According to the DFAT report:
·South Sudan was established in 2011 after protracted conflict between the southern and northern regions of Sudan. Following independence, it was estimated that people of Dinka ethnicity made up around 35.8% of the population[135];
·The capital, Juba, is the only part of South Sudan that has anything resembling a formal economy.[136] Eighty-five percent of the population undertake unpaid work, mainly in agriculture[137];
·Most of the population have extremely poor access to health care[138];
·South Sudan is highly unstable with high crime and societal violence. There is widespread official and societal discrimination on the basis of ethnicity.[139] While the government has control in Juba, the relative stability there is extremely fragile[140];
·The Dinka are a large group of several closely related sub-ethnic groups. They are a branch of the Nilotic people. Nilotics form the majority of South Sudanese people.[141] Dinkas face a high risk of societal discrimination and violence in conflict affected areas but they face a low risk in Juba because the Dinka controlled government has almost total control over Juba[142];
·Christianity is the dominant religion in South Sudan.[143] It is unlikely that a person would suffer discrimination due to their religion[144]; and
·Conditions for returnees differ depending on the individual’s ethnic or sub-ethnic linkages and whether the person has or has been perceived to question the authority of the Government. Given the supremacy of the Dinka ethnic group in Juba, Dinkas would likely be able to return to Juba without facing discrimination or violence.[145]
[135] Exhibit R5, DFAT Report paragraph 2.9.
[136] Ibid, paragraph 2.12.
[137] Ibid, paragraph .2.14.
[138] Ibid, paragraph 2.17.
[139] Ibid, paragraph 3.1.
[140] Ibid, paragraph 2.31.
[141] Ibid, paragraph 3.5.
[142] Exhibit R5, DFAT Report, paragraph 3.7.
[143] Ibid, paragraph 3.15.
[144] Ibid, paragraph 3.18.
[145] Ibid, paragraph 5.20.
The DFAT report referred to instances of killings and serious societal violence against civilians in conflict affected areas, and to the torture of perceived members of the
Sudan People’s Liberation Movement-In-Opposition (SPLM-IO) by the government.
I note that the Applicant did not claim that he would be harmed on the basis of his religion – he is Christian, which is the dominant religion - and having regard to the country information, I am not satisfied that there is a real chance that he would be.
I will consider the risk of harm based on the Applicant’s ethnicity or being perceived as an outsider. When he was asked if he intended to get involved in tribalism or tribal violence, he said no.[146] There is no evidence that the Applicant has questioned the authority of the government, that he would be perceived to have done so or that he intends to do so. Nor did he put forward any reason why he could not settle in Juba if he were deported, and I am satisfied that he could settle there. The Applicant was asked how people in South Sudan would identify him as an outsider. He said because of his accent and the kind of knowledge that he has.[147] However, the DFAT report did not mention discrimination on the basis of having spent time outside South Sudan and it indicated that a Dinka would likely be able to return to Juba without facing discrimination or violence.
[146] Transcript, page 105, lines 9 to 11.
[147] Transcript, page 105, lines 1 to 5.
Given the Applicant could settle in Juba, I am not satisfied on the evidence before me that there is more than a remote chance that he would suffer serious harm on the basis of his ethnicity or for any other reason that is personal to him, or that he would face a real risk of significant harm within the meaning of s 36(2A) of the Act that is not one that is faced by the general population. I am not satisfied that the Applicant engages Australia’s non-refoulement obligations for any reason put forward by him or that arises on the evidence.
I do, however, accept that the Applicant would be at risk of generalised violence and crime in South Sudan.
The Applicant has not applied for or been the holder of a Protection visa. Accordingly, it is open to him to make an application for a Protection visa if I do not revoke the cancellation of his visa.
The Applicant claimed to be stateless because when he left Sudan, South Sudan did not exist, so he does not have citizenship of that country. However, according to the article “Statelessness and Mass Expulsion in Sudan: A Reassessment of the International Law”[148], Article 8(1) of the South Sudanese Nationality Act 2011 provides that a person is considered to be a South Sudanese national by birth where, among several other grounds, the person belongs to one of the ethnic communities of South Sudan, meaning that every Dinka inside or outside South Sudan automatically acquires South Sudanese citizenship by operation of law. The Applicant claims to be Dinka from the country that is now South Sudan, he speaks Dinka and he has a letter of support from the President of the Dinka Bor Community Association in Queensland who claims to have known his family for several years. I am not satisfied that the Applicant would be denied citizenship of South Sudan. I am not satisfied that the Applicant is stateless.
[148] Exhibit R6, M Sanderson ‘Statelessness and Mass Expulsion in Sudan: A Reassessment of the International Law', [2014] (Winter) Northwestern Journal of International Human Rights, 12(1),.74-114.
The Applicant did not point to any matter that could result in him being detained for a prolonged or indeterminate period, but appealing an adverse decision or applying for a Protection visa would necessarily prolong his detention. He did not claim any specific hardship arising from his being in detention.
On the basis that the Applicant will be at risk of generalised violence and crime in South Sudan, this Other Consideration (a) weighs to a limited extent in favour of revocation.
(b) Extent of Impediments if Removed
As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is a 27-year-old man who is able bodied and does not claim to have any diagnosed medical or mental health conditions. He said he has not seen a psychiatrist since he was admitted to the Ipswich Mental Health Unit in 2015. He described his mental health as good and he said the only medication he takes at the moment is medication that helps him sleep when he is feeling particularly stressed.[149]
