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

[2022] AATA 3229

DGKW and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3229 (5 October 2022)

Division:GENERAL DIVISION

File Number:          2022/5916

Re:DGKW

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member D. J. Morris
Deputy President D. Dragovic

Date:5 October 2022

Place:Melbourne

Pursuant to section 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the reviewable decision dated 13 July 2022.

In place of the decision so set aside, the Tribunal decides that the Applicant’s Class XB Subclass 202 Global Special Humanitarian visa is not cancelled.

........................................................................

Senior Member D. J. Morris

Catchwords

MIGRATION – applicant born in Egypt but entitled to citizenship of South Sudan – applicant held Class XB subclass 202 global special humanitarian visa – visa cancelled because of substantial criminal record – delegate refused to revoke mandatory cancellation – consideration by Tribunal – preliminary questions – is youth detention ‘imprisonment’ – youth detention fulfils definition of imprisonment – is Thornton decision on treatment of offending by a minor relevant – Thornton distinguished when no offending in Queensland – ministerial direction No 90 – primary considerations – protection of the Australian community – offending all committed as a child – best interests of minor children in Australia – expectations of Australian community – other considerations – international non-refoulement obligations – extent of impediments if removed – impact on victims – links to the Australian community – prospect of prolonged detention – decision under review set aside and new decision substituted

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), ss 33A, 35
Children, Youth and Families Act 2005 (Vic), ss 360, 412
Crimes Act 1914 (Cth), s 85ZR
Migration Act 1958 (Cth), ss 499, 500, 501, 501CA
Penalties and Sentences Act 1992 (Qld)
The Nationality Act, 2011 (South Sudan)
Transitional Constitution of the Republic of South Sudan, 2011 (South Sudan)

Youth Justice Act 1992 (Qld), s 183

Cases

Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Galuak and Minister for Immigration and Border Protection; Re: [2018] AATA 2301
Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501
Hartwig v P. E. Hack [2007] FCA 1039
Nuon v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 653
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17

Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23

Secondary Materials

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)
Convention Relating to the Status of Refugees, opened for signature on 28 July 1951; 189 UNTS 137 (Entered into force 22 April 1954)
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)

Migration Act 1958 – direction under s 499 – Direction No. 90 – visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under s 501CA (commenced 8 April 2021)

REASONS FOR DECISION

Senior Member D. J. Morris
Deputy President D. Dragovic

5 October 2022

1. The Tribunal made an order under s 35 of the Administrative Appeals Tribunal Act1975 (‘the AAT Act’) prohibiting the publication of the name of the Applicant in this matter. He will be referred to as ‘DGKW’. Where a document refers to him by name, the anonym will be substituted. Other details such as the names of family members will be anonymised in these reasons.

2. The Applicant was born in December 2001 in Cairo, Egypt, to parents who were from the southern part of the then territory of the Republic of Sudan. He arrived in Australia in 2009 in company with his parents and siblings as the holder of a Class XB Subclass 202 Global Special Humanitarian visa.

3. That visa was cancelled in January 2020 because a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs was satisfied that DGKW had a ‘substantial criminal record’ within the terms of s 501(3A) of the Migration Act 1958 (‘the Act’). DGKW was invited to make representations to the Department of Home Affairs (‘the Department’) in relation to whether there was ‘another reason’ under section 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of his visa.

4. On 13 July 2022, a delegate of the new Minister for Immigration, Citizenship and Multicultural Affairs decided not to revoke the mandatory cancellation of DGKW’s visa. That decision was emailed to the Applicant on the same day under cover of a letter erroneously dated 13 July 2021, but it was not in dispute that the notification was properly received.

5. DGKW lodged an application for review by the Tribunal under s 500(1)(ba) of the Act. The decision before the Tribunal is the delegate’s decision of 13 July 2022 not to revoke the cancellation of the Applicant’s visa.

   HEARING

6. The hearing took place on 20, 21 and 28 September 2022. The Applicant was in Yongah Hill Immigration Detention Centre (‘IDC’) and appeared by video link as permitted by s 33A of the AAT Act. He was represented by Mr Fardin Nikjoo of Nikjoo Lawyers. DGKW gave evidence and was cross-examined by Mr David Brown of The Australian Government Solicitor, representing the Respondent. The following other witnesses gave evidence: Ms AA, the Applicant’s mother; Ms Laura Cady, teacher; Mr Matthew Hyde, principal, and Mr Darren Stanton, a teacher at Parkville College; Ms Para Grigorakis, former case worker; Ms AM, sister; Ms BM, sister; Mr PM, brother. One witness, the Applicant’s mother, was assisted by an interpreter in the Dinka language.

7. The Tribunal took into evidence the exhibits listed in the annexe to these reasons. The Applicant also lodged a Statement of Facts, Issues and Contentions (‘ASFIC’) as did the Respondent (‘RSFIC’). The Applicant lodged a further written submission in reply. The Tribunal also took these documents into account.

   Two questions before the Tribunal

8. The Tribunal must first decide whether DGKW passes the character test. If we are satisfied that he does, then the cancellation of the visa is set aside (see s 501CA(4)(b)(i) of the Act). However, if we decide that DGKW does not pass the character test, then there is a second question to decide: whether we are satisfied that the discretion is enlivened that the cancellation of the visa should be revoked for another reason under section 501CA(4)(b)(ii) of the Act.

   Does the Applicant pass the character test?

9. Section 501(7)(c) of the Act provides that a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more. Section 501(3A)(a)(i) of the Act provides that the Minister must cancel a visa that has been granted to a person if the person has a ‘substantial criminal record’ and is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against the law of the Commonwealth, a State or a Territory: s 501(3A)(b) of the Act.

10. Before us was a nationally coordinated criminal check compiled by the Australian Criminal Intelligence Commission dated 6 January 2020 (‘ACIC Report’, GD, pp 38-41) in relation to DGKW. The ACIC Report relevantly records that DGKW appeared before the Children’s Court in Victoria in June 2019 and was convicted of the offence of Armed Robbery and ordered to be detained in a Youth Justice Centre (‘YJC’) for 18 months.

11. It was not in contention that DGKW was detained in a YJC at the time his visa was cancelled.

    Threshold submissions from Applicant

    Is detention in a Youth Justice Centre ‘imprisonment’ in terms of the Act?

12. Mr Nikjoo contended that DGKW has never been sentenced to a term of imprisonment in the terms intended by ss 501(3A)(b) and 501(12) of the Act, because, he contended, being detained under a Youth Detention Order (‘YDO’) in Victoria is governed by s 412 of the Children,Youth and Families Act 2005 (Vic) (‘CYF Act’) and, further, that YJCs are not punitive detention but, because of the terms of the Victorian legislation governing them, are protective and supportive. Mr Nikjoo also submitted that the intention of the Victorian Parliament when issuing YDOs was to rehabilitate rather than to punish the child. He noted that the CYF Act does not contain references to ‘punishment’ in its provisions.

13. Mr Nikjoo submitted that the Tribunal should find that DGKW did not fail the character test and that the Respondent should concede this point and reinstate the Applicant’s visa. In the alternative, as submitted by Mr Nikjoo, the Tribunal should find that this fact is ‘another reason’ under s 501CA(4) of the Act to revoke the cancellation of the visa.

14. Mr Brown, for the Minister, submitted that the Federal Court of Australia decision in Nuon v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 653 (‘Nuon’) goes against this submission and that while submissions could properly be made by the parties about the weight the Tribunal should attach to an applicant’s offending as a minor, the fact remains that he was detained in a YJC when his visa was cancelled.  Mr Brown submitted that Nuon is authority that such detention is ‘punitive’ detention, which is, therefore, ‘imprisonment’ as defined in s 501(12) of the Act. The Minister submitted that the requirements of s 501(3A)(b) of the Act were therefore satisfied.

