DPGF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) (Migration) - [2020] AATA 3523

DPGF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) (Migration) [2020] AATA 3523 (17 August 2020)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL              )
  )  No: 2020/3419
GENERAL DIVISION  )
Re: DPGF
Applicant

And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Respondent
DIRECTION
TRIBUNAL:  Senior Member Damien O’Donovan
DATE OF CORRIGENDUM:            6 November 2020
PLACE:           Canberra

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
1.The word (‘not’) be deleted from the last sentence of paragraph 54;
2.The full stop between the second and third sentences of paragraph 65 be changed to a comma.

...................................................................
Senior Member Damien O’Donovan
Division: GENERAL DIVISION
File Number(s): 2020/3419
Re: DPGF
APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd
RESPONDENT

DECISION
Tribunal:Senior Member Damien O’Donovan
Date of Decision: 17 August 2020
Date of Written Reasons: 26 August 2020
Place:Canberra

The decision of the respondent made on 25 May 2020, is affirmed.
………………………………
Senior Member Damien O’Donovan

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 - decision under review
Migration Act 1958 (Cth)
Ali v Minister for Home Affairs [2020] FCAFC 109
Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83
Briginshaw v Briginshaw (1938) 60 CLR 336
BDQ19 v Minister for Immigration and Border Protection [2019] FCA 1630
BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456
CRI026 v Republic of Nauru [2018] HCA 19
DKXY v Minister for Home Affairs [2019] FCA 495
EZC18 v Minister for Home Affairs [2019] FCA 2143
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Minister for Immigration and Border Protection v Le (2016) 244 FCR 56
Minister for Home Affairs v Omar [2019] FCAFC 188
MZAAJ v Minister for Immigration and Border Protection [2015] FCCA 151
NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1
Secretary to the Department of Justice and Regulation v LLG [2018] VSCA 155
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
WKMZ and Minister for Home Affairs [2019] AATA 4381
WKMZ v Minister for Home Affairs [2020] FCA 1127
1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Department of Foreign Affairs, DFAT Country Information Report – South Sudan, 5 October 2016
Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014
International Covenant on Civil and Political Rights and its Second Optional Protocol
Second Reading Speech, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, 25 September 2014
REASONS FOR DECISION
26 August 2020
INTRODUCTION