[149] Transcript, page 24.
The Applicant lived in Sudan until around the age of six. He has no memory of life there. English is the official language of South Sudan. Before South Sudan’s independence Arabic was the official language and it is still widely spoken, especially in Juba. Other regional and tribal languages are also very common, particularly outside of Juba.[150]
[150] Exhibit R5, Department of Foreign Affairs and Trade, ‘DFAT Country Information Report – South Sudan’ paragraph 2.12.
The Applicant spoke Dinka in the refugee camp and he speaks it with his mother who cannot speak English.[151] He is unable to read or write in Dinka.[152] He said there are five different dialects in Dinka and he likened the difference between these dialects to the difference between Australian English, United Kingdom English and American English.[153] The Applicant speaks very good English and he is literate in English. The Applicant claimed that the dominant language spoken in South Sudan is Arabic. He said it is the common language that is spoken in schools and on the TV.[154] However, he conceded that his mother, who is from (what is now South) Sudan, does not speak Arabic. He agreed that Dinka is spoken in the community.[155]
[151] Transcript, page 26.
[152] Transcript, page 34, lines 10 to 15.
[153] Transcript, page 34, lines 18 to 24.
[154] Transcript, page 34, line 32 page 35, line 48.
[155] Transcript, page 35, lines 15 to 17.
I am satisfied that the Applicant would be able to communicate with other Dinka in South Sudan and that his fluency in English would assist him. However, particularly in Juba, the fact that he does not speak Arabic could create a language barrier in some situations.
When asked if he knew any South Sudanese culture, the Applicant indicated that he knows some traditional dance, some traditional Sudanese food that his mother cooks, and he is Christian.[156] His limited knowledge of South Sudanese culture will assist him somewhat however the fact remains that he is not familiar with customs and practices in South Sudan.
[156] Transcript, page 36, line 34 to page 39, line 7.
The Applicant does not have any family that he knows of in South Sudan. His mother will not talk about life there or her family. I am satisfied that the Applicant has no familial support or social support in South Sudan. Given his Christianity and ability to speak Dinka, he may find social support in a church community. I am satisfied that it will be difficult for the Applicant to earn a living in such a poor economy, and that he will not be able to access financial support from the government. The standard of medical care and other services is very poor in South Sudan. It will be very difficult for the Applicant to establish himself and maintain basic living standards. I must consider those matters in the context of what is generally available to other citizens of South Sudan.
This Other Consideration (b) weighs heavily in favour of revocation of the mandatory cancellation.
(c) Impact on victims
This Other Consideration (c) requires a decision-maker to assess the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims. This Other Consideration (c) is therefore neutral.
(d) Links to the Australian Community
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
·the strength, nature, and duration of ties to Australia; and
·the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
The Applicant came to Australia when he was a 12 year old child and he has lived in the wider Australian community (not in prison or immigration detention) for around 13 years. He committed his first criminal offence seven years after arriving in Australia. He is therefore entitled to some limited weight under paragraph 9.4.1(2)(a) of the Direction.
The Applicant claimed that from 2016 to 2017 he worked on an automotive assembly line, and from 2017 to 2018 he made canvases for an art gallery.[157] I accept this. He does not claim to have done any voluntary work in the community. His employment also affords him some limited weight under paragraph 9.4.1(2)(a) of the Direction.
[157] Exhibit G1, Section 501 G documents, G13, page 95.
In terms of ties to the community, the Applicant played drums in a choir at the Ipswich City Anglican Church from 2006 until 2011, and he attended church almost every weekend during that time.[158] He played semi-professional football for the Brisbane City Football Club for around four years, before he moved to another club, then he took a break from football.[159] He played for a Sudanese football team in the Refugee Cup. He was also in the Queensland Academy of Sport for long jump and triple jump for around two years. He has not produced letters of support from any people from church or sporting organisations so I am not satisfied that he has strong ties from those past pursuits, however that is not to say that he does not have some positive social relationships in the community.
[158] Transcript, page 25, lines 15 to 47.
[159] Transcript, page 40, lines 30 to 44.
The Applicant’s mother and six siblings live in Australia and they have the right to reside here on a permanent basis. He is not aware of any extended family inside or outside Australia.
The Applicant claimed that he and his siblings were very close. He is in weekly telephone contact with his sisters[160] and his brothers.[161] When he was in the community he used to help one of his sisters with her childcare business by picking up the children she minded and bringing them to her, then taking them back home.[162] He used to visit his mother’s home for a family meal once per week or fortnight.
[160] Transcript, page 23, lines 1 to 26.
[161] Transcript, page 23, lines 30 to 35.
[162] Transcript, page 28, lines 4 to 15.
However, no-one in the Applicant’s family is currently aware of his drug use or of the nature and extent of his criminal offending. Nor did they go to much effort to support him in these proceedings, leaving it to one brother who took it upon himself to write a letter of support on behalf of all of them. It is not apparent to me whether all members of the Applicant’s family agreed on the contents of the letter or even knew about it.