    Consideration

15. The Tribunal told the parties that we rejected the Applicant’s submissions in this regard for two reasons. The first is the authority in Nuon, which binds the Tribunal. The facts, in that case, are like the criminal history of DGKW. Mr Nuon had been detained in a YJC for 18 months by order of the Children’s Court of Victoria. In considering the submission that the detention of Mr Nuon as a child should not have invoked the power in section 501(3A)(b), Middleton J observed at [69] to [71]:

    Further, the definition of “imprisonment” at s 501(12) is not an exhaustive definition, to which issue I will return. Further, even assuming that the sentence imposed on the Applicant must be “punitive” in nature to be “imprisonment” as defined in the Act, in my opinion the Applicant was clearly subject to “imprisonment” in the nature of “punitive detention”.

    As defined in the Short[er] Oxford English Dictionary, the term “imprison” means “to detain in custody; to confine”, and the term “punitive” means “awarding, inflicting or involving punishment”. The term “punish” means “1a To cause (an offender) to suffer for an offence; to subject to judicial chastisement as retribution or requital, or as a caution against further transgression; to inflict a penalty on. b To inflict a penalty for (something).” It can be seen that the definitions 1a and 1b of “punish” have a different emphasis, even though both refer to inflicting a penalty. Definition 1b refers to almost an objective or neutral concept of punishment that would seem to include almost any penalty or sentence imposed as a consequence of a finding of guilt for a criminal offence. Definition 1a connotes a stronger punitive purpose underlying the sentence. In my view, having regard to the following reasons, the definition which directs attention to inflicting a penalty on or for something at both 1a and 1b more relevantly informs the meaning of “punitive detention” within the meaning of imprisonment at s 501(12) of the Act.

    Therefore, I do not accept as a matter of general understanding that the detention of juvenile offenders in Victoria can involve no element of punishment whatever (sic). As observed by Brennan, Deane and Dawson JJ in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, at 27, subject to some limited exceptions not applicable here, the “involuntary detention of a citizen in custody by the State is penal or punitive in character and…exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt”.  The emphasis of their Honours was detention following upon a judicial determination. Not all detention is “punitive detention” under the Act.

16. His Honour went on to say, at [80]:

    In my view, although the [Children, Youth and Families Act 2005] may consistently distinguish between a child’s detention and imprisonment, whether as a matter of clarity or by a deliberate effort to avoid stigmatising further a child’s detention, and generally avoids use of the word “punishment”, it does not overturn the clear conclusion that a youth justice centre order is substantively a form of punitive detention as a consequence of a finding of criminal guilt and is therefore a sentence of “imprisonment” within the meaning of s 501 of the Act.

17. We pointed out that the wording in s 501(12) of the Act is intended to take in varieties of confinement in terms of the definition of “imprisonment”. Section 501(12) is consistent with other strict parts of s 501 of the Act, such as the requirement to count concurrent sentences as consecutive in s 501(7A), and the requirement in s 501(9) of the Act that residential drug rehabilitation schemes or residential programmes for the mentally ill are to be taken to be “terms of imprisonment” equal to the number of days a person is required to participate in the scheme or programme. 

18. In addition, we pointed out the remarks of the High Court in Chu Kheng Lim v Minister forImmigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 (cited above in Nuon) that involuntary detention by the State of any citizen involves taking away their liberty. Axiomatically, that fact alone confers upon such involuntary detention a punitive effect. We see no difference in the practical effect of deprivation of liberty whether the person is a citizen or not.

    Finding on the character test

19. In DGKW’s case, his detention in a YJC at the time his visa was cancelled on 9 January 2020 followed upon a judicial determination which itself followed the acceptance by the Children’s Court of a plea of guilty. The conviction by the Children’s Court of June 2019 was a finding of criminal guilt and resulted in a YDO for 18 months. These elements combine to satisfy us that all the requirements of s 501(3A) of the Act were met. DGKW’s visa was therefore cancelled by operation of law. DGKW did not pass the character test.

    Applicant’s submission on the Thornton decision

20. Mr Nikjoo submitted to the Tribunal that, because of the decision of the Full Court of the Federal Court of Australia in Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23 (‘Thornton’), the Tribunal could not have regard for any offending by the Applicant as a minor which did not lead to a conviction.

21. In response, Mr Brown submitted to the hearing that, to support the Minister’s case, the Respondent would not be relying on any Children’s Court matters which did not lead to a conviction. He referred the Tribunal to the written submissions in the RSFIC regarding Thornton, which state:

    (a)Thornton was wrongly decided and is the subject of an application for special leave to appeal to the High Court of Australia which is yet to be determined;

    (b)Although Thornton still binds the Tribunal, it is only binding insofar as it stands for the proposition that s 184 of the Youth Justice Act 1992 (Qld) and s 12(3) of the Penalties and Sentences Act 1992 (Qld) engages s 85ZR of the Crimes Act 1914 (Cth);

    (c)None of DGKW’s offending was dealt with under Queensland law, and there are no analogous provisions under the CYF Act which otherwise defines ‘conviction’ as including a finding of guilt, regardless of whether a conviction was recorded; and

    (d)Regardless of whether Thornton is distinguishable, while that case provides that the Tribunal cannot consider the fact of a conviction, that does not preclude consideration of the underlying conduct where there is independent evidence of that conduct.

    Consideration

22. Except as an expression of the Minister’s view, it is not relevant to us whether the Minister has lodged an application for special leave to appeal the Full Court decision in Thornton. The decision, insofar as it is applicable to the function of the Tribunal, represents the law as it currently stands and binds the Tribunal.

23. However, we agree with the Respondent that Thornton is a relatively narrow authority because that decision turned on the very specific wording in two pieces of Queensland legislation where matters dealt with by the Courts in that State where a minor was not convicted are to be treated as akin to a pardon, and the interaction that those Queensland laws have with the provisions of the Crimes Act 1914.

24. The ACIC report records that all DGKW’s appearances before children’s courts have been in New South Wales and Victoria. The CYF Act makes clear (s 360) that the Children’s Court of Victoria has wide powers if it finds a child guilty of an offence. It may, without conviction, dismiss the charge, order the giving of an undertaking, place the child on a good behaviour bond, impose a fine or place the child on probation, and impose both youth supervision and YDOs. It may also, under s 360(1)(i) of the CYF Act, convict the child and order that the child is detained in a youth residential centre or a YJC.

25. Section 183 of the Youth Justice Act 1992 (Qld) provides that “a conviction is not to be recorded against a child who is found guilty of an offence”. The CYF Act does not contain a similar provision. Therefore, we consider that the wording of the CYF Act is sufficiently different from the wording in the counterpart Queensland legislation relating to child offenders for there to be a different interplay with the Crimes Act 1914. 

26. The CYF Act sets out the distinction between a finding of guilt by the Children’s Court and the recording of a conviction, and as the relevant provisions make clear, the Court has a range of tools to apply to a young offender in a case where there has been a finding of guilt without conviction and a finding of guilt with conviction. There appears to be no equivalent provision in the CYF Act for a person to be taken never to have been convicted of an offence, in the terms of s 85ZR(2) of the Crimes Act 1914 (and therefore, ‘as to take away the fact of the conviction, as a pardon might do’: Kiefel J in Hartwig v P. E. Hack [2007] FCA 1039, cf, s 183 of the Youth Justice Act 1992(Qld)).

    Finding on relevance of Thornton

27. We therefore find that the decision in Thornton is distinguishable in DGKW’s case because the relevant offending, in his case, all occurred in Victoria and was dealt with under the CYF Act.

28. We make the point, however, that in all Australian jurisdictions there is a discrete regime for treatment of child offenders (in the case of Victoria, a child between the age of 10 and 18) from the adult criminal justice system. The fact that all DGKW’s offending has been as a minor is a matter that both parties submitted was relevant, and we agree.

    Is there ‘another reason’ to revoke the visa cancellation?

