DPGF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2021] AATA 3228

DPGF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3228 (6 September 2021)
Division:GENERAL DIVISION
File Number(s): 2020/3419
Re:DPGF
APPLICANT

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

DECISION
Tribunal:Senior Member Linda Kirk
Date:6 September 2021
Place:Canberra

The decision under review is affirmed.
................................[sgd]................................
Senior Member Linda Kirk
Catchwords
MIGRATION – non-revocation of mandatory cancellation of visa –where visa was cancelled under s 501(3A) because applicant did not pass the character test - substantial criminal record under s 501(7) – whether discretion in s 501CA to revoke mandatory visa cancellation should be exercised – considerations in Direction No 79 – risk of re-offending – the protection and expectations of Australian community – minor children – non-refoulement obligations and need to consider - strength nature and duration of ties –impediments to applicant if removed – giving meaningful consideration to risk of harm – first Tribunal decision found to contain jurisdictional error – decision remitted back to Tribunal from Federal Court of Australia – decision under review affirmed
Legislation
Migration Act 1958 (Cth) ss 36, 499, 500, 501, 501E, 501CA
Cases
Ali v Minister for Home Affairs [2020] FCAFC 109
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
DPGF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) (Migration) [2020] AATA 3523
FYBR and Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461
Jal v Minister for Immigration and Border Protection [2016] AATA 789
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Minister for Home Affairs v Buadromo [2018] FCAFC 151
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Saleh and Minister for Immigration and Border Protection [2017] AATA 367
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
XFKR and Minister for Immigration and Border Protection [2017] AATA 2385
2101907 (Refugee) [2021] AATA 1460
Secondary Materials
Aljazeera, ‘Child Soldiers of South Sudan’, Aljazeera (30 October 2018) <
Amnesty International, ‘South Sudan 2020’, Amnesty International (undated) <
Bertelsmann Stiftung, BTI 2018 Country Report — South Sudan. Gütersloh: Bertelsmann Stiftung, 2018.
Bertelsmann Stiftung, BTI 2020 Country Report — South Sudan. Gütersloh: Bertelsmann Stiftung, 2020.
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 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954).
DFAT, ‘Destinations – South Sudan’, Smart Traveller (23 March 2021) <
DFAT, DFAT Country Information Report South Sudan (report) 5 October 2016.
European Asylum Support Office, COI Query Response – South Sudan: Security Situation (26 February 2021).
Government UK, ‘Foreign Travel Advice South Sudan’, Government UK (undated) <
International Covenant on Civil and Political Rights, opened for signature 19 December 1996, 999 UNTS 171 (entered into force 23 March 1976).
Simona Foltyn, ‘Horrific attacks prompt South Sudan's communities to form armed groups’, The Guardian (online, 7 December 2015) <
South Sudan Nationality Act 2011 (South Sudan) Government of South Sudan, 7 July 2011, s 8.
Sudanese Nationality Act 1994 (South Sudan) Citizenship Rights in Africa Initiative, 2018 amendments signed into law 30 December 2018, s 10(2).
United Nations Security Council, ‘Despite Ceasefire Agreement in South Sudan, Intercommunal Conflicts Increase, Humanitarian Needs Grow, Civil Society Representative Tells Security Council’, United Nations Security Council Press Release (16 September 2020) < Nations Security Council, Situation in South Sudan, UN SCOR S/2020/1180 (9 December 2020)
United Nations Security Council, Situation in South Sudan, UN SCOR S/2021/172 (23 February 2021)
UN Refugee Agency, ‘South Sudan Refugee Crisis Explained’, USA for UNHCR (1 May 2019) <
United States Department of State, Country Reports on Human Rights Practices South Sudan 2020, 30 March 2021.
United States Department of State, South Sudan 2020 Crime and Safety Report, Overseas Security Advisory Council (OSAC), 29 April 2020.
World Food Programme, South Sudan Situation Report, 12 June 2020.
REASONS FOR DECISION
Senior Member Linda Kirk
6 September 2021
BACKGROUND

DPGF (‘the Applicant’) was born in Khartoum, Sudan in December 1994. He first arrived in Australia with his family on 31 October 2006 as the holder of a Refugee and Humanitarian (Class XB) Subclass 202 - Global Special Humanitarian visa (‘the visa’) granted on 5 September 2006.
On 12 December 2018, the Applicant was convicted in the ACT Magistrates Court of four offences: Assault occasioning bodily harm for which he was sentenced to two months’ imprisonment; Choke, suffocates, strangles another and Common assault, for which he was sentenced to six months’ imprisonment for each offence; and Choke person render insensible for which he was sentenced to 18 months’ imprisonment with a non-parole period of 12 months.[1]
[1] Exhibit R1, 39.
On 4 October 2019, the Applicant’s visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) (‘Mandatory Visa Cancellation Decision’) because a delegate of the Minister (‘the Respondent’) was satisfied he did not pass the character test because he had a substantial criminal record within the meaning of paragraph 501(6)(a) and subsection 501(7) of the Act.[2] At this time, the Applicant was serving a sentence of full-time imprisonment at Alexander Maconochie Centre in the Australian Capital Territory.
[2] Exhibit R1, 42-47.
On 11 October 2019, the Applicant made a request to the Respondent to revoke the original decision.[3] On 25 May 2020, a delegate of the Respondent made a decision under subsection 501CA(4) of the Act not to revoke the original decision (‘the Reviewable Decision’).[4]
[3] Exhibit R1, 193.
[4] Exhibit R1, 147.
On 3 June 2020, the Applicant applied to the Tribunal (‘the first Tribunal’) for review of the Reviewable Decision.[5]
[5] Exhibit R1, 144.
On 17 August 2020, the first Tribunal made a decision to affirm the Reviewable Decision,[6] and published its reasons on 26 August 2020.[7] The Applicant sought judicial review of this decision.
[6] Exhibit 1, 4.
[7] Exhibit 1, 5.
On 30 November 2020, the Federal Court of Australia, by consent, issued a writ of certiorari, quashing the decision of the Tribunal dated 17 August 2020 and a writ of mandamus requiring the Tribunal to determine the Applicant's application for review according to law.[8] The Respondent conceded that the first Tribunal decision was affected by jurisdictional error in that the decision conflated Australia’s non-refoulement obligations under international law with the protection obligations to which section 36(2) of the Act refers.
[8] Exhibit 1, 1.
The matter was remitted to the Tribunal and heard by it as presently constituted at a hearing on 5-6 May and 20 May 2021 and 4 June 2021. The Applicant attended the hearing by videoconference from Christmas Island Immigration Detention Centre, gave oral evidence and was cross-examined at the hearing.
The following persons gave oral evidence by phone:
·The Applicant
·The Applicant’s father - JPSS
The material before the Tribunal consists of:
·Bundle of Documents filed by the Respondent on 8 March 2021 (1-1586 pages), (‘Exhibit 1’) containing:
oApplicant's Statement of Facts, Issues and Contentions dated 25 July 2020 (1 page), (‘Exhibit A1’);
oWitness Statement of Applicant titled ‘Statement of Facts’ dated 20 July 2020 (1 page), (‘Exhibit A2’);
oWitness Statement of Applicant dated 8 July 2020 (1 page), (‘Exhibit A3’);
oStatement of Nyatorok Baboth dated 4 July 2020 (1 page), (‘Exhibit A4’);
oStatement of Jook Jook (undated) (1 page), (‘Exhibit A5’);
oStatement of Angasyo Ini dated 1 July 2020 (1 page), (‘Exhibit A6’);
oStatement of Danyana Pingidi dated 29 June 2020 (1 page), (‘Exhibit A7’);
oStatement of Afeez Babjide dated 21 June 2020 (1 page), (‘Exhibit A8’);
oStatement of Folar Richard dated 9 June 2020 (1 page), (‘Exhibit A9’);
oBundle of certificates, variously dated, filed on 4 July 2020 (8 pages), (‘Exhibit A10’);
oAmended Statement of Facts, Issues and Contentions dated 3 August 2020 filed by the Respondent, and Annexure A – Ethnic Distribution Map in Southern Sudan (29 pages), (‘Exhibit R1’);
oSudanese Nationality Act 1994, filed by the Respondent on 3 August 2020 (18 pages), (‘Exhibit R2’);
oNationality Act 2011 (South Sudan), filed by the Respondent on 3 August 2020 (18 pages), (‘Exhibit R3’);
oDFAT Country Information Report: South Sudan dated 5 October 2016, filed by the Respondent on 3 August 2020 (26 pages), (‘Exhibit R4’);
oEuropean Asylum Support Office Security Situation Report dated 24 April 2020, filed by the Respondent on 3 August 2020 (51 pages), (‘Exhibit R5’);
oEmail from Department of Home Affairs to Applicant dated 25 May 2020 (1 page), (‘Exhibit R6’);
oSigned Notice of Receipt in relation to Notice of Decision signed on 3 June 2020 (1 page), (‘Exhibit R7’);
oBundle of documents titled 'Summonsed Documents' filed by the Respondent on 31 July 2020 (975 pages), (‘Exhibit R8’);
oFurther Records produced by ACT Magistrates Court containing 7 colour photographs from Case CC2018/ taken on 8 August 2018 (8 pages), (‘Exhibit R9’);
oR v Nyuon [2020] ACTSC 171 (4 pages) concerning Applicant’s brother, (‘Exhibit R10’);
oArticle titled 'On the Edge of Homicide: Stragulation as a Prelude' by Gael B. Strack and Casey Gwinn, published in Criminal Justice, Vol 26 (3), 2011 (5 pages), (‘Exhibit T1’);
oWitness Statement of Bakhita Chuor dated 10 August 2020 (1 page), (‘Exhibit T2’); and
oWitness Statement of Applicant’s brother dated 9 August 2020 (1 page), (‘Exhibit T3’).
·Bundle of Documents filed by the Applicant, containing:
oApplicant’s Statement of Facts, Issues and Contentions dated 18 April 2021;
oEmail from Applicant titled “Information About South Sudan” dated 12 April 2021; and
oEmail from Applicant titled “DPGF” dated 12 April 2021,
(‘Exhibit 2’);
·Two videos showing text messages filed by the Applicant on 5 May 2021, (‘Exhibit 3’);
·Witness Statement of Applicant's Father (JPSS) dated 30 March 2021, (‘Exhibit 4’);
·Department of Home Affairs Incident Report for incident number “1-HVEN44P” (1-3 pages) and Department of Home Affairs Incident Report for incident number “1 1-HWWHMQ7” (1-2 pages) filed by the Respondent on 30 April 2021, (‘Exhibit 5’);
The Tribunal has reviewed all the evidence before it and refers to all relevant materials below.
LEGISLATIVE FRAMEWORK
Subsection 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:
(3A)     The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)     paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)    …; and
(b)
the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Paragraph 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Paragraph 501(7) of the Act relevantly provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
(a)…
(b)…
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
…
Section 501CA of the Act applies if the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501CA(4) confers on the Minister the discretion to revoke the Mandatory Visa Cancellation Decision under subsection 501(3A). Subsection 501CA(4) provides:
(4) The 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.
Paragraph 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
MINISTERIAL DIRECTION NO. 90
The Minister is empowered by subsection 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. The Direction must be applied by all decision-makers, except for the Minister acting personally, such as the Minister’s delegates and the Tribunal.[9]
[9] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [4] (Rares, O’Callaghan and Jackson JJ).
On 8 March 2021, the Minister signed Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’). The Direction commenced on 15 April 2021 and revoked the previous Direction 79 on the same date.[10]
[10] Direction, at [2]-[3].
The following principles in paragraph 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens 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 noncitizens 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 measureable 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 paragraphs 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction identifies the following as primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)Whether the conduct engaged in constituted family violence;
c)The best interests of minor children in Australia; and
d)Expectations of the Australian community.
Paragraph 9 of the Direction identifies a non-exhaustive list of other considerations:
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(1) provides that, when taking the relevant considerations into account, ‘… information and evidence from independent and authoritative sources should be given appropriate weight.’
Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’ That does not preclude the Tribunal, however, based on the specific circumstances of each case, to give an ‘other’ consideration the equivalent of or greater weight than a primary consideration.[11]
[11] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
Paragraph 7(3) states that ‘[o]ne or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461 at [57]:
… the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501.
ISSUES FOR DETERMINATION
Before the power in subsection 501CA(4) of the Act to revoke the original decision is enlivened, the decision-maker must be satisfied that the conditions for the exercise of the power have been met.
There is no dispute that the Applicant made the representations required by subsection 501CA(4)(a). The issue is whether the discretion to revoke the Mandatory Visa Cancellation Decision may be exercised. In Minister for Home Affairs v Buadromo,[12] the Full Court of the Federal Court of Australia made the following observations in relation to subsection 501CA(4):
... 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...[13]
[12] [2018] FCAFC 151.
[13] 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).