I am not satisfied that the Applicant has particularly close ties to any of his family members, although I do accept that the Applicant is part of a cohesive family unit.
Of the impact that his deportation would have on his family, the Applicant said:
“I am the baby of the family. My family are devastated about me ending up in trouble, imprisoned, and in detention already. My mum is getting older and she is very stressed, especially because of where we came from. I’m sorry I have put her through all of this. I would hate to think of what will happen to her if I get a negative decision.”[163]
[163] Exhibit G1, Section 501 G documents, G13, page 93.
The Applicant’s brother gave evidence that the Applicant’s current predicament was affecting his mother and the whole family. I am satisfied that the Applicant’s family, particularly his mother, will suffer some emotional hardship if the Applicant is returned to South Sudan. However, I am not satisfied that the health of his other or siblings would be impacted. Nor am I satisfied that they would be financially impacted. While the Applicant said he wanted to help his siblings to support his mother who cannot speak English, there is no evidence that she does not currently have the help she needs in the Applicant’s absence. I have already accepted that non-revocation of the reviewable decision would be against the best interests of his nieces and nephews in Brisbane to a limited extent.
The Applicant’s social and familial links, and the impact on his family of his removal from Australia, weigh moderately in his favour under paragraph 9.4.1(2)(b) of the Direction.
Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. No weight can be allocated under paragraph 9.4.2 of the Direction.
Conclusion: Other Consideration (d)
Overall, I am satisfied that the Applicant’s links to the Australian community weighs moderately in favour of revocation.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: weighs to a limited extent in favour of revocation;
(b)extent of impediments if removed: weighs heavily in favour of revocation;
(c)impact on victims: neutral; and
(d)links to the Australian community: weights to a moderate extent in favour of revocation.
CONCLUSION
I am now required to weigh all of the Considerations in accordance with the Direction.
In considering whether there is another reason to exercise the discretion afforded by s501CA(4) of the Act to revoke the mandatory visa cancellation decision, I find as follows:
·Primary Consideration 1 weighs heavily in favour of non-revocation;
·Primary Consideration 2 weighs heavily in favour of non-revocation;
·Primary Consideration 3 weighs to a limited extent in favour of revocation;
·Primary Consideration 4 weighs heavily in favour of non-revocation; and
·To the extent that Primary Consideration 3 and Other Considerations (a), (b) and (d) weigh in favour of revoking the mandatory visa cancellation decision, they cannot, even when combined, outweigh Primary Considerations 1, 2 and 4.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 225 (two hundred and twenty-five) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy

..............................[SGD]..........................................
Associate
Dated: 5 July 2021

Date of hearing: 14, 15 and 17 June 2021

Applicant:

By videoconference

Solicitor for the Respondent
Mr Jake Kyranis

Sparke Helmore

ANNEXURE A - EXHIBIT LIST

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

G1

Section 501 G-Documents (G1 to G21 page 1 to page 180)

R

-

28 April 2021

A1

Applicant’s Statement of Facts, Issues and Contentions

A

23 May 2021

24 May 2021

A2

Letter from Legal Aid dated 4 February 2021

A

4 February 2021

24 May 2021

A3

Letter from Mr Bol Deng (Applicant’s Brother)

A

11 May 2021

28 May 2021

A4

Report of Ms Caitlin Boyd-Ford, Counsellor, Queensland Program of Assistance to Survivors of Torture and Trauma (QPASTT)

A

28 May 2021

5 June 2021

A5

Letter from Raewyn Burton (Pacific Connect)

A

6 June 2021

6 June 2021

R1

Respondent’s Statement of Facts, Issues and Contentions

R

4 June 2021

4 June 2021

R2

Respondent’s Tender Bundle (R1 to R5, page 1 to page 201)

R

-

4 June 2021

R3

CCTV Footage from Brisbane Immigration Transit Accommodation Centre

R

-

4 June 2021

R4

Departmental Screenshot

R

-

8 June 2021

R5

Department of Foreign Affairs and Trade, ‘DFAT Country Information Report – South Sudan’

R

-

15 June 2021

R6

M Sanderson ‘Statelessness and Mass Expulsion in Sudan: A Reassessment of the International Law', [2014] (Winter) Northwestern Journal of International Human Rights, 12(1),.74-114.

R

-

15 June 2021

[2021] AATA 2097

5 July 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1 to G21 page 1 to page 180)	R	-	28 April 2021
A1	Applicant’s Statement of Facts, Issues and Contentions	A	23 May 2021	24 May 2021
A2	Letter from Legal Aid dated 4 February 2021	A	4 February 2021	24 May 2021
A3	Letter from Mr Bol Deng (Applicant’s Brother)	A	11 May 2021	28 May 2021
A4	Report of Ms Caitlin Boyd-Ford, Counsellor, Queensland Program of Assistance to Survivors of Torture and Trauma (QPASTT)	A	28 May 2021	5 June 2021
A5	Letter from Raewyn Burton (Pacific Connect)	A	6 June 2021	6 June 2021
R1	Respondent’s Statement of Facts, Issues and Contentions	R	4 June 2021	4 June 2021
R2	Respondent’s Tender Bundle (R1 to R5, page 1 to page 201)	R	-	4 June 2021
R3	CCTV Footage from Brisbane Immigration Transit Accommodation Centre	R	-	4 June 2021
R4	Departmental Screenshot	R	-	8 June 2021
R5	Department of Foreign Affairs and Trade, ‘DFAT Country Information Report – South Sudan’	R	-	15 June 2021
R6	M Sanderson ‘Statelessness and Mass Expulsion in Sudan: A Reassessment of the International Law', [2014] (Winter) Northwestern Journal of International Human Rights, 12(1),.74-114.	R	-	15 June 2021