29. Section 501CA(4)(b)(ii) of the Act provides that the Minister (or, in this case, the Tribunal) may revoke the original decision if satisfied that there is “another reason why the original decision should be revoked”. The way the Tribunal must approach this question is guided by a direction that the previous Minister has made under s 499 of the Act.

30. Section 499 of the Act provides that the Minister may make directions which a person or body must consider in performing a function or exercising a power under the Act. Any such direction cannot be inconsistent with the Act, but a decision-maker must comply with a relevant direction under s 499(2) of the Act.

1. On 8 March 2021, the then Minister made a s 499 direction, Direction No. 90 (‘the Direction’), which commenced on 15 April 2021. The Tribunal must have regard to the contents of the Direction in considering whether there is ‘another reason’ under s 501CA(4) to revoke the mandatory cancellation. The Direction requires that some considerations must be taken into account where they are relevant. However, the Direction does not confine the Tribunal’s task; it must look at any other relevant factors in the circumstances of the case.

   Primary consideration: Protection of the Australian community from criminal or other serious conduct (paragraph 8.1)

   The nature and seriousness of the conduct

2. The Tribunal is obliged by the Direction to take into account, without limiting the range of conduct that may be considered very serious, whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women or children, or acts of family violence. The Applicant committed violent crimes and there is one crime where the victim was a woman. There is no evidence of crimes in the other categories.

   The offending which triggered the visa cancellation

3. We refer to the transcript of the sentencing remarks by the Magistrate in the Children’s Court of Victoria, in June 2019 (GD, pp 42-27). Her Honour referred to several charges, which she said are considered to be very serious. The first was a charge for Assault in company. The facts of that matter related to events late in 2018 when DGKW and two others delivered a punch each to a victim. The second was a charge for Recklessly cause injury, to a female YJC officer, where DGKW punched her in the face and gave her a bloody lip. The third was a charge for Armed robbery, which related to an incident at a milk bar in February 2019.

4. In the incident at the milk bar, the Magistrate recorded that DGKW was the driver of a getaway car. Although he did not go into the milk bar, where a 62-year-old woman was threatened with a weapon and subjected to what the Magistrate called a vicious and terrifying ordeal while DGKW’s co-offenders took money, cigarettes and a mobile phone, the law holds him equally responsible for what went on inside. The Magistrate also noted that DGKW did not remain in the car all the time; he got out to help his co-offenders push open a door.

5. The Magistrate also referred to a charge for Shop Theft in February 2019 and Theft of a motor vehicle (two counts). Her Honour noted that DGKW had a record of prior offending, which was relevant to her task of sentencing. The learned Magistrate referred to previous convictions for three armed robberies in December 2017, for which DGKW received a 12-month sentence, and that this sentence formed part of a consolidation of other offences, including serious offending. Some of that offending involved aggravated home invasion with a weapon, burglary, intention to cause injury, affray, assault, and seven instances of theft of motor vehicles. She noted that DGKW received an aggregate sentence of 18 months’ detention.

6. The Magistrate noted that DGKW successfully completed his parole after release for the matters dealt with in December 2017 and remarked that she had thought this completion of parole would auger well for the completion of the supervision order. However, Her Honour then noted that, by committing the armed robbery, DGKW had committed what she called a ‘disastrous breach of the youth supervision order’.

7. Apart from taking into account DGKW’s prior convictions, the Court also took into account his pleas of guilty, and Her Honour said he was entitled to a discount for those pleas. The learned Magistrate also referred to a pre-sentence report which recorded that the offending took place in the context of DGKW consorting with a negative peer group which, she remarked, led to each ‘egging’ the others on in the commission of offences.

8. The Magistrate noted some substance misuse in DGKW’s background and his background of family trauma and violence within the family unit. She noted that the report referred to DGKW struggling with racism at school, behavioural issues at school and some suggestion that the Applicant had an intellectual disability, a suggestion dispelled by a December 2017 assessment. The Magistrate found some charges relating to possession of cannabis and being drunk proven but otherwise dismissed. For all the charges, she convicted DGKW and imposed an aggregate total effective sentence of 22 months (including 18 months for the Armed Robbery conviction).

9. Her Honour took into account that DGKW was taken to have already served 119 days in custody and that he would be released on parole. Her Honour said:

   Your behaviour in custody is a big influence. The parole board looks at the application for parole, and you have a good record of having got through until then, but you are now soon to be 18 and it’s just going to be such a different situation if you get yourself involved in such things.

10. We see no reason to stipulate each of the matters on DGKW’s criminal record, suffice it to say that his first appearance before a Children’s Court was in New South Wales in May 2014.  He then appeared before the Children’s Court three times in 2015, four times in 2016, once in 2017 and twice in 2019. The Magistrates have deployed several tools at their disposal, including dismissal with caution, imposition of a bond, orders to attend programmes and counselling, and supervision orders, before moving to the more serious sanctions of detention orders with convictions.

11. The Direction requires us, at paragraph 8.1.1(1)(a), to consider crimes of a violent nature against women or children, regardless of the sentence imposed. We find, on the facts set out by the learned Magistrate, that the attack on the milk bar fits into this category because the victim of the offending was a woman. While DGKW did not himself enter the milk bar and did not menace this 62-year-old lady, he has been convicted of Armed robbery as part of a criminal enterprise with his co-offenders, so, as the Magistrate said, he shares legal responsibility for what took place inside the milk bar where she was threatened with a weapon.

12. This conduct is reprehensible. We cannot go behind the finding of a Court, and in any event, DGKW himself pleaded guilty to armed robbery, which means he accepts all the elements of the offence. As the High Court of Australia stated in Maxwell v The Queen [1996] HCA 46, at [19] and [20]:

    An accused is entitled to plead guilty to an offence with which he is charged and, if he does, the plea will constitute an admission of all the essential elements of the offence.

    …

    The plea of guilty must however be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake or even the desire to gain a technical advantage.

13. There was no evidence that any of these factors cited by the High Court were present in terms of DGKW’s plea of guilty, and we reject any evidence to the contrary. However, we do note that while his role as a getaway driver facilitated the criminal actions of his co-offenders, he was not himself physically present inside the milk bar and did not himself threaten the female victim or carry a weapon.

    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

14. The Direction states that decision-makers 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. The Direction states that some conduct and the harm that would be caused, if it were repeated, is so serious that any risk that it may be repeated is unacceptable.

15. Mr Nikjoo acknowledged that DGKW had amassed a record of serious offending and misconduct, whilst urging us to always remember that he was a minor when he faced the Courts. The Respondent submitted that DGKW’s offending has not increased in seriousness (in terms of paragraph 8.1.1(1)(d) of the Direction) but has been consistently serious since 2017.

16. Under cross-examination about the series of offending, which included the milk bar robbery, DGKW had met his co-offenders playing basketball when he moved from Sydney to Melbourne. He said he did not know many people and “just got deeper and deeper”. He accepted that he knew, when they set out that day, that they were going to steal because “everybody had gloves on”. He said he knew others had weapons but not “what kind of weapons.” 

17. When asked why he went along with this behaviour, DGKW responded:

    Because of the people I had surrounded myself with. No one was saying ‘no’. I didn’t think through it enough to know what we were doing was right or not. He then said, I had a lot of adrenalin. I didn’t think about it – I wasn’t thinking ahead. I still had my ‘kid brain’ and was not mature. I liked the support I was getting from my friends but didn’t realize it wasn’t the support true friends would give.

18. DGKW was asked about an incident at the YJC where he punched a female youth detention officer in the face. He said that the officers were “running at him”, so he “just reacted”. He said he “threw a punch and it connected. I felt bad. My intention was not to hit a woman. I apologised to her after the incident.”