The issues for determination are:
1)whether the Applicant passes the ‘character test’; and
2)whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.
If the Applicant succeeds on either ground, the Tribunal must find that the Mandatory Visa Cancellation Decision should be revoked.
EVIDENCE BEFORE THE TRIBUNAL
Background
The Applicant was born in Khartoum, a city which was then and remains the capital of Sudan.[14] He is a Christian and speaks Arabic and can understand but does not speak fluently his first language Zande.[15] He spoke fluent English when giving his evidence at the hearing and did not require an interpreter.
[14] Transcript of proceedings, 5 May 2021, 232.
[15] Transcript of proceedings, 5 May 2021, 232.
The Applicant’s father is a Christian of Azande ethnicity,[16] and was born in Yambio, a city which is now part of South Sudan.[17] The Applicant has a good relationship with his father and is in contact with him every day by phone or video call.[18] The Applicant’s biological mother still lives in Khartoum. He has not been in contact with her for six or seven months. When he last spoke to her she was moving out of where she was living because there was a war happening in her area.[19] He sent his mother some money to help her to move.[20]
[16] Transcript of proceedings, 5 May 2021, 232
[17] Transcript of proceedings, 5 May 2021, 231.
[18] Transcript of proceedings, 5 May 2021, 241-242.
[19] Transcript of proceedings, 5 May 2021, 232.
[20] Transcript of proceedings, 5 May 2021, 240.
In May 1999, when the Applicant was five years old, his father, his father’s wife, the Applicant and his brother fled Sudan seeking protection in Egypt. They left because his father was accused of being involved in the Sudan People’s Liberation Army (SPLA) in Khartoum, and because he was trying to convert Muslims to Christianity.[21] The Applicant’s family stayed in Egypt until they were granted humanitarian visas in September 2006. They arrived in Australia on 31 October 2006. The family stayed with the Applicant’s uncle in Blacktown in Sydney when they first arrived and later moved to Marayog.[22]
[21] Transcript of proceedings, 5 May 2021, 233.
[22] DPGF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) (Migration) [2020] AATA 3523, [37].
The Applicant attended school in Australia until year 10.[23] His father was a disciplinarian and violent towards him and his brother.[24] In April 2008 the Applicant left the family home and moved into state care.[25] Initially he was housed in a refuge. Subsequently he moved in with the family of a friend who became his foster parents until he was 18 years old.[26] The Applicant then moved into state care and, at some point around 2009, he was placed in juvenile detention for 14 months as a result of his involvement in an offence when he was a teenager.[27]
[23] Transcript of proceedings, 20 May 2021, 30.
[24] DPGF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) (Migration) [2020] AATA 3523, [39]; Transcript of proceedings, 5 May 2021, 242.
[25] Ibid.
[26] DPGF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) (Migration) [2020] AATA 3523, [39]; Transcript of proceedings, 6 May 2021, 314.
[27] DPGF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) (Migration) [2020] AATA 3523, [40].
The Applicant told the Tribunal that his father has ‘changed to a different man’.[28] He and his former partner, AC, lived with his father at his home in Brisbane for a year when she was pregnant with their daughter, CS .[29]
[28] Transcript of proceedings, 5 May 2021, 242.
[29] Transcript of proceedings, 5 May 2021, 242-243.
Relationships, children and employment
At the start of 2013 the Applicant moved to Brisbane with his then partner, AC. On 20 June 2013 his first child, CS, was born in Adelaide where AC’s family lived. The Applicant was either in Adelaide for the birth or moved there shortly after. The Applicant lived with his partner AC and her family in Adelaide for about a year.[30] After his time in Adelaide the Applicant moved to Sydney with AC. They lived separately initially and then together.[31] When CS was about a year old, AC took CS back to Adelaide.
[30] DPGF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) (Migration) [2020] AATA 3523, [45].
[31] Ibid.
In 2013 the Applicant moved to Brisbane. On the Applicant’s brother’s recommendation, the Applicant moved to Canberra in 2014 to find work. The Applicant was successful in finding work in the construction industry for the National Broadband Network and as a labourer.[32]
[32] Ibid, [50].
The Applicant spent time in Sydney without his partner, AC and their child. He also resided in Brisbane in 2016 where he met and formed a new relationship with SE. SE gave birth to the Applicant’s second child AE on 26 November 2016.[33] The Applicant and SE returned to Canberra where they lived together until March 2018, after which when SE left Canberra. In August 2018 the Applicant, SE and A were living together again in Canberra. They shared a flat with a friend of the Applicant in a block of flats where they knew and socialised with others in the flat below.[34]
[33] Ibid, [49].
[34] Ibid, [58].
Criminal History in Australia
The Australian Criminal Intelligence Commission Check dated 23 October 2019 records the Applicant’s criminal history in Australia.[35] A table setting out a summary of the Applicant’s criminal history is set out as an Annexure to these reasons.
[35] Exhibit R1, page 22-28.
Early offending
The first entry on the Applicant’s Australian Criminal Intelligence Commission Check is dated October 2011 for an offence committed by the Applicant when he was aged 16 years. His offending began with relatively minor offences such as riding a train without a ticket, but soon escalated to offences which showed a disrespect for lawful authority, including resisting arrest. These matters were heard in the Paramatta Children’s Court and the Penrith Local Court and were either dismissed with a caution following a finding of guilt, or a fine was imposed on the Applicant.[36]
[36] Exhibit R1, page 27-28.
The Applicant appeared before the courts in Brisbane on multiple occasions during 2013. He was convicted of drug possession and offences arising from contravening the direction or requirements of a police officer.[37] Initially no conviction was recorded and he was ordered (among other things) to enter a drug diversion program.[38] The Applicant did not comply with the orders, and was re-sentenced in August 2013 to one month imprisonment suspended for 3 months.[39]
[37] Exhibit R1, page 27.
[38] Ibid.
[39] Ibid.
Assault and motor vehicle offences – January 2017
On 5 January 2017 the Applicant’s vehicle was involved in a collision with another vehicle. According to the police report, when the other driver attempted to obtain the Applicant’s insurance details, the Applicant repeatedly refused, and ‘drove at [him] at slow speed colliding with his legs, causing him pain. The [Applicant] again revved his vehicle then drove at [him] a bit faster colliding with his legs and causing him to fall forward with his hands landing on the defendant’s bonnet to balance himself’.[40]
[40] Exhibit R8, page 219.
On 14 May 2018 the Applicant pleaded guilty,[41] and was convicted in the ACT Magistrates Court of six offences arising from this incident, including Common Assault, Unlicensed driver, Number plate not properly issued, and Crash not give particulars to other driver and sentenced to two months imprisonment.[42]
[41] Transcript of proceedings, 6 May 2021, 309-310.
[42] Annexure A.
The Applicant was asked about these offences during cross-examination. He said that he was driving and went to change lanes, but did not see the other driver coming in the rear-view mirror and his car ‘nicked’ the other driver’s car.[43] He agreed that when the other driver approached him and asked for his details he refused to provide them.[44] This was because he knew that he was driving while suspended, and he did not want the police to get his details as he was ‘scared to get into trouble.’[45] He agreed that the car was not registered at the time.[46] He accepted that he got back into the car and tried to leave after telling the other driver that his car was not damaged. He denied that he drove his car towards the other driver, or that he saw him fall over. He had no intention to hurt the man, and he had nothing against him.[47] After he had driven off, he looked back and saw the man standing and talking to another person.[48] He agreed that when he drove away he may ‘have nicked his leg’, but if he did so ‘it would be the slightest scratch.’[49] If the victim had been standing in front of his car he would have run him over and he would have gone over the windscreen.[50] He said that the claim that the victim fell onto the bonnet is ‘a 100 per cent lie’, and if the video footage were examined it would confirm his version of events.[51]
[43] Transcript of proceedings, 6 May 2021, 301-302.
[44] Transcript of proceedings, 6 May 2021, 303.
[45] Ibid.
[46] Ibid.
[47] Ibid, 307.
[48] Ibid, 306.
[49] Ibid, 307, 309.
[50] Ibid, 308.
[51] Ibid.
Threat to kill offence – January 2017
On 20 January 2017 the Applicant was involved in an altercation with two strangers. The facts in relation to this offending are set out in the sentencing remarks of Magistrate Cush:
[The Applicant] approached the male victims without any particular reason. He asserted that they were following him. Both victims denied that that was the case. He said to both persons words to the effect of, "You know who I am. I'm going to come to your house. I'm going to wear a mask. I'm going to shoot you,I'm going to kill you." He used his fingers as a gesture.
Both victims then went to walk to the police station nearby. The [Applicant] returned. He pulled a knife. He pointed the knife at both persons and said words to the effect of, "Mate, I'm going to kill you." That was obviously a very disturbing and frightening experience for both persons. He then put the knife away. He grabbed [the victim] by the shirt sleeve, pulling him close towards him and then kicked him in the right ankle and that completed the assault.[52]
[52] Exhibit 1, 173.
The Applicant was questioned about this offence during cross-examination at the hearing. He said that the incident happened after he had finished work and he was in a hurry as he had to report in at the police station because at the time he was on bail.[53] He drove his car and then parked to walk to the station. As he was walking, a car drove past him quickly and nearly hit him. When the car stopped and parked, he asked the men ‘like what the hell? You almost hit me, you know.’[54] He told the Tribunal that he did not fully remember the offence but ‘it was a heated conversation’, and he does remember that he said he was going to kill the victim.[55] He agreed that he pulled out a knife and grabbed and kicked the victim in the leg.[56] However he claims he did so because one of the men ‘came running, charging’ at him and he thought ‘he was going to do something’. It was then that he ‘pulled the knife out and [he] held him’, then kicked him and let him go.[57] He then started walking to the police station because he had to report in. They followed him to the station and he arrived there before the men.[58] The Applicant told the Tribunal that the knife was a folding knife that he did not realise he had in his pocket until the argument started.[59] He agreed that he was not truthful when he told the police that he did not make any threats against or touch anyone.[60] He told the Tribunal that he accepts that using a weapon and pointing a knife at someone is very serious, particularly after he had made a threat to kill the person.[61] He also accepted that his conduct caused the victims to live in fear after the event.[62]
[53] Transcript of proceedings, 6 May 2021, 293, 294.
[54] Ibid, 292.
[55] Ibid, 289.
[56] Ibid, 291.
[57] Ibid, 292.
[58] Ibid.
[59] Ibid, 293.
[60] Ibid, 293-294.
[61] Ibid, 294.
[62] Ibid.
When the matter came before the ACT Magistrates Court on 12 July 2017 the Applicant pleaded guilty and was convicted of two counts of Reckless threat to kill and sentenced to eight months’ imprisonment to be suspended after six months subject to good behaviour obligations; Common Assault for which he received a good behaviour bond, and Possess prohibited substance (cannabis 50g or less) for which he was fined $500. The sentences were backdated to 20 January 2017, and he was released from custody.
In his sentencing remarks, Special Magistrate Cush commented that the offence is viewed ‘very seriously’ by the legislation, and that the Applicant's offending can be ‘regarded as serious and it's obvious … to any reasonable person that to threaten another, threaten to kill them in circumstances is a serious matter’.[63] The victim is reported as having found it a frightening experience, and still has anxiety and experiences hyper-vigilance when people come near his place or when he hears a car door open or slam late at night.[64] The Magistrate found that the experience was ‘very disturbing and frightening’ for the victims.[65]
[63] Exhibit 1, 173.
[64] Exhibit 1, 175.
[65] Exhibit 1, 173.
Domestic violence incident – March 2018
On 30 March 2018 the police were called to premises in Canberra where the Applicant lived with his partner SE and their daughter AE. SE, who had been living with the Applicant for about two months at that stage, reported that she and the Applicant had been arguing when he hit her in the face and tried to strangle her.[66] When they attended the scene, the police observed a lump on SE’s face, a cut above her eyebrow, and red markings around her neck.[67] The police report notes the following evidence from Dr Thomas who saw SE at Calvary Hospital after the incident:
FMO attended (Dr Russell THOMAS) attended at 04:58. He performed an examination on [SE] including taking photographs of her injuries. Dr THOMAS stated [SE’s] version of events were consistent with the injuries she sustained. Dr THOMAS further stated it was not possible for [SE] to have inflicted the injuries to her own neck and they were consistent with strangulation.
[66] Exhibit R8, 254.
[67] Exhibit R8, 1052.
On 31 March 2018 SE and AE returned to Brisbane.[68] No charges were laid against the Applicant.
[68] Exhibit R8, 459-461.
The Applicant was asked about this incident during cross-examination at the hearing. He told the Tribunal that he and SE ‘got into an argument’ because he wanted her to leave his house and he had booked a ticket for her to return to Brisbane.[69] He denied that he tried to choke SE, and said that she ‘just kept on going wild’. He ‘kept trying to restrain her down from her punching and hitting [him]’.[70] He said repeatedly to her ‘Can you stop’ and she then bit his lip.[71] She broke his TV and a couple of bottles.[72] He does not remember causing the marks to SE’s neck, but agreed that he wrestled with her to hold her down to stop her from hurting him.[73] She tried to hit him with a broken bottle and he had to restrain her. He was scared that she might stab him or herself with the bottle.[74]
[69] Transcript of proceedings, 20 May 2021, 10.
[70] Ibid.
[71] Ibid, 13.
[72] Ibid, 10.
[73] Ibid, 13.
[74] Ibid.
Domestic violence offending – August 2018
In early August 2018 the Applicant committed a series of domestic violence offences against his partner SE. On 7 August 2018, SE was at her friend's apartment, which was one level below the apartment where she and the Applicant resided.[75] The Applicant entered SE’s friend’s apartment, yelled several times ‘where the fuck is [SE]?’ SE appeared at this time, and the Applicant pulled her out of her friend’s apartment. The Applicant then pushed SE up on a flight of stairs by applying force to her throat and whilst she was holding their infant daughter AE. This caused SE to fall backwards onto the stairs. This incident was observed by a neighbour who intervened to stop the incident. SE suffered several small cuts and abrasions and became very frightened.[76]
[75] Exhibit R8, 882.
[76] ibid.
The Applicant was questioned about this offence during cross-examination. He told the Tribunal that the cuts that were caused to SE were not inflicted by him but were the result of a fight she had with another girl. He said that SE sent him text messages in which she admitted to lying about the cause of the cuts on her neck.[77] He admitted that he pushed SE up the stairs with his hand on her neck when she was holding their daughter, and to applying force to her throat.[78] He said he was angry with SE because she had been drinking in front of their daughter.[79] He agreed he should not have pushed her and he does not know why he did so, and that he placed the safety of AE at risk when he pushed SE.[80]
[77] Transcript of proceedings, 5 May 2021, 260-261.
[78] Transcript of proceedings, 5 May 2021, 260-261.
[79] Transcript of proceedings, 5 May 2021, 261.
[80] Transcript of proceedings, 5 May 2021, 261, 269.
On the following day, 8 August 2018, SE was again in her friend’s apartment.[81] The Applicant yelled out to her a number of times, and when SE looked up from the balcony of her friend’s apartment, the Applicant said words to the effect ‘what the fuck are you doing, are you coming upstairs?’ SE then returned to her apartment with their young daughter AE. After SE put AE down on a couch, the Applicant approached her and grabbed her by the throat with both hands and started squeezing her neck. While he was doing this, he pushed her backwards and she fell on a clothes-drying rack. The Applicant got off SE who stood up and sat down on the couch. The Applicant approached a second time and began choking her again. One of SE’s friends from the unit downstairs came up to see what was happening. The door was partly open so she could see into the room and could see the Applicant on top of SE. She ran downstairs and called the police. The Applicant choked SE until she lost consciousness.[82] When the police arrived, the Applicant was taken into custody.
[81] Exhibit 1, 178.
[82] Exhibit R1, 37.
The Applicant was questioned about this offence during cross-examination. He told the Tribunal that he and SE argued because of her drinking in front of their daughter and the argument ‘heated up’.[83] He told her she had to leave and that he would get her a ticket back to Brisbane. She said she was not going anywhere and then she started poking him on his hair and he said, ‘Stop touching me’. She then grabbed him, and he fell over and his hand was on her neck and she said, ‘Get off me. Get off me’. She was trying to fight him, and he was trying to hold her back and she hit him and he pushed her back. He admitted he did push SE back and they ‘got into a little wrestle’, and he did choke her but ‘she did not lose any consciousness’.[84] He does not remember punching SE to the right side of her head.[85] He said that he only choked her once, and the clothes rack was already on the ground.[86] He was screaming at SE and telling her to ‘relax’ and ‘calm down’.[87]
[83] Transcript of proceedings, 5 May 2021, 266.
[84] Transcript of proceedings, 5 May 2021, 262-263.
[85] Transcript of proceedings, 5 May 2021, 262-263.
[86] Transcript of proceedings, 5 May 2021, 264.
[87] Transcript of proceedings, 5 May 2021, 265.
On 15 November 2018 the Applicant was found guilty of Assault occasioning actual bodily harm, Choking, suffocating or strangling another, Choking a person and rendering them insensible; and Common assault.[88] The Applicant was sentenced on 12 December 2018. In relation to the charge of Choking a person and rendering them insensible, he was sentenced to 18 months’ imprisonment with a non-parole period of 12 months. He was given lesser sentences in relation to the other offences, but the sentencing Magistrate determined that it would be artificial to separate the offences and so determined that the sentences should run concurrently.[89]
[88] Exhibit R8, 298.
[89] Exhibit R1, 35-37.