19. The Applicant, in his oral evidence, said he was remorseful for his actions. He said he knew the consequences of his actions was separation from his family, potentially for the rest of his life, which he says, “plays on my mind a lot”. He said that if his visa is restored and he is released into the community, he plans to move to Sydney to live with his father, who works in concreting. He said his father had arranged a job for him. DGKW told the Tribunal about his mother’s health conditions and admitted that he did not think about her when he offended. 

20. DGKW told the Tribunal about a period when he was growing up when his father committed family violence against his mother. He said his father drank but, when sober, “was the best father in the world”. He said on one occasion his father hit his mother with a glass bottle, leaving significant and permanent scarring to her face. He said he remembers as a young boy seeing his mother lying on the floor in a pool of blood and that neighbours intervened. He said the scene plays in his memory. 

21. Before his mother and the rest of the family moved to Melbourne, DGKW said his father was subject to an Apprehended Violence Order and had to live separately. He said his father was occasionally violent towards the children, but they knew not to go near him when he had been drinking. In answer to direct questions from the Tribunal, DGKW said he now had a good relationship with his father as his father had given up alcohol and “has come a long way.”

22. In his oral evidence, DGKW acknowledged the seriousness of his offending. He was asked why he committed the offences he had.  He said: “I was in the wrong headspace at the time.  I let my past get the better of me and it made me make bad choices”. DGKW said he experienced a lot of bullying at school and some racism. He said that when he first came to Australia, he could not understand or speak English at all and did not know how to deal with certain situations.

23. Mr Nikjoo asked DGKW if his mother had told him to improve his conduct. He responded: “She used to warn me. I didn’t take her advice. I didn’t realise she wanted the best for me.”

24. DGKW said it took him some time in youth detention to ‘start learning’. He said:

    I didn’t take stuff seriously. When I turned 18, I started maturing up. I didn’t think the same as I used to. There are a lot of young people in Youth Justice. Every time there was a fight I would look out for people. I started learning slowly.

25. DGKW said he had undertaken drug and alcohol courses in youth detention, had qualified for a construction industry white card, and had completed a music industry certificate. He said he was going to complete a forklift driver licence off-site, but his visa was cancelled, so he was not then permitted to go off-site. DGKW said he had also completed a traffic control licence but that only lasts for two years, so he would need to renew it.

26. Mr Nikjoo noted the Magistrate’s remarks about DGKW hanging around with bad influences.  DGKW said he had cut ties with these people ‘a long time ago’. He said: “Being in immigration detention made me realize who was really in my corner – and it was only my mum”. DGKW said he had used cannabis in the past, the last time being two years ago, around 2020.

27. DGKW said he was close to both his parents, even though they had separated and now live in different cities. He said that his plan, if released into the community, was to move to Sydney where he said his father has a job for him on a construction site.

28. Ms Laura Cady gave evidence. She provided a written statement dated April 2020 (GD, p 170). Ms Cady told the Tribunal that she was a teacher at Parkville College, which is the school established for young offenders in youth detention. She said she has known the Applicant since he was aged 16.  When asked why she had provided a statement of support, Ms Cady said:

    I initially had him in literacy classes. I saw him in different contexts. He had enormous energy and was warm and funny. He was a deep thinker and progressed. When he felt safe, he opened up, which is important in a youth justice context. He has leadership skills. He was respectful with staff.  He is a talented musician and involved himself in other activities such as barbering and hospitality.

29. Ms Cady said DGKW was 18 when she wrote her letter of support. At that time, she said he had started looking for entry-level jobs online and was moving towards writing draft applications. Mr Brown asked Ms Cady about some reports from the YJC, which referred to DGKW exhibiting aggressive behaviour. She responded:

    I’ve been working there since 2017. The youth justice staff are often in a difficult position. My interactions were coming from an educational perspective. I didn’t have to put him in a cell for lockdown, and so on. Youth justice is a highly stressful environment for a young person. I can understand sometimes they have no ability to self-regulate or co-regulate, and back up is always the threat of force.

30. Mr Matthew Hyde, who is the Principal of Parkville College, provided a written statement (GD, p 165) and gave oral evidence. He said he could only speak of DGKW in the classroom and found him bright and bubbly, but a little carefree and directionless. Mr Hyde told the Tribunal: “I watched him grow and saw him work on his studies and become a leader in his group. He focussed on his music and wanted to prove to his family and others that he is a high-quality person.”

31. Mr Hyde said he noticed a ‘vast difference’ in the development of DGKW during his time at Parkville College and said the Applicant “turned into a model student during his time…and invested in himself and others.”

32. Mr Darren Stanton provided a written statement (Exhibit A8) and gave oral evidence. He said he worked as a trade and engineering teacher and worked with DGKW between 2017 and 2019. He said he oversaw young offenders obtaining white cards. He said that DGKW was young and hyperactive when he entered youth detention aged 16 and was ‘a bit of a handful’, but he said his conduct improved as he realized he could trust staff and wanted to improve himself, learning woodwork and metalworking. Mr Stanton said this was only the second letter of support he had ever written for a young offender.

33. Ms Para Grigorakis gave oral evidence. She provided a statement dated 14 September 2022 and an earlier statement (GD, p 157). Ms Grigorakis told the Tribunal that she was first employed as a youth justice case worker in 1994 by the Victorian Department of Justice, a position from which she has recently retired.

34. Ms Grigorakis said she first worked with DGKW in 2017 when he was 15 years old. She was working in the community, and part of her duty was to supervise young offenders on parole. This involved regular meetings with DGKW. She said she also met his mother and two of his sisters and visited the family home as part of her assessment work. Ms Grigorakis said that she had maintained contact with the Applicant and still spoke to him regularly by telephone.

35. Ms Grigorakis said she had watched DGKW grow from a boy to an adult. She said he had made changes in his outlook, become more articulate and was now focussing on prospects of employment and doing things to support his mother, if he is released into the community.

36. Under cross-examination, Mr Brown raised with Ms Grigorakis the fact that her evidence and views on the Applicant sat somewhat at odds with some of his other conduct, in the YJC and, notably, his reversion to offending four days after being before the Children’s Court. She responded: “Yes, he was making very poor decisions and was heavily influenced by a negative peer group”. She said that this reversion to offending was not a good sign, but that maturing takes a long time, and she had observed significant improvement in his general behaviour from the age of 15 to 20, and in her telephone interactions with him since then.

37. Mr Brown noted the oral evidence of three teachers of DGKW which he said had been uniformly positive about the Applicant’s conduct in a school setting. He then raised with Ms Grigorakis an August 2020 report where an officer wrote that DGKW continued to exhibit behaviours of concern, being rude and aggressive, and noted he was 18 at this time, which was just before he entered immigration detention. She responded:

    Young people in custody work on a pack mentality. It is easy to be influenced in an enclosed setting. It is not difficult for bad behaviour to be present. I don’t think this reflects DGKW overall. I never saw aggression myself, directed towards me, or witnessed him directing it towards other people.

38. Mr Brown noted that DGKW has plans, if he is allowed to stay in Australia, to relocate to Sydney and live and work with his father. Ms Grigorakis responded:

    Employment is key to staying out of trouble. It is constructive and he would be earning his own income. It is one way to be independent. Some of his offending seemed to be to obtain cash.  He has done a white card. He has family in New South Wales who can support him.

39. Ms Grigorakis said she felt that the effect of the cancellation of DGKW’s visa has made him stop and reflect on his life, and whether he wants to keep offending or turn his life around.

40. The oral evidence of the Applicant’s sisters displayed in our mind a genuine desire to support their brother but, at the same time, a relatively sketchy understanding of his offending history. His brother, Mr PM, also gave oral evidence. Mr PM lives in Sydney with his girlfriend, some five minutes’ drive from his father. Mr PM said that their father had a two-bedroom unit and would be able to accommodate DGKW. He said their father had worked for many years for a concreting contractor, and he did not doubt that his father could arrange employment for DGKW with that person. 

41. Mr PM said he knew that DGKW was “always in trouble with the police because of the people he hung around with. If they were his friends, they would have helped him better.” 

42. Mr PM said he had noticed a big difference in DGKW’s attitude and that he now regularly calls both his parents and Mr PM and his sisters for advice. He said during his offending period, he did not communicate with his brother, and had re-connected after he found he had entered immigration detention. Mr PM said he now spoke to DGKW every day.

43. Mr PM said that DGKW talks to him about plans he has if he is released in respect of moving to Sydney, settling with his father, and obtaining employment. He told the Tribunal that DGKW had been deeply affected by the death of a nephew who, because of the nephew’s age, had an essentially brotherly relationship with DGKW. Because of his incarceration, the Applicant could not attend his nephew’s funeral, which Mr PM said broke his brother’s heart. 

1. Mr PM said: “He’s done with that path of getting into trouble. He has cut ties with his old friends and is on a straight path now.”

2. During the evidence of some witnesses, there were references to DGKW being ‘low functioning’. This appears to be because of a March 2012 report by an educational psychologist when he was aged 10 (SGD, p 294). The Tribunal has considered this and especially notes the evidence of Mr Hyde that he was unaware of any such assessment. 

3. We also note that before the Tribunal is a report of a forensic psychiatrist, Dr Leon Turnbull, dated 24 February 2021, written after Dr Turnbull assessed him the previous day.  Relevantly, Dr Turnbull wrote (GD, p 211): “Intellectually, he did not recognise any deficits, and there were none that were obvious on simple clinical interaction.” 

4. While we note that assessment tools were applied to DGKW when he was assessed at the age of 10, we place more weight on the observations (if not conclusions) of Dr Turnbull. He has greater expertise, and, more importantly, his assessment is much more contemporary.  Notwithstanding Dr Turnbull did not apply any clinical assessment tests, we are inclined to his view that there are no notable cognitive deficits applying to DGKW. The Applicant impressed us as articulate and well able to marshal his thoughts in responding to questions from counsel and from us. We consider, although it is speculation, that the earlier assessment might have been affected by DGKW’s lack of English (given that when he came to Australia, only three years before the assessment, he spoke no English, only Arabic and some Dinka); and by the traumatic experience he had in the immediate aftermath of the physical assault on his mother by his father in the home (not long before the assessment).

5. Overall, we conclude that there is some risk of DGKW re-offending. There are certain plans in place to prevent that, especially the willingness of his brother to assist him. There are others who are supportive, but they are in Victoria, and the plan is for the Applicant to move back to Sydney. We agree with witnesses that employment will be a key factor, as well as DGKW showing the strength of character not to associate with, or resume links with, criminal elements. We do not doubt his good intentions and accept he is remorseful. However, going against that is some of his oral testimony in which he attempted to dilute his criminal responsibility for certain offences to which he pleaded guilty. This is antipathetic to exhibiting genuine remorse.

6. We find that this primary consideration inherently weighs against revoking the mandatory cancellation of the visa. However, the weight we place is significantly tempered by the fact that all DGKW’s offending was committed as a minor, and there is evidence that he is maturing and changing his general mode of conduct.

   Primary consideration: Family violence committed by the non-citizen (paragraph 8.2)

7. The Direction requires the Tribunal to consider whether a non-citizen has been convicted of any offence or had charges proven that involve family violence. The Respondent submitted (RSFIC, paragraph 33) that there is no evidence that DGKW has engaged in family violence. 

8. We agree with this submission and therefore find that this primary consideration weighs neutrally in this assessment

   Primary consideration: Best interests of minor children in Australia affected by the decision (paragraph 8.3)

9. The Direction requires decision-makers to make a determination as to whether non-revocation is or is not in the best interests of a child affected by the decision. To be considered under this part, a child must be aged under 18 at the time of the decision. Where there are more than two relevant children, the best interests of each should be given individual consideration to the extent that their best interests may differ.

10. The Tribunal must take into account various factors set out in paragraph 8.3(4) of the Direction, where relevant. These include whether the Applicant has a parental relationship with the children, the extent to which he is likely to play a positive role, the impact of prior conduct on the child or children; the likely effect separation would have on the children; and whether there is another person or persons who fulfil a parental role. In addition, any known views of the child or children should be taken into account.

11. The Applicant has submitted that he has 11 nieces and nephews who are under the age of 18, and as such, their best interests should be considered. No statements were received from any of these 11 children. Birth certificates were provided for each of the nieces and nephews. It was not in contention that the Applicant has 11 minor nieces and nephews, and as such, we accept this as fact and turn our minds to their best interests.

12. DGKW wrote in his response to the cancellation of his visa in January 2020 that, at the time, he lived with four of his nieces and nephews and that he played a role in their lives, including babysitting, taking them to and from school and being involved in their bedtime routines. He claimed that he played the role of an uncle and that in his culture, the role he played was an important one. He wrote that five of his nieces and nephews live in New South Wales and that he would visit every few months and that he would play a role in their lives too.

13. The youngest of the minor nieces and nephews, who was born in Victoria, was not born at the time of the Applicant’s 2020 statement, nor has he had an opportunity to engage with this child due to being in immigration detention, other than by ‘facetime’.

14. At the hearing, DGKW said that he would be moving to New South Wales if the cancellation decision was revoked. He said that he would move in with this father. As considerations of the best interests of the child are forward looking, we turn our mind to the circumstances of the nieces and nephews if the Applicant were to live in New South Wales.

15. In such a scenario, the five minor children in Victoria would only have intermittent contact with the Applicant when he visited them, or vice versa. Affirming the non-revocation decision, though, would mean that none of the children would have any physical interaction with the Applicant for the foreseeable future.

16. As noted above, we are satisfied that DGKW’s risk of reoffending will be significantly lowered if he moves to Sydney, obtains gainful employment, and does not renew ties with former young offender criminal associates. This finding has influenced the weighting we place on the best interests of minor children in Australia. The Applicant has in the past not proven to be a responsible role model. He has a lengthy criminal history; he has used drugs and lied to his mother about his circumstances. His ability to positively influence his nieces and nephews, therefore, entirely pivots on whether he regresses to reoffending.

17. The Applicant’s role in relation to all the children is avuncular. The Direction requires us to make a determination in relation to relevant minor children and, where their best interests may differ, to make a separate determination accordingly. While it may be that the oldest niece’s age means she would be more affected if he was deported, we are satisfied to make a single determination in relation to the 11 nieces and nephews. This is because the Applicant does not have a parental role regarding any of the children and because the evidence of his two sisters was relatively similar in how they thought their children would be affected.  Both said that the children know him as their uncle and had regular interactions.  They would miss him if he were out of Australia. Because of their tender age, the children do not know the precise circumstances of DGKW’s immigration detention, and they think he is just away for another reason.

18. We find that it is in the best interests of the children to have DGKW remain in Australia. As the role is of an uncle and it is not claimed that the Applicant would be playing a direct parenting role while in Sydney as he has claimed that he has arrangements to live with his father and subsequently his mother after she moves to Sydney, we place a moderate weight in favour of revocation regarding this primary consideration.

    Primary consideration: Expectations of the Australian Community (paragraph 8.4)

19. Paragraphs 8.4(1) and (2) of the Direction state:

    (1)  The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

    (2)  In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because of the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.

    …

20. The Direction highlights specific categories of identified offences: 8.4(2)(a) – acts of family violence; 8.4(2)(c) – commission of serious crimes against, inter alia, women and children; 8.4(2)(d) – commission of crimes against government representatives due to the positions they hold, or in the performance of their duties. The Australian community’s expectation is taken to be a ‘norm’. The word ‘norm’ means of a ‘standard’ or ‘pattern or type’. A superseded version of the Direction (‘Direction No. 65’) contained generally similar wording to paragraph 8.4 and was considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (‘FYBR’). The Court held that it is not for a decision-maker to make a personal assessment of what the ‘expectations’ of the Australian community may be. The expectations articulated in the Direction are ‘deemed’; they are what the executive government has declared are its views, not what a decision-maker, including this Tribunal, may seek to derive by some other evaluative or balancing process. 