In his sentencing remarks, Magistrate Theakston stated that the Choking person render insensible offence was ‘a very, very serious matter’.[90] His Honour observed, ‘[w]hat is clear is that when someone is rendered unconscious due to choking, that death is not very far away and this matter could have been much more serious had the defendant continued to hold the complainant for a longer period’.[91] The sentencing Magistrate remarked that the offences,
occurred in a family violence context … family violence matters need to be taken seriously by the courts … the current sentencing practice is that offences that occur in a family violence context are aggravated by that context. Partners, parents and family members are entitled to feel safe when with their family members. They are also entitled to feel safe at home.[92]
[90] Exhibit R1, 37.
[91] Ibid.
[92] ibid.
The Applicant told the Tribunal he does not know why he committed the offences. He ‘wasn’t thinking straight’. When he got home after working all day and SE was not at home, he got angry and they argued about her drinking in front of their daughter. He denied that the offences were witnessed by AE as she was out of the room because he picked her up and took her out.[93] He agreed that hearing her mother scream would have had a traumatic impact on AE.[94]
[93] Transcript of proceedings, 5 May 2021, 268.
[94] Transcript of proceedings, 5 May 2021, 269.
Responsibility and remorse for offending
In his oral evidence at the Tribunal hearing the Applicant stated:
I’ve learned a lot. I’ve learned a lot here. And if it looks like I’m not showing remorse because you asked me a couple of questions about the statement of facts and all that, if it looks like I’m not showing remorse, trust me, I feel remorse. I feel remorse all the time for the victims, especially the mother of my child. Especially the mother of my child. Especially my daughter, just knowing that, like, that happened when she was around, I feel remorse every time, like, and, yes, that’s why I reckon – that’s why I reckon I’m not going to come back. I’ve done anger management. I’ve done, like, I’ve done a lot of programs, you know, and I’ve learned. Like I know how to handle and what to do. I learned all the tools that I need what to do if next time if I’m put in the same situation what to do and how to handle it.[95]
[95] Transcript of proceedings, 6 May 2021, 318.
Behaviour in prison
During cross-examination, the Applicant was asked about an incident on 14 April 2017 when he abused a corrections officer.[96] He told the Tribunal that the officer did not like him and was ‘targeting’ him.[97] The officer came into his cell and searched it and ‘turned everything upside down.’ The officer abused him, and he abused him back. He was concerned that the officer may assault him.[98] He agreed that he abused the officer but said that he approached him to come into the Applicant’s cell.[99]
[96] Exhibit 1, 1086.
[97] Transcript of proceedings, 20 May 2021, 14.
[98] Transcript of proceedings, 20 May 2021, 14.
[99] Transcript of proceedings, 20 May 2021, 15.
The Applicant agreed he was involved in a fight with another detainee 8 April 2017, and was taken to three days of cell confinement as a result.[100] He was asked about a computer mouse and contraband found in his possession, and he said that he was holding these for another inmate.[101] He told the Tribunal that he only got into trouble on three occasions while he was in prison.[102]
[100] Exhibit 1, 1105, 1110; Transcript of proceedings, 20 May 2021, 16.
[101] Transcript of proceedings, 20 May 2021, 16.
[102] Ibid.
The Applicant completed courses in prison directed at Alcohol and Drug awareness, and received a Certificate of Graduation dated 1 July 2019 of the Solaris Therapeutic Community which indicates he completed modules on Family Violence and Victim Awareness.[103] The Applicant provided the following evidence of courses he has completed:
·Certificate of Achievement awarded on 30 May 2017 by the ACT Corrections Programs Unit for completion of ‘First Steps to Anger Management Program’.[104]
·Certificate of Participation awarded on 6 December 2018 by Directions for ‘Alcohol Drug Awareness (harm) Prevention Training (ADAPT)’.[105]
·Certificate of Graduation awarded on 1 July 2019 from the Solaris Therapeutic Community.[106]
[103] Exhibit 1, 91.
[104] Exhibit A10, 7.
[105] Ibid, 1.
[106] Ibid, 2.
Behaviour in immigration detention
After completing his sentence, the Applicant was released into immigration detention and is currently detained at Christmas Island Detention Centre.
On 15 February 2021, the Applicant was aggressive and abusive towards escort staff when he was being transported to Christmas Island Hospital after he had been assaulted by three inmates.[107] He told the Tribunal that he was abusive towards the officers because they attempted to transport one of the inmates who had assaulted him in the same van. One of the officers later apologised to him for doing so.[108]
[107] Exhibit 5, Incident Report 1, 3; Transcript of proceedings, 6 May 2021, 322-324.
[108] Transcript of proceedings, 6 May 2021, 324.
On 11 March 2021, the Applicant was reported to have been abusive and aggressive towards a detainee service officer when medication was given to him.[109] He told the Tribunal that he was relaxing in his room and an officer knocked on his door very loudly and it scared him so he swore at the officer, who then apologised to him. A bit later another female officer came and knocked loudly on his door.[110] He made a complaint in relation to these incidents, and the manager came and spoke to him about it and told him that the officers had been moved to a different unit and the complaint could be withdrawn.[111]
[109] Exhibit 5, Incident Report 2, page 2; Transcript of proceedings, 6 May 2021, 324-329.
[110] Transcript of proceedings, 6 May 2021, 324-329.
[111] Exhibit 5, Incident Report 2, page 2; Transcript of proceedings, 6 May 2021, 326.
Applicant’s daughters
The Applicant confirmed that he has two daughters, CS aged eight years who lives with her mother in Adelaide, and AE aged four years who lives with her mother in Brisbane.
The Applicant remains in contact with CS and he supports her financially, most recently to buy medication that she needed.[112] He said that he and her mother are jointly responsible for decisions in relation to CS. The Applicant did not provide any financial support initially after AC moved back to Adelaide, but he did so when CS started school.[113] He used money he earned in prison to obtain access to a mobile phone credit so he could remain in contact with CS.[114] He is contact with CS once or twice a week via Facetime.[115] He told the Tribunal that if he is released, he will travel to Adelaide to visit CS.[116]
[112] Transcript of proceedings, 20 May 2021, 19.
[113] DPGF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) (Migration) [2020] AATA 3523, [48].
[114] DPGF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) (Migration) [2020] AATA 3523, [68].
[115] Transcript of proceedings, 20 May 2021, 37.
[116] Transcript of proceedings, 20 May 2021, 36.
The Applicant has no contact with SE, the mother of AE. He speaks to AE by Facetime when she goes to his father’s house, and they are in contact about once a week.[117] The Applicant agreed that he has not spent much time with AE since she was born, as he has been incarcerated in gaol or immigration detention for almost three years.[118] He said that in total he spent about a year and a half at most living with AE.[119] His father has told him that SE has said that she is happy for AE to come and stay with him if he is released.[120]
[117] Transcript of proceedings, 20 May 2021, 35.
[118] Transcript of proceedings, 20 May 2021, 25.
[119] Transcript of proceedings, 20 May 2021, 26.
[120] Transcript of proceedings, 20 May 2021, 35.
Applicant’s cousins
The Applicant has three cousins, YM, NM, and JM, who are minors aged 13, 9 and one year respectively.[121] They are the children of his first cousin D. He lived with D and the two older children for about six months when he was living in Brisbane.[122] He stays in contact with them by phone or Facebook. He last spoke to them at Christmas 2020.[123]
[121] Transcript of proceedings, 20 May 2021, 38.
[122] Ibid.
[123] Transcript of proceedings, 20 May 2021, 39.
Family in South Sudan
The Applicant’s evidence is that that his father knows people in Yambio in South Sudan, but he does not know them.[124]
[124] DPGF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) (Migration) [2020] AATA 3523, [71].
Family in Australia
The Applicant has a large extended family in Australia. He is in contact with some members regularly including his father, brother, step-mother and first cousin.[125]
[125] DPGF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) (Migration) [2020] AATA 3523, [72].
Plans for the future
The Applicant told the Tribunal that if he is released, he will return to Brisbane to live with his father. He will work in the construction industry and wants to complete his apprenticeship as a bricklayer.[126] He has cousins who work in the construction industry and they have contacts that will help him to find work in Brisbane.[127]
[126] Transcript of proceedings, 20 May 2021, 34.
[127] Transcript of proceedings, 20 May 2021, 34-35.
Fears and impediments on return
In his Personal Circumstances Form dated 11 October 2019, provided in support of this revocation request, the Applicant stated that he would fear for his safety if he is returned to South Sudan. He wrote that there is ‘a lot of war there in[no]cent [people] getting killed’.[128] In his statement of facts filed on 25 July 2020, the Applicant claimed ‘I’m pretty sure the reason we left [was] because it wasn't safe for us there with all the war gone[sic] on’.[129] The Applicant made similar claims in his statement of facts dated 18 April 2021.
[128] Exhibit 1, 210.
[129] Exhibit A1, 428.
The Applicant told the Tribunal that he fears for his life if he were returned to South Sudan. He has these fears because he and his family came to Australia after fleeing Sudan. He is concerned that people might recognise his name and remember his father.[130] He was recently told by a fellow detainee that there is an ongoing war in South Sudan and that two of the tribes are fighting each other.[131] He does not know anyone in South Sudan.[132] All of his uncles he knew in Egypt are now in Australia.[133]
[130] Transcript of proceedings, 5 May 2021, 237.
[131] Transcript of proceedings, 20 May 2021, 34.
[132] Transcript of proceedings, 20 May 2021, 30.
[133] Transcript of proceedings, 20 May 2021, 30.
During cross-examination at the hearing, the Applicant was asked about his fears in relation to returning to South Sudan. He stated:
Yes, well you know why my dad … what he had, what he went through and everything. And like I got the same - the same last name as him, you know? And, like, what is it called - not just dad - dad too and plus what’s going on there, like, I get frightened you know. Like, how can I go to somewhere where I don’t know where is it. And plus my dad moved from there because his life was in danger. And now they’re going to send me back there - and especially when I’m hearing from other boys there’s people getting killed, kids getting killed. There’s kids that have been taken - they have been taking kids to be soldiers, forcing them to be soldiers, (indistinct) that’s what I heard from someone (indistinct), like - and, like, that frightens me, you know, like I get frightened of that, you know, like what happens if I go there and then something happens to me (indistinct) or someone - you know, like, what is it called - someone just like - like (indistinct) I use the same last name as my dad, you know. So what happens if I go there and someone, you know, like - you know, something happen to me. Like, I get frightened of that every time I think about it. You know, and especially when I’m hearing people getting killed left and right. That just adds onto it.
The evidence before the Tribunal is that the Applicant’s father’s humanitarian visa was granted on the basis of religious persecution.[134] He claimed that he preached Christianity in Khartoum, Sudan, and was arrested and tortured on the accusation of hosting anti-government forces and inciting Muslim youths to convert to Christianity.[135] The Applicant confirmed in his oral evidence at the hearing that he identifies as a Christian and is of Azande ethnicity.
[134] Exhibit 1, 322; 377.
[135] Exhibit 1, 397.
The Applicant filed with the Tribunal various unattributed country information. It appears to be derived from the following sources:
·‘Horrific attacks prompt South Sudan’s communities to form armed groups’, The Guardian, 7 December 2015, relating to the situation in Western Equatoria following ‘a peace deal in August’ and random shootings by Dinka soldiers; [136]
·‘South Sudan Refugee Crisis Explained’, UNHCR, 1 May 2019, relating to the refugee and internally displaced persons situation in South Sudan; [137] and
·‘Child soldiers of South Sudan’, Al Jazeera, 30 October 2018, relating to child soldiers in South Sudan.[138]
[136] Simona Foltyn, ‘Horrific attacks prompt South Sudan's communities to form armed groups’, The Guardian (online, 7 December 2015) <
[137] UN Refugee Agency, ‘South Sudan Refugee Crisis Explained’, USA for UNHCR (1 May 2019) <
[138] Aljazeera, ‘Child Soldiers of South Sudan’, Aljazeera (30 October 2018) <
The Respondent drew the Tribunal’s attention to country information relevant to the Applicant’s claims relating to the circumstances he would face if returned to South Sudan.
·Department of Foreign Affairs and Trade (DFAT) travel advice in relation to South Sudan on 29 March 2021:[139]
·DFAT country information report in relation to South Sudan 5 October 2016 2016[140]
·UK Government travel advice:[141]
·Country information from the European Asylum Support Office dated 24 April 2020[142]
·United Nations Secretary-General quarterly report on the situation in South Sudan dated 9 December 2020[143]
·United Nations Secretary-General report dated 23 February 2021[144]
·map of distribution of ethnic groups in southern Sudan published by the United Nations Office for the Coordination of Humanitarian Affairs (OHCA) in 2009.[145]
[139] DFAT, ‘Destinations – South Sudan’, Smart Traveller (23 March 2021) <
[140] Exhibit R4, 524.
[141] Government UK, ‘Foreign Travel Advice South Sudan’, Government UK (undated) <
[142] Exhibit R5, 541.
[143] United Nations Security Council, Situation in South Sudan, UN SCOR S/2020/1180 (9 December 2020)
[144] United Nations Security Council, Situation in South Sudan, UN SCOR S/2021/172 (23 February 2021)
[145] Exhibit R1, 478.
Evidence of Applicant’s father - JPSS
The Applicant’s father provided a letter of support for the Applicant dated 30 March 2021and gave oral evidence by telephone at the hearing. He told the Tribunal that he is the Chairman of the Azande Community Association in Queensland which has 20 or 30 members.
He confirmed that his parents and siblings still live in Yambio.[146] However, they will be unable to assist the Applicant if he returns to South Sudan, as his parents are elderly and they are struggling to survive themselves.[147] He regularly sends them money to assist them financially.[148] He agreed that if the Applicant was returned to South Sudan that he would be able to send his son money, but there would be no one there who could be responsible for him, and there is no security for him there.[149]
[146] Transcript of proceedings, 20 May 2021, 44.
[147] Transcript of proceedings, 20 May 2021, 45.
[148] Transcript of proceedings, 20 May 2021, 46.
[149] Transcript of proceedings, 20 May 2021, 47.
He told the Tribunal that he does not see his grand-daughter AE very often. He is confident that the Applicant will not re-offend. He stated, ‘I’ll help him out and I’ll talk to him, he won’t offend.’[150]
EXERCISE OF DISCRETION TO REVOKE MANDATORY CANCELLATION
[150] Ibid.
1) Does the Applicant pass the ‘character test’?
In the representations and documents that the Applicant submitted to the Department and the Tribunal, he does not dispute the information in the National Criminal History Check report dated 23 October 2019 regarding his criminal convictions and sentences. It records that on 12 December 2018, the Applicant was convicted in the ACT Magistrates Court of four offences: Assault occasioning bodily harm for which he was sentenced to two months’ imprisonment; Choke, suffocates, strangles another and Common assault, for which he was sentenced to six months’ imprisonment for each offence; and Choke person render insensible for which he was sentenced to 18 months’ imprisonment with a non-parole period of 12 months.[151]
[151] Exhibit R1, page 39.
The Tribunal is satisfied that the Applicant has a ‘substantial criminal record’ for the purposes of section 501(3A)(a) and section 501(6) of the Act as he has been sentenced to a term of imprisonment of 12 months or more: section 501(7)(c). The Tribunal is also satisfied, for the purposes of section 501(3A)(b) of the Act, that on 4 October 2019, the Applicant was serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Australian Capital Territory.
Having found that the Applicant does not satisfy the character test, the Tribunal finds that section 501CA(4)(b)(i) cannot be invoked to revoke the Mandatory Visa Cancellation Decision.
2)Is there ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked?
In determining whether pursuant to section 501CA(4)(b)(ii) of the Act there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, the Tribunal must in accordance with paragraphs 8 and 9 of the Direction take into account the relevant ‘primary considerations’ and ‘other considerations’.
PRIMARY CONSIDERATIONS
Primary Consideration 1 – Protection of the Australian community
Reiterating the general guidance and principles in the Direction, paragraph 5.2 states that:
a)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; and
b)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage 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.
Paragraph 8.1(2) states that in considering the need for protection of the Australian community, decision-makers should also have regard 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.
(a) Nature and seriousness of the Applicant’s conduct to date
Paragraph 8.1.1(1) sets out factors to be considered in determining the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. Relevant to the Applicant’s conduct, the Tribunal must have regard to the following factors:
(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)   …
(ii) …
(iii)   …
(iv)   …
(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)…
(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 an absence of a warning should not be considered to be in the non-citizen’s favour).