21. Direction No. 90 was issued by the then Minister after FYBR and imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which acknowledges the approach taken by the plurality of the Court in FYBR. Therefore, while the expectations of the community are ‘deemed’ to weigh against an applicant (a position accepted by the parties in this matter), the relative weight will be affected by circumstances in the individual case.

22. The Tribunal considers that the weight of the deemed expectations of the community would bifurcate in that, although only 20 years of age, DGKW has amassed a significant record of offending and antisocial conduct, which shows no regard for the fact that he held a visa in Australia which, as with all visas, requires a person to abide by Australian laws. On the other hand, the community would also note that all DGKW’s offending has been dealt with by the Children’s Court and was committed as a minor.

23. The Tribunal finds that this primary consideration weighs against revoking the mandatory cancellation of the visa, but the age of DGKW when offending significantly tempers that weight.

    Other consideration: International non-refoulement obligations (paragraph 9.1)

24. The Direction states that a non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. It goes on to say that Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (i.e., the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘the CAT’), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (‘the ICCPR’). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing. Accordingly, in considering non-refoulement obligations where relevant, the Direction exhorts decision-makers to follow the tests enunciated in the Act.

25. The Respondent acknowledges that the Applicant has made claims to fear harm upon ‘return’ to South Sudan, which are relevant, while noting that DGKW can apply for a protection visa, which he has not yet done. The RSFIC noted the High Court of Australia decision in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, where the majority stated at [39]:

    Where the cancelled visa is not a protection visa and a decision-maker defers assessment of whether non-refoulement obligations are owed to permit a former visa holder to avail themselves of the protection visa procedures provided for in the Migration Act, it nevertheless may be necessary for the decision-maker to take account of the alleged facts underpinning that claim where those facts are relied upon by a former visa holder in support of there being “another reason” why the Cancellation Decision should be revoked.

26. In his oral evidence, when asked by Mr Nikjoo whether he was South Sudanese, DGKW responded: “Yes. My parents are South Sudanese, so I am, too. I know I am eligible and have to apply [for citizenship], but I don’t know anything [more].”

27. DGKW said he knew nothing about South Sudan, having been born in Egypt. He said that he spoke “a bit of Arabic, but mostly English and a little bit of Dinka.”

28. DGKW was asked what his parents had told him about South Sudan. He said: “They have told me what they experienced and that they don’t want me to experience. I haven’t experienced myself, only what they say”. He said they had told him it would be expensive to live in South Sudan, that he would be vulnerable to being kidnapped and that he would be lucky to find somewhere to live.

29. DGKW said he did not know where he would live if deported to South Sudan and, when asked squarely whether he feared going there, said: “Yes. Not just because of the war, but because of no support.”

30. Mr Nikjoo pressed DGKW on whether he held fears of being recruited as a ‘child soldier’ and asked him who told him about that. DGKW responded: “My parents told me. It is a really corrupt country. Anything could happen. Coming from Australia, they would look at me differently.”

31. In answer to a direct question from the Tribunal, DGKW said he was Dinka. He said his parents had told him that they would not be able to support him financially in the way he needed support if he was sent to South Sudan.

32. We consider that many of the concerns articulated by DGKW would more aptly be addressed under the consideration relating to the extent of impediments that would face him if he were deported to South Sudan. 

33. DGKW’s own evidence is that he is Dinka, which is the currently dominant ethnic group in the Republic of South Sudan. It may be, as the Respondent suggests, that he would make an application for a protection visa if the cancellation of his visa is affirmed. That would, in our view, be likely.

34. We consider that a more detailed assessment of his claims that Australia’s international obligations are agitated in his case would be able to be made if such an application for a protection visa is lodged; more detailed than we are able to make in the statutorily constrained time available to us to make a decision in a number of days between the end of the hearing and the eighty-fourth day set by section 500(6L) of the Act.

35. However, on the necessarily less in-depth assessment the Tribunal has been able to make, we find that this consideration weighs neutrally. We will consider the claims further in relation to impediments if DGKW was deported to the Republic of South Sudan.

    Other consideration: Extent of impediments if removed (paragraph 9.2)

36. The Direction requires decision-makers to consider the extent of impediments a non-citizen may face if removed from Australia to their home country in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of the country. The Tribunal must consider the Applicant’s age and health, any substantial language or cultural barriers and social, medical, and/or economic support available to him if repatriated.

37. The Applicant claimed, in written submissions and in answers he gave in oral evidence, that he has yet to establish his South Sudanese citizenship. He said he does not know anyone in South Sudan, has no place to live and does not fluently speak the prevalent language.  He also claims that he has no skills to find any meaningful employment and would be perceived as a ‘rich foreigner arriving in a war-torn country’ and liable to kidnapping, therefor, for ransom. He further claims to face a real risk of being killed by rival tribes or being abducted and pressed into service as a child soldier.

38. The Respondent noted that DGKW would be unlikely to receive the same familial, medical, social and economic support as he has in Australia if removed to South Sudan. However, the RSFIC asserted that there is no evidence to suggest that the Applicant would be unable to avail himself of the support that is available to him in South Sudan, in the context of what is generally available to other citizens of that country. Further, the Respondent acknowledged that DGKW would face cultural barriers because he has never lived in South Sudan; but contended it is not evident that he will be ‘impeded linguistically’ in circumstances where the Republic of South Sudan adopted English as its official language in 2011.

    Consideration

39. The Applicant and his witnesses provided written submissions regarding their view on the situation in South Sudan. Representative of the evidence provided were views that the situation in South Sudan is ‘volatile’, ‘criminals are often armed many of whom without jobs…resorting to crime leaving the country in an extremely difficult environment’, that there are ‘hard and dangerous living conditions’, and that people ‘go randomly missing’. During the hearing, it became apparent, in response to cross-examination, that these views were largely garnered from Facebook or the Al Jazeera new organisation.

40. In addition, the following documents were provided, an article titled Civil War in South Sudan, by the Center [sic] for Preventative Action (Exhibit A3) and the DFAT Country Information Report on South Sudan (Exhibit A2). The Applicant also made submissions to the Department with country information relating to South Sudan from around 2018-2019.

41. The Respondent lodged the following documents on the situation in South Sudan:

    ·UN Security Council; Report of the Secretary General on the situation in South Sudan;

    ·Special Representative of the Secretary-General of South Sudan and the Head of UNMISS; Briefing to the Security Council;

    ·UNMISS Press Statement on roadmap to peaceful and democratic end of the Transitional Period; and

    ·UNMISS Special Representative of the UN Secretary-General remarks on graduation of the Necessary Unified Forces.

42. We place greater weight on independent, third-party information regarding the situation in South Sudan rather than the oral and written evidence of the Applicant and family witnesses who had either not been to South Sudan or, on their own evidence, left that territory (then Sudan, before partition) as very young children.

43. The picture painted by the information available to the Tribunal, with greater weight given to more recent reports, is of a country that continues to experience political tumult arising from the peace agreement ending the civil war. The country remains weak economically, with growth dependent upon positive outcomes from the peace process, recovery of oil prices and financial management reforms. The current security situation can be described as stable, with pockets of conflict arising from traditional cattle raiding and factional fighting in rural and regional areas without any reports of fighting in the capital, Juba. The fighting outside of Juba is not limited to soldiers, with the impact spreading to civilians being targeted either directly because of their ethnicity or indirectly through the destruction of homes and infrastructure.