Having regard to the factors in paragraph 8.1.1(1) of the Direction, the Tribunal finds, for the following reasons, that the Applicant’s offending is very serious. His criminal history is extensive, and he has been a frequent offender over a sustained period. He was found guilty of more than 50 offences on some 20 court dates between 2011 and 2018.
The Applicant’s earlier offences in 2011 involved relatively minor transport offences. In 2012 and 2013, he was found guilty of a number of relatively more serious offences relating to resisting or obstructing police and a drug offence. He has been convicted of eight offences relating to resisting or failure to cooperate with police officers, including Resisting or hindering a police officer in the execution of his duty, Failure to state name and address when directed, and Contravening a direction or requirement of a police officer.
The Applicant has been found guilty of 17 traffic offences relating to driving whilst unlicensed or licence suspended, driving under influence, driving unregistered vehicles, driving uninsured vehicles and number plate offences. Whereas these offences are individually less serious than his violent offending, they are nevertheless serious as they demonstrate the Applicant’s lack of respect for the safety of other road users and Australian laws. The cumulative effect of these offences has placed the Australian community at risk of harm. In making this finding, the Tribunal notes with concern in relation the convictions recorded on 14 May 2018, that up to four of these offences were committed concurrently.
From 2017 the Applicant’s offending escalated in seriousness. In 2017 and 2018, he was convicted of nine violent offences, initially directed at strangers, and later towards his partner in a family violence context. The family violence offences which the Applicant committed against SE were extremely serious. The offence of Choking a person and rendering them insensible, for which he was sentenced to 18 months’ imprisonment involved choking SE to the point where death was ‘not very far away’. As the Magistrate rightly observed, ‘Partners, parents and family members are entitled to feel safe when with their family members. They are also entitled to feel safe at home’. As required by paragraphs 8.1.1(a)(i), (ii) and (iii) of the Direction, the Tribunal finds that the Applicant’s criminal offending is very serious.
In determining the seriousness of the Applicant’s conduct, paragraph 8.1.1(c) of the Direction also requires the Tribunal to consider the sentence imposed by a court in relation to offences committed by him (other than those relating to his violent crimes against women or children and acts of family violence, which must be viewed very seriously regardless of the sentence imposed). The custodial sentences imposed on the Applicant by the courts noted in paragraphs 40, 42, and 46-47 above, are an objective indicator of the seriousness of his criminal offending. Sentences involving terms of imprisonment are a last resort in the sentencing hierarchy, which reflects the objective seriousness of the offences involved: Jal v Minister for Immigration and Border Protection [2016] AATA 789 at [24]; PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22] and Saleh and Minister for Immigration and Border Protection [2017] AATA 367 at [50]. The two sentences of eight months’ imprisonment imposed by the Court in relation to the Reckless threat to kill offences and the two months’ imprisonment sentence in relation to the Common assault offence indicate the objective seriousness of the Applicant’s offences. In making this finding the Tribunal notes that the sentencing Magistrates took into account various mitigating factors in imposing these sentences.
In relation to the factors in paragraph 8.1.1(1)(d) and (e), the Applicant’s violent offending, has been frequent and re-occurring since 2017. The Applicant assaulted his partner and mother of his youngest daughter, SE, on at least three occasions. In addition, he was involved in violent incident involving two strangers during which he made threats to kill while holding a knife. This conduct is very serious, and the cumulative effect of the Applicant’s violent offending raises significant concerns for the safety of the community if he were to have his visa re-instated.
On the basis of the evidence before it, and for the stated reasons, the Tribunal finds that the Applicant’s criminal offending is very serious in nature, and this weighs strongly against the exercise of the discretion to revoke the Mandatory Visa Cancellation Decision.
(b) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) of the Direction states
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, 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 harms 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) of the Direction provides that in assessing the risk that may be posed to the Australian community, decision-makers must have regard to, cumulatively:
a)    The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)    The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)     the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)    evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
…
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct
Having regard to the nature of the harm to individuals or the Australian community if the Applicant were to reoffend in accordance with paragraph 8.1.2(2)(a) of the Direction, the Tribunal finds that the harm to individuals, including those who are in a close relationship with the Applicant, should he engage in similar conduct could include extremely serious physical or psychological injury or death. The Applicant has demonstrated a propensity to act violently with disregard for the harm he causes his victims. The Applicant’s criminal offending and other serious conduct has included actual and threatened physical violence committed against his former partner and strangers. If his previous violent behavior were to be repeated, this would pose a significant risk to members of the community, including women and children.
The Applicant’s offence of Choke person render insensible offence demonstrated his indifference to human life. As Magistrate Theakston relevantly observed, ‘this matter could have been much more serious had the [Applicant] continued to hold [SE] for a longer period’. The Tribunal has previously recognised the physical and psychological harm that is caused by violent behaviour in a domestic context. In XFKR and Minister for Immigration and Border Protection [2017] AATA 2385 (‘XFKR’), the Tribunal observed at [45]:
The Tribunal would add that, in a society that adheres to fundamental sex equality principles, violence that is gendered and directed at women (and which seeks to degrade and dehumanise women on the basis of sex) is both individually and systemically intolerable. Its harms are threefold. First, it results in direct physical and psychological harm for those women against whom the violence is directed. Second, it psychologically harms the children of these women — children who, as in this instance, witness their mothers being abused, degraded and dehumanised — and send a message to those children (male and female) that behaviour of this sort is to be tolerated. Third, it normalises those socially enforced gender imbalances that allow sex based inequalities and violence to arise in the first place. The impact this has, socially, on systemic equality between the sexes cannot be underestimated.
The Applicant's Reckless threat to kill offences were directed at two members of the community who were unknown to him, and the consequence of an unprovoked incident. The Applicant produced a knife after making a number of threats to kill the victims. Such offences have the effect of placing the general public in significant fear of their safety in the community, and the result of similar violent offending in the future could include serious physical or psychological injury to potential victims.
Were the Applicant to again to engage in driving and traffic offences, this would place the safety of other road users at risk of serious harm including serious personal injury or death and economic loss. If the Applicant were to continue to act contrary to police directions or resist police in the course of their duties, such conduct would present an unacceptable risk of harm to law enforcement officers. In addition to the potential physical and psychological harm to the Applicant’s victims, there is the significant financial cost to the community associated with emergency services and law enforcement activities of any future offending by the Applicant. For these reasons, the Tribunal finds that the nature of the harm to individuals and the community should the Applicant continue to engage in similar criminal offending is very serious.
(b) The likelihood of the non-citizen engaging in further criminal or other serious conduct
Having regard to the likelihood of the Applicant engaging in further criminal or other serious conduct in accordance with paragraph 8.1.2(2)(b) of the Direction, the Tribunal notes that the Applicant has expressed his remorse for the offences he has committed. The Applicant claims that he has changed and has undertaken programs and learned necessary tools to avoid acting in an unacceptable and criminal manner in the future. He wishes to be a role model for his children and ‘do the right thing’ for them and his family.[152] He claims he was previously unaware that his visa may be cancelled as a result of his conduct, and now that he is aware of this it will prevent him from committing further offences. The Respondent submits that there is a likelihood that the Applicant will reoffend, as despite being sentenced on multiple occasions, and despite the increasing severity of the sentences imposed, the Applicant continued to re-offend.
[152] Exhibit 1, 195.
The Applicant’s risk assessment for sentencing purposes indicates he is a medium risk of reoffending. The pre-sentence reports from ACT Corrective Services for both the Reckless threat to kill and Choke person render insensible offences indicate that the Applicant was assessed a medium risk of general reoffending.[153] These reports appear to be the only formal assessments available in relation to the Applicant’s risk of reoffending and were relied upon by the sentencing courts. The Tribunal has given these reports appropriate weight in considering the likelihood of the Applicant engaging in further criminal or other serious conduct.
[153] Exhibit 1, 1396; 1431.
The Applicant has a history of repeat offending over a sustained period, and despite the various opportunities afforded to him, including non-custodial sentences, he continued to commit further offences. After being sentenced to eight months’ imprisonment for the Reckless threat to kill offence in 2017 and having been incarcerated, he proceeded to re-offend following his release and committed more serious offences, resulting in his second and significantly longer custodial sentence of 18 months’ imprisonment concurrent. This indicates that even the serving of a custodial offence did not effectively deter the Applicant from engaging in criminal conduct.
The Applicant breached a number of judicial orders between 2013 and 2018, including good behaviour bonds, probation conditions, bail orders and failure to appear in court, and two of his convictions were resentenced as a result of him breaching court orders.[154] He continued to offend whilst he was under good behaviour obligations,[155] and repeatedly failed to comply with his good behaviour bond reporting obligations.[156] The fact that the Applicant continued to breach various court obligations in circumstances where he had been on notice that failure to comply with such orders would result in further consequences, demonstrates his lack of respect for the law and the legal system, and casts considerable doubt on his ability to comply with the law in the future.
[154] Exhibit 1, 165-171.
[155] Ibid.
[156] Exhibit 1, 1358.
The Applicant pleaded not guilty to the Choke person render insensible offence.[157] Whilst he pleaded guilty to the Reckless threat to kill offence, Magistrate Cush noted that it was ‘late in the day’ and on legal advice.[158] These actions suggest that the Applicant was unwilling to accept the consequences of his actions at the time.
[157] Exhibit 1, 178.
[158] Exhibit 1, 174.
While the Applicant has expressed his remorse for his offences against SE, he continues to dispute the facts surrounding the incidents. In relation to the injuries sustained by SE on 7 August 2018, the Applicant continues to claim that they were either self-inflicted or caused by another person,[159] despite a report by Dr Thomas who examined SE and reported that her injuries were consistent with her claim that the Applicant had choked her.[160] The Applicant continued to deny that SE lost consciousness when he choked her on 8 August 2018, despite the findings of the Court, witness evidence from Ms D and observations of SE by police. The pre-sentence report notes that the Applicant denied any use of violence beyond pushing SE, and ‘focused more on his partner's behaviour than his own’.[161] The Applicant’s evidence to the Tribunal was that he committed the choking offence because SE was intoxicated and was trying fight him, and that he applied force to her neck in order to calm her down.[162]
[159] Transcript of proceedings, 6 May 2021, 284, 287.
[160] Exhibit 1, 851; see also DPGF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) (Migration) [2020] AATA 3523, [101(c)].
[161] Exhibit 1, 1433.
[162] Transcript of proceedings, 6 May 2021, 265-266; see also DPGF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) (Migration) [2020] AATA 3523, [101(d)].
In relation to the Reckless threat to kill offence, the Applicant continues to deny that he wielded his knife at the victim, and claims that the victims drove their car dangerously near him and approached him as though they were going to fight him.[163] He also denies that he drove his motor vehicle into the victim following a collision with the victim’s vehicle, in circumstances where the victim was attempting to prevent the Applicant from absconding, despite the evidence of witnesses detailed in the police report.[164]
[163] Transcript of proceedings, 6 May 2021, 290-292; see also DPGF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) (Migration) [2020] AATA 3523, [101(b)].;Exhibit 1, 232-233.
[164] Transcript of proceedings, 6 May 2021, 291-292; see also DPGF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) (Migration) [2020] AATA 3523, [51].
The Applicant’s lack of insight into his offending indicates that he does not realise the seriousness and impact of his criminal behaviour, which undermines his claims he will not reoffend. His ongoing attempts to minimise his culpability and his belief that his conduct was somehow justified, show that the Applicant is not genuine remorseful, nor that he has he taken full responsibility for his offending. The Tribunal therefore cannot be satisfied that the Applicant has reformed and is unlikely to reoffend in the future.
It appears from the pre-sentence reports that the Applicant’s offending is at least partly related to his anger management issues and substance abuse.[165] The evidence before the Tribunal is that the Applicant has had ongoing issues with alcohol and cannabis abuse since the age of 14.. Following his release from his first custodial sentence in July 2017,[166] the Applicant committed a drink driving offence on 29 April 2018.[167] In relation to his most recent offences, the Magistrate Theakston observed it was ‘unclear’ whether the Applicant’s history of reliance on alcohol and cannabis continued.[168] It remains unclear whether the Applicant would use alcohol or cannabis if he were released into the community, where such substances would be more readily available. Although the Applicant completed an anger management course in May 2017,[169] there is little evidence that the Applicant can now effectively manage his anger. The fact that he offended in a serious and violent manner towards SE in March and August 2018 when he became angry with her for drinking, indicate that this program was not effective in giving the Applicant the tools he requires to manage his anger issues.
[165] Exhibit 1, 1396-1399, 1431-1434.
[166] Exhibit 1, 179.
[167] Exhibit R8, 855.
[168] Exhibit 1, 179.
[169] Exhibit 1, 220.
The evidence also is that the Applicant continued to conduct himself in an aggressive manner whilst he was in custody. Records from ACT Corrective Services indicate that the Applicant verbally abused and threatened correctional officers, contravened various directions, caused disturbances, and engaged in fights with other detainees. In addition, there are recorded incidents in immigration detention when the Applicant was aggressive and abusive towards detention centre officers and other detainees. Given that the Applicant has continued to act inappropriately within a controlled environment, despite the safeguards in place to deter such behaviour, the Tribunal cannot be satisfied that the Applicant would not be at significant risk of re-offending if he were released into the community.
On the basis of the evidence before it and taking into account available information and evidence on the risk of the Applicant re-offending and his rehabilitation, the Tribunal finds that the likelihood of the Applicant engaging in further criminal or other serious conduct is moderate. In the context of the potential serious harm to the Applicant’s victims should he engage in the same or similar criminal conduct in the future, the Tribunal finds this risk to be unacceptable.
For the reasons above and applying the guidance in paragraphs 8.1.1 and 8.1.2 of the Direction, Primary Consideration 1 weighs on balance against the revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 2 – Family violence committed by the non-citizen
This Primary Consideration is relevant in the Applicant’s circumstances as he has been convicted of offences that involve family violence.
Paragraph 8.2(1) of the Direction provides that the Australian Government has ‘serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia’, and that the Government’s concerns are proportionate to the seriousness of the family violence engaged by the non-citizen.
Paragraph 8.2(2) provides that this consideration is relevant in circumstances where a non-citizen has been found guilty of an offence involving family violence, or where there is information from independent and authoritative sources indicating that the non-citizen has been involved in the perpetration of family violence (where the non-citizen has been afforded procedural fairness).