1. We note the Respondent’s closing submissions where the Minister accepts the following:

   (a)DGKW has never lived in South Sudan; 

   (b)He has some Dinka language, but it is not well-developed; 

   (c)The consistent evidence of his family is that they are not aware of any relatives in that country; and

   (d)The Applicant is young and immature. That, if patriated to South Sudan, he may be viewed as “rich” and potentially could be forced into joining a militia. 

2. On the other side of the coin, the Respondent noted that DGKW is a healthy young man.  He is capable of finding employment, and the Respondent submitted that owing to the frail government support structures in South Sudan, it is an economy based on casual employment, which DGKW would be able to secure. The Respondent also submitted that some financial support would come from the Applicant’s family. Mr Brown squarely submitted that DGKW would face significant difficulties if he is deported to South Sudan.

3. We note that DGKW would be returned by air to Juba if his visa is not restored and he does not lodge an application for a protection visa. We accept the information in the DFAT Country Information Report (‘CIR’) suggestive that a Dinka would face a low level of risk of harm in the capital. Nonetheless, we acknowledge that CIR also records a weak police force and an increase in criminal activity due to economic insecurity and place limited weight in favour of revocation arising from the risk of harm the applicant faces from criminal groups.

4. The Applicant came to Australia as a seven-year-old from Egypt, where he was born and lived as a refugee. He has never lived in, or visited, South Sudan and claims not to know anyone there. DGKW’s mother provided evidence regarding her family. At the hearing, she explained how she and her husband were displaced during the 1990s, fleeing first to Khartoum and thence to Cairo. In response to questions regarding any known relatives in South Sudan, the Applicant’s mother explained that many were killed in the 1990s when they were displaced and that she does not know the whereabouts of other relatives. She claims that the community leaders from her village would not know of her and her family as it has been 30 years since they were there.

5. We found the Applicant’s mother’s evidence in this regard convincing. That period in what was then unpartitioned Sudan was one of major civil war and upheaval. Many of the population were displaced, affecting DGKW’s family as well as so many others. We cannot assume that those who may have known the family then would remain in the same village or even be alive.

6. There was no evidence relating to the Applicant’s father’s side of the family other than that he was from Rumbek. One sister of the Applicant who gave evidence said she understood that her paternal grandfather had died in South Sudan some weeks before the hearing.

7. Country information provided by the Applicant, albeit dated 2016, describes the economic situation as:

   Eighty-five per cent of the population undertake unpaid work, mainly in agriculture which has been adversely affected by ongoing conflict and drought (an estimated 2.8 million people are now considered severely food insecure). Poverty has noticeably and statistically increased, from 44.7 per cent of the population in 2011 to 57.2 per cent in 2015.

8. The Applicant also fears being targeted for being perceived to be a wealthy returnee from the West. The submission to the Department quotes DFAT travel advice regarding crime:

   The security risk is especially high in Juba, where carjacking and gun crime are frequent and include compound invasions and attacks on hotels, restaurants and other places foreigners go. Non-violent petty theft and fraud are also common, including pickpocketing, theft of items from vehicles and fraudulent currency exchanges.

9. Only tangential information was provided to suggest that foreigners were specifically at risk; nevertheless, with high crime and no knowledge of the environment, the Applicant has a higher risk profile than other citizens of South Sudan.

10. While the case was made that the Applicant feared forced recruitment by some of the militia, the evidence of this was limited to reports from 2014 and 2015, a time before the most recent peace agreement had been established and did not include examples of similar types of incidents in Juba. As such, although we note the submission of the Respondent, we cannot make a firm finding that DGKW faces the risk of forcible recruitment.

    Citizenship

11. It was common ground that DGKW was born in 2001 in Cairo after his parents had fled to Egypt because of the civil war in Sudan. It is also not contested, and we find, that DGKW is of Dinka ethnicity. Both of his parents were born in localities that are now within the national boundaries of the Republic of South Sudan, following the de facto partition of Sudan in 2005, recognised internationally in July 2011.

12. The RSFIC referred to a previous Tribunal analysis in Re: Galuak and Minister forImmigration and Border Protection [2018] AATA 2301 in support of the contention that the country of reference for DGKW is South Sudan. We adopt that analysis.

13. The Tribunal notes that the Transitional Constitution of the Republic of South Sudan, 2011 provides, at Article 45(1):

    Every person born to a South Sudanese mother or father shall have an inalienable right to enjoy South Sudanese citizenship and nationality.

14. The Nationality Act, 2011 (South Sudan) provides that a person born before or after the Act has entered into force shall be considered a South Sudanese National by birth if (a) the parents, grandparents, or great-grandparents of the person, in the male or female line, were born in South Sudan, or (b) the person belongs to one of the indigenous ethnic communities of South Sudan.

15. The Applicant’s mother, in her evidence, told the Tribunal that she was born on the outskirts of a village in what is now South Sudan. She said that her husband was born in Rumbek, which we know is the capital of the Lakes State in central South Sudan and was formerly the capital of the Republic of South Sudan before Juba became the capital.

16. We are satisfied on this evidence, because of the declaratory nature of the South Sudanese citizenship law, that DGKW is entitled to South Sudanese citizenship, and we so find.  However, we note that administrative processes would have to take place before he was able to obtain proof of citizenship.

    Other impediments

17. We note DGKW’s evidence that he knows of no relatives in South Sudan and his mother’s oral evidence that the relatives she had there have died and any other relatives are in Australia. There was mention in the papers of an aunt, his mother’s sister, still residing in South Sudan, but that DGKW did not know her. When the Tribunal asked the Applicant directly about this aunt, the Applicant said he did not know anything about the person.

18. In her oral evidence, the Applicant’s mother was asked by Mr Brown on what she based her opinion that the situation in South Sudan is ‘very bad’. She responded: “I’ve not heard from anyone. I don’t have family members there. The only place I know is Australia.”

19. In his statement dated 25 August 2022, the Applicant’s brother, Mr PM, relevantly wrote (Exhibit A11):

    If DGKW’s visa were to be revoked and he were to be sent to South Sudan myself and my family would fear for his life. The living conditions in South Sudan are horrible to say the least, not only that all of DGKW’s family is currently in Australia and no family that resides in South Sudan as it is a war torn country.

    …

    Our mother and father have always told us the reason for leaving South Sudan and fleeing to Australia was because of it being such a horrible place not only with the civil wars and crime along with living conditions and severe weather conditions. With that being said if DGKW’s visa were to be revoked he would not be able to live a life that I would even consider as humane.  My family would worry about DGKW’s safety every day if he were to be sent to South Sudan, he would not have any where to stay nor would he have any income to support himself.

20. DGKW’s sister Ms AM wrote a statement expressing similar sentiments (Exhibit A10), as did his other sister Ms BM in her September 2020 statement (GD, p 149), who also emphasised that the Applicant has limited ability in the Dinka language.

21. We agree with the Respondent’s submission that DGKW would lack the family and social support he has in Australia if he is deported to South Sudan. When asked about his physical health, DGKW said he had formerly been on medication to help him sleep but was not on any medication currently. There was no information before us that he was not in good physical health, and that was the finding of Dr Turnbull in 2021 (GD, p 211).

22. In respect to language, we accept DGKW’s evidence that he speaks only a small amount of Arabic (a language he acquired in Egypt). The Applicant’s mother was asked about his proficiency in Dinka. She responded: “He understands it a little bit. He has learned English in Australia. His Dinka is not fluent, but I teach him as a mother how to speak it, but he can’t write it.”

23. We accept the Respondent’s submission that English is the official language of South Sudan, but also are of the view that, as someone who has never lived in the country (or in the Republic of Sudan), DGKW would not be familiar with local idioms or cultural mores. We consider the Applicant’s lack of fluency in Dinka would potentially mark him out for unwelcome attention as a newcomer and, possibly given the time he has spent in Australia, some elements might conclude he is wealthy. This could increase the likelihood that he would be targeted for criminal attention.

24. We consider that the most obvious impediment facing DGKW if he is deported to South Sudan is that he has never lived in that country. He has no known relatives there and has only limited knowledge of one of the major ethnic languages. We do not accept the Respondent’s submissions that his family would be able to provide some financial assistance to him; the contrary view was expressed in their evidence.

25. Overall, the Tribunal finds that this consideration weighs heavily in favour of revoking the mandatory cancellation of the visa.

    Other consideration: Impact on victims (paragraph 9.3)

26. We interpret this part of the Direction as meaning some evidence of the impact on a victim of a non-citizen’s offending in a case where the victim has knowledge of the migration implications for the non-citizen. As there is no such evidence before the Tribunal, this consideration weighs neutrally.

    Other consideration: Links to the Australian community (paragraph 9.4)

    Sub-consideration: The strength, nature, and duration of ties to Australia

27. The Tribunal must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have the right to remain in Australia indefinitely.

28. The Tribunal must have regard to how long the Applicant has resided in Australia and his contribution to the Australian community.

29. The Applicant arrived in Australia in 2009, aged seven, after a disrupted childhood in a refugee camp in Cairo. The Applicant’s only immediate family are his mother and father, an older brother and three sisters. They are all in Australia. He also has 15 nieces and nephews in Australia, 11 of whom are minors and have been referred to earlier in these reasons. We are satisfied that all of them would be affected if he was deported; his parents, brother, and sisters significantly so.

    Sub-consideration: Impact on Australian business interests

30. The Tribunal must consider any impact on Australian business interests if the Applicant is not allowed to remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501CA would significantly compromise the delivery of a major project or important service in Australia. The Respondent submitted that this sub-consideration is not engaged. The Tribunal agrees.

31. Regarding this consideration overall, we find that this consideration weighs in favour of revoking the visa cancellation and assign relatively heavy weight in favour of revocation.

    Additional consideration – prospect of prolonged detention

32. As mentioned above, the Direction does not confine the Tribunal’s task. Any other matter relevant to the purposes of the Act and raised should be considered. The Applicant submitted (ASFIC, para 47) that DGKW would face a prolonged period of detention. The reasons stated were that he would need to establish his eligibility for South Sudanese citizenship, gather supporting documents, make an application, and then await approval and conferral by the South Sudanese Government authorities.

33. The Tribunal has found that, on the facts, DGKW is eligible for citizenship of the Republic of South Sudan. However, we also agree with the Applicant’s submissions that these administrative steps would all have to be completed before DGKW could be issued with a South Sudan passport. This would inevitably lead to a further period of immigration detention, for a period that would not be indefinite but would potentially be prolonged.

34. We note when we queried what travel documents would be provided if the decision was affirmed and DGKW deported. Mr Brown said he did not have instructions but believed an Australian Government Titre de Voyage would be provided. We pointed out that, in the absence of evidence of citizenship, the South Sudanese authorities may also require a visa for DGKW to enter that country.

35. We note that DGKW has not applied for a protection visa, and if the mandatory cancellation of his visa is affirmed, he would be able to make an application for a visa in that category. We consider that is likely but make no firm finding in that regard because it would be speculatory, and Mr Nikjoo did not make submissions in that respect.

36. We find that this special consideration weighs in favour of revoking the mandatory cancellation of the visa, but that weight is not heavy because of our earlier finding about the country of reference.

    SUMMATION

37. We are required by the Direction to consider all the considerations in applying a weighing up exercise. Although the Direction exhorts decision-makers that primary considerations should generally carry more weight than other considerations, we note consistent Federal Court authority that any consideration can be determinative.

38. In this matter, we have found as follows. The primary consideration relating to the protection of the Australian community weighs against revoking the cancellation decision. The weight of that consideration is significantly tempered by the fact that the Applicant committed all his offending as a child, and there is positive evidence of a maturing mindset beginning to take hold, and certain plans which will form preventative factors.

39. The primary consideration relating to family violence is not relevant and weighs neutrally.  The primary consideration relating to the best interests of minor children in Australia weighs in favour of the Applicant, but not heavily so, given he does not perform a parental role in relation to any of the relevant children. The primary consideration relating to the expectations of the Australian community weighs against revoking the cancellation decision, but again that weight is tempered by the fact that all the offending was committed as a minor.

40. Regarding the other considerations, we have found that the consideration relating to Australia’s non-refoulement obligations weighs neutrally. We have found that the consideration relating to impediments DGKW would face if removed to South Sudan weighs heavily in favour of revocation. We have found that the consideration relating to the impact on victims is not engaged and weighs neutrally. We have further found that the consideration relating to the Applicant’s links with the Australian community weighs heavily in his favour.

41. We are not restricted only to the considerations in the Direction. We have found that the special consideration that is relevant to DGKW, the prospect of prolonged detention, weighs in favour of revocation. However, that weight is not heavy because its duration is affected by what processes need to be undertaken for him to get South Sudanese citizenship papers.

42. Overall, after carefully weighing the considerations, the Tribunal finds that the discretion provided for in s 501CA(4) is enlivened. As we have observed throughout these reasons, all DGKW’s offending has been as a child. There is no adult offending recorded at all, nor other interactions with the Court as an adult. We observe that the Applicant became an adult in early December 2019 and that his visa was cancelled one month and two days later by operation of law. It is regrettable that the Act does not distinguish between offending which is completely contained to a non-citizen’s childhood, and adult offending.

43. We accept that there is some risk of DGKW relapsing to re-offending, but we are reassured by the consistently positive evidence of three teachers and a case worker who have known him for years that he has many positive qualities and is a young man who can contribute much and positively to Australian society. The choice before him is clear. If he slides back into criminal conduct, especially if he continues the nature of offending as an adult, will have serious personal consequences for him.  The sentencing Magistrate made that clear.  We also safely predict the migration consequences to DGKW could also be predicted.

44. Having found that the discretion is enlivened that there is another reason to revoke the mandatory cancellation of the Applicant’s visa, it follows that the correct and preferable decision is that the reviewable decision is set aside.

    DECISION

45. Pursuant to s 43(1)(c) of the AAT Act, the Tribunal sets aside the reviewable decision dated 13 July 2022.

46. In place of the decision so set aside, the Tribunal decides that the Applicant’s Class XB Subclass 202 Global Special Humanitarian visa is not cancelled.

I certify that the preceding 162 (one hundred and sixty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris and Deputy President D. Dragovic.

........................[SGD]................................................

Associate

Dated: 5 October 2022

Dates of hearing:

20, 21 and 28 September 2022

Advocate for the Applicant:

Solicitors for the Applicant:

Mr Fardin Nikjoo

Nikjoo Lawyers

Advocate for the Respondent:

Mr David Brown

Solicitors for the Respondent:

The Australian Government Solicitor

Annexe

Schedule of Exhibits

G-documents lodged on 5 August 2022  Exhibit R1

Supplementary G-documents lodged on 9 September 2022           Exhibit R2

Respondent’s further documents lodged on 19 September 2022                Exhibit R3

The Nationality Act, 2011 (South Sudan)  Exhibit A1

DFAT Country Information Report South Sudan, dated 5 October 2016     Exhibit A2

Civil War in South Sudan – Center for Preventative Action  Exhibit A3

South Sudan plagued by violence and corruption, Human Rights

Council hears – UN News Report dated 23 September 2021  Exhibit A4

Human Rights Brief No 2, lodged on 29 August 2022  Exhibit A5

Guidelines on Children in the Criminal Justice System –

UN document, dated 21 July 1997  Exhibit A6

Applicant’s further statement, lodged on 15 September 2022  Exhibit A7

Letter of support, Mr Darren Stanton, dated 15 September 2022                Exhibit A8

Letter of support, Ms Para Grigorakis, dated 14 September 2022               Exhibit A9

Statement of Ms AM, received 13 September 2022  Exhibit A10

Statement of Mr PM, dated 25 August 2022  Exhibit A11