The most recent DFAT Country Information Report for South Sudan was last revised on 5 October 2016,[189] and does not fully reflect the latest political developments and the current security situation. However, it relevantly states the following in relation to ethnicity and religious affiliation:
3.1 … Credible in-country sources, including human rights contacts, suggest that there is a significant correlation between ethnicity and an individual’s risk of discrimination and violence. DFAT assesses that ethnicity is the most significant determinant of an individual’s risk of experiencing official and societal discrimination and violence in South Sudan
…
3.15 Christianity is the dominant religion in South Sudan and there are a number of different Christian churches (see 2.10). Under the former colonial administration, different Christian churches were allowed to establish themselves in different areas of South Sudan. The prominence of particular Christian Churches in particular areas, coupled with societal discrimination as result of an individual’s ethnicity, has led to some individuals being unwelcome at Christian churches associated with opposing ethnic groups. DFAT assesses that this is more likely due to someone’s ethnicity, rather than their religious affiliation.
…
3.18 Overall, based on in-depth discussions with in-country contacts, DFAT assesses that individuals are unlikely to experience official or societal discrimination or violence on the basis of their religious identity alone. DFAT acknowledges that there are some limited examples of Muslims experiencing official or societal discrimination ...
[189] DFAT, DFAT Country Information Report South Sudan (report) 5 October 2016.
In AAT MRD 2102559 (unreported, 25 May 2021), the Tribunal made the following observations in relation to the situation for ethnic and cultural communities:
52. … Although the Transitional Constitution of the Republic of South Sudan states that all ethnic and cultural communities have the right to freely enjoy and develop their cultures and practice their beliefs and customs, according to the DFAT report South Sudan remains a highly traditional society, founded on familial and genealogical ties where ethnicity is a common cause of societal and official discrimination and violence. DFAT assesses that ethnicity is the most significant determinant of an individual’s risk of experiencing official and societal discrimination and violence in South Sudan, and that this intensified following the outbreak of conflict in December 2013 which intertwined both ethnicity and political opinion.
53. It is reported by DFAT that official and societal violence linked to an individual’s ethnicity occurs in two distinct ways:
As a result of the formal conflict between the Government and Sudan People’s Liberation Movement-In-Opposition (SPLM-IO) and due to informal inter-tribal conflict. Tensions between the Dinka and Nuer ethnic groups have been historically common in South Sudan, with relations between them being punctuated by informal inter-tribal conflict, and now direct and open conflict. The dynamics within the Dinka and Nuer ethnic groups, however, are also complex – for example, a number of Nuer sub-ethnic groups remained loyal to the Dinka-linked Government following the outbreak of conflict in December 2013. While no ethnicity is exempt from experiencing official or societal discrimination or violence, DFAT assesses that there are three prominent ethnic groups (Dinka, Nuer and Shilluk) who are most at risk, owing to their active involvement in the conflict between the Government and SPLM-IO.
54. … It is noted that this advice dates back to 2016, prior to the signing of the R-ARCSS, and the power sharing agreement that arose with the formation of the unity government in 2020. There is more recent reporting suggesting that despite a peace deal South Sudan’s contemporary history suggests that conflict could erupt anytime due to the tense and uptight military balance in the capital. Hence, despite the new peace agreement, the country will not be experiencing stability anytime soon.
55. The US State Department's Country Report for 2020 states that interethnic fighting and violence by government, opposition forces, and armed militias affiliated with the government and the opposition targeting specific ethnic groups resulted in human rights abuses and have continued throughout the year. The Report goes on to state that inflammatory rhetoric – including hate speech – and discriminatory government policies led to a heightened sense of tribal identity, exacerbating interethnic differences. On 9 July 2020, President Kiir acknowledged that intercommunal fighting ‘threatens to rip the country apart’. There has been ongoing significant levels of general violence in the Central Equatoria region in which Juba is located. A February 2020 report from the United Nations Security Council explains the situation in Central Equatoria and comments that tensions between the South Sudan People’s Defence Forces and the National Salvation Front (NAS) continued. Tensions within SPLA-IO also affected their participation in the transitional security arrangements and led to violence. A United Nations Human Rights Council report from January 2020 reports that while parts of Central Equatoria State were controlled by elements of the National Salvation Front and the SPLA-IO (pro- Vice President Riek Machar), others remained under the control of government forces. The fragmentation of armed actors in Greater Upper Nile and Central Equatoria regions also contributed to ongoing violence and human rights violations, including conflict related sexual violence. Intercommunal clashes had escalated between January and May 2020 with 415 violent incidents recorded, as compared with the period between January and May 2018, where there were only 129 intercommunal clashes in the same area. On 3 June 2020, South Sudanese forces killed four civilians and wounded seven others in Juba over a land dispute. This was followed by peaceful demonstrations which led to police shooting and killing more with multiple injuries and arrests. In April to May 2020, Human Rights Watch reports that clashes between NAS and South Sudan People’s Defence Forces (SSPDF) in Juba county leading to the displacement of 19,000 people. According to reports to the Security Council in September 2020, in Central Equatoria, the NAS has launched a series of politically motivated attacks, and despite claims that its actions are defensive, civilians and humanitarians are among the casualties of their ambushes.
56. On 14 August 2020, the Commission of Human Rights in Sudan noted an escalation of violence in the majority of the regions of South Sudan and remained concerned at the lack of accountability for incidents of intercommunal violence, including an absence of prosecutions. There was reference to armed conflicts being transformed into a ‘series of localised conflicts’ often presented ‘simply as cattle raiding’ but increasingly politicised with many groups operating as organised militias under the control of the main parties to the conflict.
…
58. The United Nations Human Rights Council in February 2021 referred to the findings by the Commission on Human Rights in South Sudan, that 10 years after independence there are ‘staggering levels of violence’ with more than 75% of the country engulfed in brutal violence. The Report refers to an intensification of attacks against the civilian population along ethnic lines with almost no accountability. The Report states that ‘localised conflict also continued to pose a massive risk to stability in South Sudan, given the lack of accountability for gross human rights violations and abuses and violations of international humanitarian law. The risk to stability is compounded by weak State structures, including at the subnational level, predatory elites and their competition for political power and economic resources, as well as the failure to manage ethnic divisions and plurality’.
The Tribunal further noted the following recent country information in relation to the forced recruitment of adults and children by both government and anti-government forces:
61. The United States Department of State Report on Human Rights Practices for 2021 has commented on forced recruitment of child soldiers as follows:
Following the outbreak of conflict in 2013, forced conscription by government forces, as well as recruitment and use of child soldiers by both government and antigovernment forces, increased. During the year, the cease-fire largely held, reducing the forced or voluntary recruitment of soldiers, including child soldiers. Nevertheless, there were reports these forces continued abducting and recruiting child soldiers. In 2019 the UN verified 270 grave violations involving 250 children by the SPLA‑IO, government security forces (including the, SSNPS and NSS), the South Sudan United Front/Army, the National Salvation Front, the South Sudan Opposition Alliance (SSOA), and the National Democratic Movement.[190]
62. The 2021 European Asylum Support Office report has commented that there is ongoing recent forced recruitment of both children and adults:
Throughout 2020, the issue of forced recruitment was also highlighted. In February 2020, UNMISS documented ‘a surge in the forced military recruitment of civilians and alleged former fighters by the major warring parties and their allies’. In April 2020, the UN Panel of Experts pointed out that the practice of forced recruitment of children and adults in the country ‘remained unabated’, as ‘both SSPDF and SPLA-IO have targeted children and young people for recruitment’. The same source described the ‘abduction campaigns’ of the SSPDF and SPLA-IO, where ‘pickup trucks with armed and unarmed men, some in uniform, arrived at villages during the day, stopped children and young people and forced them into the trucks’. In its December 2020 report, the UN highlighted the ‘alarming increase in the abduction of civilians [..] primarily for the purpose of forced military recruitment’ in Central Equatoria’.[191]
[190] United States Department of State, Country Reports on Human Rights Practices South Sudan 2020, 30 March 2021.
[191] European Asylum Support Office, COI Query Response – South Sudan: Security Situation (26 February 2021).
Is the Applicant owed non-refoulement obligations?
In accordance with paragraph 9.1 of the Direction, the Tribunal has considered whether the Applicant’s circumstances engage Australia’s international non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (the Refugees Convention), [192] the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT),[193] and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).[194]
[192] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954).
[193] 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).
[194] International Covenant on Civil and Political Rights, opened for signature 19 December 1996, 999 UNTS 171 (entered into force 23 March 1976).
a)Article 33(1) Refugees Convention
The Tribunal has considered whether the Applicant’s life or freedom would be threatened on account of his Christianity, or for reason of his ethnicity as a member of the Azande, on return to South Sudan in accordance with Article 33(1) of the Refugees Convention. The country information referred to in paragraphs 162, 164, 165-167 above, indicates that members of the Azande, unlike other ethnic groups in South Sudan, are currently unlikely to experience discrimination or violence in Yambio or Western Equatoria State. The OHCA ethnic group distribution map indicates that Yambio, the hometown of the Applicant’s father, has a predominantly Azande population. If the Applicant returns to South Sudan, he is most likely to live in Yambio where his father has some family members. On the basis of the country information before it, the Tribunal is satisfied that the Applicant’s life or freedom will not be threatened on account of his ethnicity if he returns to Yambio.
The country information referenced in paragraph 165 above, indicates that Christianity is the dominant religion in South Sudan.[195] This information supports a finding that it is unlikely that the Applicant’s life or freedom would be threatened on account of his religion or that he would face religious discrimination or violence of a kind experienced by his father in Khartoum if he were returned to South Sudan.
b) Article 3 CAT
[195] DFAT, DFAT Country Information Report South Sudan (report) 5 October 2016.
c) Articles 6 and 7 ICCPR
The country information above indicates that currently the peace process in South Sudan remains fragile after seven years of war. Inter-ethnic conflicts continue in many parts of the country, although there appears not to be such conflict currently occurring in Western Equatoria. The possibility of increased hostilities in the reasonably foreseeable future cannot be ruled out given South Sudan’s volatile history, and that there are more than 60 ethnic groups in the country, between whom there is a long history of inter-ethnic conflict.[196] However, based on the current country information, the Tribunal cannot be satisfied that there are substantial grounds for believing that the Applicant would be in danger of being subjected to torture: CA,Article 3, or that there is a real risk of irreparable harm to the Applicant such as him being arbitrarily deprived of his life or being subjected to torture or other cruel, inhuman or degrading treatment or punishment if he were returned to South Sudan: ICCPR, Articles 6 and 7.
[196] United States Department of State, Country Reports on Human Rights Practices South Sudan 2020, 30 March 2021.
The Tribunal has considered whether the Applicant is at risk of harm for reason that he may be forcibly recruited by the major warring parties and their allies. It notes that the country information referenced in paragraphs 164-167 above indicates that forced recruitments do occur, and both children and young adults are targeted. However, in so far as this is occurring, it appears from the available country information to not be prevalent in Western Equatoria. Accordingly, the Tribunal is not satisfied that the Applicant is at risk of harm for this reason upon return to South Sudan, such that Australia’s non-refoulement obligations under the CAT or ICCPR are engaged with respect to him.
On the basis of the evidence before it and for the reasons stated above, the Tribunal finds that the Applicant does not engage Australia’s international non-refoulement obligations, and that this other consideration does not weigh in favour of revocation of the Mandatory Visa Cancellation Decision.
Extent of impediments if removed from Australia
The Direction states at paragraph 9.2:
(1)Decision-makers must consider 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 substantial language or cultural barriers; and
(c) Any social, medical and/or economic support available to them in that country.
The Applicant’s evidence is that he has no relatives or other support in South Sudan,[197] and he has not lived there since he was aged two years.[198] He claims he is suffering from PTSD,[199] and he fears for his safety due to the civil and political unrest in South Sudan.[200]
[197] Exhibit 1, 206.
[198] Exhibit 1, 210, 232
[199] Exhibit A1, 1-2.
[200] Exhibit 1, 67.
The Respondent accepts that the Applicant will initially face cultural barriers and emotional hardship should he be returned to South Sudan, and that country information in relation to South Sudan suggests that access to welfare and medical services is limited and violence and civil unrest is common.[201] However, the Respondent contends that the Applicant is relatively young, has transferrable skills and speaks Zande, Arabic and English, and this reduces the impediments he will face.[202]
[201] Exhibit R1, 24.
[202] Ibid, 27.
In its decision in Guot 2101907[203] (4 May 2021), the Tribunal summarised relevant country information in relation to current social and economic conditions in South Sudan:
[203] 2101907 (Refugee) [2021] AATA 1460.
115. There are many reports about poverty fuelled in the last year by flooding, locusts and the COVID-19 pandemic,[204] and the World Food Program reported that 6.48 million people in South Sudan faced acute food insecurity from May to July 2020.[205]
116. The Overseas Security Advisory Council South Sudan 2020 Crime and Safety Report noted poor conditions relating to crime, health facilities and infrastructure in South Sudan ...[206] According to the April 2020 Bertelsmann Stiftung Report, job prospects for the formal and informal sectors are poor, and there is little welfare, with people depending on relatives and networks:
South Sudan does not have a formalized welfare system of any meaningful sort. With more than 80% of its population living in rural areas, a lot of people in South Sudan depend on land for their livelihoods and most social safety nets reflect this dependency on land. The situation in urban centers is, however, challenging. The lack of or presence of limited safety nets makes many civilians vulnerable to shocks such as illness, droughts, floods and insecurity. The social structure, which is based on various traditional practices in South Sudan is a fundamental tool for the provision of safety nets but has its downsides. In most urban centers, the working class often shoulder the burden to assist their relatives through the provision of medical assistance, without connections to influential individuals who are the beneficiaries of various international commercial deals and are in some way involved in the conflict; non-conflict related commercial employment is difficult to procure across South Sudan. Opportunities for low-wage employment in the informal economy are also dismal, leading to the necessity for individuals to become relief dependent, rely on overseas remittances, engage with various factions for subsistence or be conscripted.
Illicit networks which involve arms and human trafficking also support the war economy. South Sudan has one of the most armed populations of any state in the world.
South Sudan is the most oil dependent country in the world, with oil accounting for almost the totality of exports and around 60% of GDP. This leads to a significant dependence on power brokers in rich oil reserve regions located across the territory and along the northern border.
In February 2019 the UN stated that, in view of evidence revealed by investigators from the UN’s Commission on Human Rights in South Sudan, oil companies may be complicit in war crimes and crimes against humanity as oil proceeds are funding government controlled security forces in the country’s war. The poverty in South Sudan stands at 82% whilst the vast majority of oil revenue (90 million barrels produced annually through the state owned company ‘Niplet’) is then withheld by the country’s ‘predatory elite’. It has been reported that South Sudanese nationals cannot afford fuel and must resort to the black market (prices can reach up 300 South Sudanese pounds – or $ 2.3 USD – to fill a one-litre plastic bottle). With limited manufacturing means, oil must first be exported North before being imported as petrol and other refined products.[207]
117. According to a March 2018 Bertelsmann Stiftung report, an individual’s ability to access employment can be closely connected to their tribe or political affiliation:
At the general level, the notion of “equal opportunity” has revolved around the lack of transparency, with high levels of patronage and clientelism. Patronage and clientelism are often associated with whether someone participated in the north‑south civil war that ended in 2005. For example, employment opportunities are often given to people who participated in the civil war or are perceived to be sympathetic to SPLM.[208]
118. The United States Department of State Report on Human Rights Practices 2021 states that there were no mental health hospitals or institutions available, and persons with mental illness are often placed in prisons. Limited mental health services are available at Juba Teaching Hospital.[209]119. Amnesty International has stated that 56% of the population does not have access to primary health care. Although post-traumatic stress disorder is widespread in the population, access to support services is very limited with people often housed in prisons.[210]
[204] United Nations Security Council, ‘Despite Ceasefire Agreement in South Sudan, Intercommunal Conflicts Increase, Humanitarian Needs Grow, Civil Society Representative Tells Security Council’, United Nations Security Council Press Release (16 September 2020) <
[205] World Food Programme, South Sudan Situation Report, 12 June 2020.
[206] United States Department of State, South Sudan 2020 Crime and Safety Report, Overseas Security Advisory Council (OSAC), 29 April 2020.
[207] Bertelsmann Stiftung, BTI 2020 Country Report — South Sudan. Gütersloh: Bertelsmann Stiftung, 2020.
[208] Bertelsmann Stiftung, BTI 2018 Country Report — South Sudan. Gütersloh: Bertelsmann Stiftung, 2018.
[209] United States Department of State, Country Reports on Human Rights Practices South Sudan 2020, 30 March 2021.
[210] Amnesty International, ‘South Sudan 2020’, Amnesty International (undated) <

Having regard to the factors in paragraph 9.2(1)(a), the evidence before the Tribunal is that the Applicant is 27 years of age and is generally in good health. He claims to suffer from PTSD, however there is no evidence of a current diagnosis, or that he is receiving treatment or taking prescribed medication for this condition.
Guided by paragraph 9.2(1)(b) of the Direction, the Tribunal finds that the Applicant will face significant language and cultural barriers on his return to South Sudan. He has no familiarity with the country, having left there as a very young boy. His Zande language skills are limited although he can speak Arabic. Considering the time that he has been in Australia, the Applicant would most likely speak Arabic with a western accent. This, together with his limited knowledge of his tribal or cultural heritage, will set him apart from the community he will join on return to South Sudan. There is a risk that without familial assistance he will not be accepted or fully assimilated into the Azande or wider South Sudanese community, such that he would be afforded any community protection.
Having regard to paragraph 9.2(1)(c) of the Direction, the evidence before the Tribunal is that if the Applicant were to be returned to South Sudan, he would be likely be without a place to live, have no work, and have limited family and community support. The Applicant’s father’s evidence is that his parents and siblings still live in Yambio, however, they will be unable to assist him as his parents are elderly and they are struggling themselves to survive. Whereas the Applicant’s father would be able to send money to his son, he already financially assists his other family members. It is likely that the Applicant would face extreme difficulties given the social and economic situation in South Sudan. The country information referenced in paragraph 177 above indicates that there are several reports of a deteriorating humanitarian situation with flooding, extreme poverty and the COVID-19 pandemic, and the World Food Program reporting that 6.48 million people in South Sudan faced acute food insecurity. The country information further indicates that South Sudan does not have a formalised welfare system, and that opportunities for low-wage employment in the informal economy are dismal, resulting in individuals becoming relief dependent. In addition, the majority of the population does not have access to primary health care, and access to support services for persons with PTSD is very limited, with individuals often housed in prisons.
The evidence before the Tribunal, particularly current country information, supports a finding that the Applicant will face extreme hardship if he is returned to South Sudan. He will have considerable difficulty finding safe accommodation and maintaining basic living standards. Whereas he has some transferable work skills, the opportunities for him to find paid employment are likely to be very limited. In addition, the lack of a welfare system in South Sudan, and the likelihood he will be unable to access health care if he requires it, will place him in a very precarious situation. His likely vulnerability as a consequence of these factors also places him at higher risk of suffering discrimination if not serious harm given the unstable political and security environment in the country.
On the basis of the evidence before it and guided by the factors in paragraph 9.2 of the Direction, the Tribunal finds that this other consideration weighs strongly in favour of the revocation of the Mandatory Visa Cancellation Decision.
Impact on victims
The Direction states in paragraph 9.3:
1)Decision-makers must consider 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
One of the victims of the Applicant’s Reckless threat to kill offence provided a victim impact statement to the court. The victim states that the incident has had a significant impact on his psychological wellbeing:
My routine was to drive back home a couple of times during the night while I was studying to get something to eat. I do not do that anymore as I fear someone would be waiting for me outside my house to harm me …
… Ever since this incident, whenever I hear a vehicle driving past our house I keep listening to the sound to be assured that it was just making a turn and would drive away again. If I hear it stop outside, I have to peek through the window to check who it is and if it is not one of our neighbors or if it is a vehicle that I have not seen before, I start panicking.
…
And since the last few days, the only thing on my mind has been, what would happen if he is released this time. It has literally crossed my mind that he would stab or shoot me while I am asleep, and believe me it is not a pleasant thought.[211]
[211] Exhibit R8, 835.
With respect to the Applicant’s Choke person render insensible offence, the evidence is that SE changed her phone number and moved to a different address shortly after the incidents in August 2018.[212] She also indicated that she would move to a refuge if the Applicant was granted bail, indicating that she had an ongoing fear of him.[213]
[212] Exhibit R8, 885-886.
[213] Exhibit R8, 885.
Whilst the evidence is that the victims of the Applicant’s offending have been impacted by the offending, there is no information available as to how non-revocation of the Mandatory Visa Cancellation Decision would impact them. The Tribunal finds that this other consideration is of neutral impact in assessing the impact on the Applicant’s victims of his family violence offending of a decision to revoke the Mandatory Visa Cancellation Decision.
Links to the Australian community
Paragraph 9.4 of the Direction requires decision-makers to have regard to paragraphs 9.4.1 to 9.4.2 below.
Strength, nature and duration of ties to Australia
Paragraph 9.4.1 requires consideration of the strength, nature and duration of the Applicant’s family and social ties to Australia:
1)Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
2)Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
(a) How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) Less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
189.Having regard to paragraph 9.4.1(2)(a) of the Direction, the evidence before the Tribunal is that the Applicant has resided in Australia since 2006, having arrived in Australia at the age of 12 years. The Applicant attended school in Australia until year 10 and was employed in a number of jobs for various employers. The Applicant’s first court appearance was in 2011, some five years after his arrival in Australia, and his offending continued until his most recent offences in August 2018, following which he has been in custody or immigration detention. As the Applicant’s offending began relatively shortly after his arrival in Australia, and he has made only a limited contribution to the community, the Tribunal has in accordance with paragraph 9.4.1(2)(a)(ii) and (ii) of the Direction given less weight to his ties to Australia.
In relation to the factors in paragraph 9.4.1(1) and 9.4(2)(b) of the Direction, the Applicant has a significant number of family members residing in Australia, including his daughters, his father and step-mother, his brother, uncles and aunts, nieces and nephews, and cousins. The Applicant claims that his removal from Australia would cause hardship for his family and his children,[214] as they will not be able to seehim, they will be concerned about him being in South Sudan alone, and they will not have the Applicant for support.
[214] Exhibit 1, 209.
The extent to which the Applicant has maintained contact with his family members, including his father, when he was living in the various cities of Australia outside Queensland is unclear. It appears that he did so by telephone and other electronic means. Whilst the removal of the Applicant would prevent him from having physical contact with members of his family in Australia, they would be able to continue to communicate via electronic means or members of his family could visit him in South Sudan, or in another country if permitted.
On the basis of the evidence before it, the Tribunal is satisfied that Applicant’s family members, who are Australian citizens or have a permanent right to remain in Australia, would be negatively impacted if the Applicant’s visa is not reinstated and that this consideration weighs marginally in favour of revocation of the Mandatory Visa Cancellation Decision.
Impact on Australian business interests
The Applicant does not claim that any Australian business interests would be affected by his removal to South Sudan. Accordingly, the Tribunal has given the factors in paragraph 9.4.2(3) no weight.
On the basis of the evidence before it, and having regard to the factors in paragraph 9.4, particularly the length of time the Applicant has resided in Australia, his contributions to the community, as well as the strength and nature of the Applicant’s family and social ties in Australia, the Tribunal finds that this consideration weighs marginally in favour of revocation of the Mandatory Visa Cancellation Decision.
CONCLUSION
In summary, the Tribunal finds that Primary Considerations 1 and 2 weigh strongly against revocation of the Mandatory Visa Cancellation Decision. The nature and seriousness of the Applicant’s criminal offending is very serious, particularly as it has largely involved family violence offences against his former partner in a family violence context and against members of the community. The moderate risk of him committing future criminal offences coupled with the nature and seriousness of the harm this would cause to his future victims is such that the protection of the Australian community is best served by the non-revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 3 weighs in favour of revocation of the Mandatory Visa Cancellation Decision. It is in the best interests of the Applicant’s two daughters and three cousins for him to remain in Australia. Primary Consideration 4 weighs against revocation of the Mandatory Visa Cancellation Decision as the expectations of the Australian community are that Applicant’s serious and violent offending should cause him to forfeit the privilege of remaining in Australia, and this is not outweighed by his 15 year residence in Australia and his employment contributions.
In regard to the relevant Other Considerations, only the impediments he will face on return to South Sudan, and his links to the Australian community weigh in favour of revocation of the Mandatory Visa Cancellation Decision.
The Tribunal is not satisfied that there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, and that the Reviewable Decision to refuse to revoke the Mandatory Visa Cancellation Decision must be affirmed.

199. I certify that the preceding 198 (one hundred and ninety-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk.

.
....................................[sgd]................................
Associate
Dated: 6 September 2021

Date(s) of hearing:

5-6 May, 20 May, 4 June 2021

Date final submissions received

20 May 2021

Solicitors for Respondent:

Mr Alexander Zhang, Clayton Utz

ANNEXURE A – HISTORY OF APPLICANT’S CRIMINAL OFFENDING

12/10/2011

Parramatta Children's Court

•

•

Fail to state name and address when directed

In restricted area not make ticket available for inspection

Smoke on train or in roofed area

Found guilty

Dismissed with caution under s 33(1)(a)(i) of the Children (Criminal Proceedings) Act 1987

30/05/2012

Parramatta Children's Court

•

Not pay train fare and hold valid ticket

Found guilty

Dismissed with caution under s 33(1)(a)(i) of the Children (Criminal Proceedings) Act 1987

06/06/2012

Penrith Local
Court

•

Fail to state name and address when directed

Fined $100.00

•

Not pay train fare and hold valid ticket

Fined $100.00

•

Wilfully use offensive language on train or public area

Fined $100.00

•

Resist officer in execution of duty

Fined $300.00 plus court costs

29/08/2012

Queanbeyan Children's Court

•

•

Resist or hinder police officer in execution of duty

Use offensive language in/near public place/school

Found guilty

Dismissed under subparagraph 33(1)(a)(i) of the Children (Criminal Proceedings) Act 1987

21/11/2012

Parramatta Children's Court

•

Offence goods in personal custody suspected being stolen (not motor vehicle)

Fined $500.00

09/01/2013

Ipswich

Magistrates Court

•

Contravene direction or requirement of police officer

Fined $900.00. Drivers licence suspended for 4 months

17/01/2013

Blacktown Local Court

•

Possession of prohibited drug

Fined $200.00 plus court costs Drug to be destroyed

12/04/2013

Richlands

Magistrates Court

•

•

Failure to leave premises under Liquor Act

Failure to appear in accordance with undertaking

Fined $300.00

No conviction recorded

16/05/2013

Holland Park Magistrates Court

•

Contravene direction or requirement of police officer

Fined $250.00

No conviction recorded

24/06/2013

Holland Park Magistrates Court

•

Possess dangerous drugs

Fined $250.00

Good behaviour period 4 months recognisance $250.00

Drug diversion

No conviction recorded

30/07/2013

Brisbane

Magistrates Court

•

•

Possess dangerous drugs

Contravening direction or requirement of police officer

Fined $250.00

23/08/2013

Holland Park Magistrates Court

•

Re breach of order dated 24 June 2013

Recognisance of $250.00
forfeited

29/08/2013

Holland Park Magistrates Court

•

Re breach of order dated 24 June 2013

Re-sentenced 1 month imprisonment suspended for 3 months

22/06/2015

Adelaide

Magistrates Court

•

•

Stating false personal details

Fail to comply with bail agreement

Fined $100.00

06/02/2017

Queanbeyan
Local Court

•

Affray

Warrant issued for arrest under

(Sentencing Procedure) Act 1999 (relating to absent offenders)

subsection 25(2) of the Crimes• Fail to appear in accordance with bail

acknowledgment

•

Use unregistered registrable class A motor vehicle on road

Fined $220

•

Use class A vehicle with illegal number plate

Fined $440

•

Use uninsured motor vehicle

Fined $220

•

Licence expired less than 2 years before - first offence

Fined $660

12/07/2017

ACT Magistrates Court

•

Reckless threat to kill (2 counts)

For each count, sentenced to 8 months imprisonment to be suspended after 6 months subject to good behaviour obligations

•

Common assault

Good behaviour bond - 12 months

•

Possess prohibited substance (cannabis 50 g or less)

Fined $500.00

02/01/2018

Richlands

Magistrates Court

•

Failing to appear in accordance with 2 undertakings

Fined $750.00

22/01/2018

Brisbane

Magistrates Court

•

•

•

•

•

•

Enter premises and commit indictable offence

Possession of dangerous drugs

Nuisance licenced premises or in vicinity of licenced premises

Possession of knife in public place or a school

Commit public nuisance Assault or obstruct police officer

Failed to appear

29/04/2018

ACT Magistrates Court

•

Use of an unregistered/suspended vehicle

Fined $400.00

Disqualified from holding licence for 1 month

•

Drive while right to drive suspended

Fined $600.00

•

Use uninsured vehicle

Fined $600.00

•

Drive motor vehicle with alcohol in blood/breath (reading of .087 - Level 3)

Fined $500.00

Disqualified from holding licence for 1 month

14/05/2018

ACT Magistrates Court

•

Common assault

Sentenced to 2 months imprisonment

•

Unlicensed driver / rider

Fined $300.00

•

Number plate / rego not properly issued or issued for another vehicle (2 counts)

Fined $300.00 (first count) and $400.00 (second count)

•

Crash - not give particulars to other driver

Fined $200.00

•

Unlicensed driver / rider (2 counts)

Fined $200.00 (first count) and $400.00 (second count)

•

Possess plate / document / device calculated to deceive

Fined $300.00

•

Use unregistered / suspended vehicle

Fined $400.00

•

Use uninsured vehicle

Fined $400.00

24/09/2018

ACT Magistrates Court

•

Re breach of his suspended sentence order 12 July 2017

Resentenced to 2 months imprisonment

12/12/2018*

ACT Magistrates Court

•

Assault occasioning ABH

Sentenced to 2 months imprisonment

•

Choke, suffocates, strangles another

Sentenced to 6 months imprisonment

•

Choke person render insensible

Sentenced to 18 months imprisonment, non-parole period of 12 months

•

Common assault

Sentenced to 6 months imprisonment

Date(s) of hearing:	5-6 May, 20 May, 4 June 2021
Date final submissions received	20 May 2021
Solicitors for Respondent:	Mr Alexander Zhang, Clayton Utz

12/10/2011 Parramatta Children's Court	• •	Fail to state name and address when directed In restricted area not make ticket available for inspection Smoke on train or in roofed area	Found guilty Dismissed with caution under s 33(1)(a)(i) of the Children (Criminal Proceedings) Act 1987
30/05/2012 Parramatta Children's Court	•	Not pay train fare and hold valid ticket	Found guilty Dismissed with caution under s 33(1)(a)(i) of the Children (Criminal Proceedings) Act 1987
06/06/2012 Penrith Local Court	•	Fail to state name and address when directed	Fined $100.00
	•	Not pay train fare and hold valid ticket	Fined $100.00
	•	Wilfully use offensive language on train or public area	Fined $100.00
	•	Resist officer in execution of duty	Fined $300.00 plus court costs
29/08/2012 Queanbeyan Children's Court	• •	Resist or hinder police officer in execution of duty Use offensive language in/near public place/school	Found guilty Dismissed under subparagraph 33(1)(a)(i) of the Children (Criminal Proceedings) Act 1987
21/11/2012 Parramatta Children's Court	•	Offence goods in personal custody suspected being stolen (not motor vehicle)	Fined $500.00
09/01/2013 Ipswich Magistrates Court	•	Contravene direction or requirement of police officer	Fined $900.00. Drivers licence suspended for 4 months
17/01/2013 Blacktown Local Court	•	Possession of prohibited drug	Fined $200.00 plus court costs Drug to be destroyed
12/04/2013 Richlands Magistrates Court	• •	Failure to leave premises under Liquor Act Failure to appear in accordance with undertaking	Fined $300.00 No conviction recorded
16/05/2013 Holland Park Magistrates Court	•	Contravene direction or requirement of police officer	Fined $250.00 No conviction recorded
24/06/2013 Holland Park Magistrates Court	•	Possess dangerous drugs	Fined $250.00 Good behaviour period 4 months recognisance $250.00 Drug diversion No conviction recorded
30/07/2013 Brisbane Magistrates Court	• •	Possess dangerous drugs Contravening direction or requirement of police officer	Fined $250.00
23/08/2013 Holland Park Magistrates Court	•	Re breach of order dated 24 June 2013	Recognisance of $250.00 forfeited
29/08/2013 Holland Park Magistrates Court	•	Re breach of order dated 24 June 2013	Re-sentenced 1 month imprisonment suspended for 3 months
22/06/2015 Adelaide Magistrates Court	• •	Stating false personal details Fail to comply with bail agreement	Fined $100.00
06/02/2017 Queanbeyan Local Court	•	Affray	Warrant issued for arrest under (Sentencing Procedure) Act 1999 (relating to absent offenders)
subsection 25(2) of the Crimes• Fail to appear in accordance with bail acknowledgment
•	Use unregistered registrable class A motor vehicle on road	Fined $220
•	Use class A vehicle with illegal number plate	Fined $440
•	Use uninsured motor vehicle	Fined $220
•	Licence expired less than 2 years before - first offence	Fined $660
12/07/2017 ACT Magistrates Court	•	Reckless threat to kill (2 counts)	For each count, sentenced to 8 months imprisonment to be suspended after 6 months subject to good behaviour obligations
•	Common assault	Good behaviour bond - 12 months
•	Possess prohibited substance (cannabis 50 g or less)	Fined $500.00
02/01/2018 Richlands Magistrates Court	•	Failing to appear in accordance with 2 undertakings	Fined $750.00
22/01/2018 Brisbane Magistrates Court	• • • • • •	Enter premises and commit indictable offence Possession of dangerous drugs Nuisance licenced premises or in vicinity of licenced premises Possession of knife in public place or a school Commit public nuisance Assault or obstruct police officer	Failed to appear
29/04/2018 ACT Magistrates Court	•	Use of an unregistered/suspended vehicle	Fined $400.00 Disqualified from holding licence for 1 month
•	Drive while right to drive suspended	Fined $600.00
•	Use uninsured vehicle	Fined $600.00
•	Drive motor vehicle with alcohol in blood/breath (reading of .087 - Level 3)	Fined $500.00 Disqualified from holding licence for 1 month
14/05/2018 ACT Magistrates Court	•	Common assault	Sentenced to 2 months imprisonment
•	Unlicensed driver / rider	Fined $300.00
•	Number plate / rego not properly issued or issued for another vehicle (2 counts)	Fined $300.00 (first count) and $400.00 (second count)
•	Crash - not give particulars to other driver	Fined $200.00
•	Unlicensed driver / rider (2 counts)	Fined $200.00 (first count) and $400.00 (second count)
•	Possess plate / document / device calculated to deceive	Fined $300.00
•	Use unregistered / suspended vehicle	Fined $400.00
•	Use uninsured vehicle	Fined $400.00
24/09/2018 ACT Magistrates Court	•	Re breach of his suspended sentence order 12 July 2017	Resentenced to 2 months imprisonment
12/12/2018* ACT Magistrates Court	•	Assault occasioning ABH	Sentenced to 2 months imprisonment
•	Choke, suffocates, strangles another	Sentenced to 6 months imprisonment
•	Choke person render insensible	Sentenced to 18 months imprisonment, non-parole period of 12 months
•	Common assault	Sentenced to 6 months imprisonment