The applicant was born in Khartoum in what was then the Sudan on 27 December 1994. He was the younger of two brothers. He and his family moved to Egypt when he was aged 2.[1] His family emigrated to Australia in 2006 and at that time the applicant travelled under and remained in Australia on a Refugee and Humanitarian (Class XB) Subclass 202 - Global Special Humanitarian visa.[2] On his arrival in Australia the applicant initially lived with his family. As a result of family violence he was placed in a refuge after reporting the violence to the police. He then moved in with a friend’s family and by 2009 he was formally in the foster care of that family.
[1] G4, folio 187.
[2] G4, folio 163.
He has a long history of anti-social behaviour which is discussed further below.
He was imprisoned in the ACT in 2017 for making a threat to kill two strangers and threatening them with a knife. In 2018 he was dealt with by the courts in relation to a number of offences. The most serious offence of which he was convicted was choking a person and rendering them insensible. The victim of that crime was his domestic partner and the mother of one of his children. He was convicted on 12 December 2018 and sentenced to 18 months in prison with a non-parole period of 12 months.[3]
[3] Exhibit R8, SM3, 298 – 302.
On 4 October 2019 the applicant’s visa was cancelled as required by section 501(3A) of the Migration Act 1958 (Migration Act).[4] Cancellation was required because the applicant did not pass the character test because he had a substantial criminal record and was serving a sentence of imprisonment on a full time basis. The applicant had a substantial criminal record as defined in s501(7)(c) because he had been sentenced to a term of imprisonment of 12 months or more.
[4] G2, folio 7.
On 11 October 2019 the applicant applied to have the cancellation revoked. On 25 May 2020 a delegate of the Minister refused to revoke the cancellation. That is the decision under review.
Given his criminal record the applicant does not pass the character test. The only live question is whether there is another reason why the cancellation decision should be revoked. I have reached the conclusion that there is not. I accept that the result of this decision is that the applicant will in all likelihood be returned to South Sudan. The applicant has never lived in South Sudan. The risks of harm coming to the applicant are very great given the civil unrest in that country. The impediments to the applicant maintaining basic living standards once returned are also very great. Notwithstanding this, I have formed the view that there is a significant risk that the applicant will re-offend and that the likely crimes will be violent crimes against intimate partners which potentially could result in homicide. In order to protect the Australian community from crimes of this kind I have made a decision that the decision to cancel the applicant’s visa should be affirmed.
APPLICATION TO THE TRIBUNAL
The applicant applied for review by the Administrative Appeals Tribunal (Tribunal) on 3 June 2020.
G Documents were prepared by the respondent and filed with the Tribunal on 22 June 2020, which included all of the material before the delegate. Following the filing of the application, the applicant also filed:
(a)Statement of Facts, Issues and Contentions dated 25 July 2020;
(b)Statement of the mother of the applicant’s first child, Ms Chuor dated 10 August 2020;
(c)Statement of the applicant’s brother, Clinton dated 10 August 2020;
(d)Statement of the applicant titled ‘Statement of Fact’ dated 8 July 2020;
(e)Statement of Nyatorok Baboth dated 4 July 2020;
(f)Statement of Jook Jook, undated;
(g)Statement of Angasyo Ini dated 1 July 2020;
(h)Statement of Danyana Pingidi dated 29 June 2020;
(i)Statement of Afeez Babjide dated 21 June 2020;
(j)Statement of Folar Richard dated 9 June 2020; and
(k)Bundle of certificates, variously dated.
The respondent filed a bundle of supplementary G Documents on 31 July 2020.
The respondent also filed a Statement of Facts Issues and Contentions which it amended on 3 August 2020 (ASOFIC). Attached to the ASOFIC was a map entitled ‘Distribution of Ethnic Groups in Southern Sudan marked ‘Annexure A’. The respondent also filed:
(a)The Sudanese Nationality Act 1994;
(b)A document entitled ‘The Nationality Act 2011’ headed ‘Laws of South Sudan’;
(c)A document entitled DFAT Country Information Report South Sudan dated 5 October 2016;
(d)A document prepared by the European Asylum Support Office providing information on the security situation in South Sudan;
(e)An email dated 25 May 2020 notifying the applicant of the outcome of his request to have his visa cancellation revoked; and
(f)An acknowledgement of receipt of relevant documents signed by the applicant and dated 3 June 2020.
The respondent also filed 973 pages of summonsed material. I indicated to the parties that unless I raised the contents of a specific document or it was brought to my attention by a party, it should be assumed that I had not reviewed that material. A number of documents from the summonsed material were raised directly with the applicant during the course of his evidence by both myself and the respondent. These are noted below.
A hearing was conducted on 6, 7 and 13 August 2020. At the hearing the applicant gave evidence. After the second day of the hearing two further statements were filed one from the applicant’s brother the other from the mother of his first child, Ms Chuor. In addition some photos which had been filed in black and white were provided by the respondent in colour.
When the hearing resumed on 13 August 2020 the mother of the applicant’s first child was asked questions by the respondent and by the Tribunal over the telephone.
Both parties filed Statements of Facts, Issues and Contentions and made oral submissions. Supplementary submissions were filed after the hearing by the respondent responding to questions relevant to the prospect of the applicant being removed to South Sudan or placed in indefinite detention.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act which relevantly provides:
(4) The Minister may revoke the original decision if:
(a)the person makes representations [about the revocation] in accordance with the invitation [proffered under subsection (3)]; 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.
The applicant made the representations required by s 501CA(4)(a). As outlined at paragraph ‎3] of this decision, the applicant was sentenced to a term of imprisonment of 18 months with a non-parole period of 12 months in relation to the offence of choking a person and rendering them insensible. Consequently he does not pass the character test.[5] The only substantial issue to be determined on this review is whether the power to revoke the mandatory cancellation should be exercised in the applicant’s favour because there is another reason to do so.
[5] A person will not pass the character test if they have a ‘substantial criminal record’: Migration Act 1958 (Cth) ss 501(6)(a). A substantial criminal record includes if a person has been sentenced to a term of imprisonment of 12 months or more (section 501(7)(c))
In considering that question, I approach the matter consistently with the observations made in Gaspar v Minister for Immigration and Border Protection:[6]
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked...[7]
[6] [2016] FCA 1166; (2016) 153 ALD 337, at [38]
[7] cited with approval by the Full Court in Minister for Home Affairs v Buadromo [2018] FCAFC 151. See also Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
Accordingly, I will consider whether there is another reason why the original decision should be revoked following an assessment and evaluation of relevant factors.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in section 501CA(4) of the Act, the Tribunal is bound, in accordance with s 499(2A), to comply with any lawful directions made under the Act. In this case Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (’the Direction’) applies.
Paragraph 6.2 of the Direction provides general guidance in relation to the exercise of the discretion. It relevantly provides:
The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens…The principles below…reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
Paragraph 6.3 of the Direction relevantly provides:
(1)…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…and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should cancel [non-citizens’] visas if they commit serious crimes in Australia or elsewhere;
(3) A non-citizen who has committed a serious crime…should generally expect to forfeit the privilege of staying in Australia.
(4)…
(5) Australia has a low tolerance of any criminal or other serious conduct by people 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 in relation to a non-citizen who has lived in the Australian community for most of their life or from a very young age.
(6)…
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether the non-citizen’s visa should be cancelled…
The Direction requires that, informed by the principles set out in paragraph ‎21 above, I must take into account the considerations in Part C of the Direction in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[8] Part C commences at paragraph 13. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.[9]
[8] The Direction, paragraph 7(1)(b).
[9] Ibid, paragraph 13(2)(a)-(c).
The Other Considerations which must be taken into account are provided in a non-exhaustive list in paragraph 14 of the Direction. These considerations are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Tribunal notes the significance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[10]
…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 [now Direction 79] does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 [now Direction 79] does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 [now Direction 79] concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[11]
THE APPLICANT'S BACKGROUND - WORK, SOCIAL AND CRIMINAL HISTORY
[10] [2018] FCA 594.
[11] Ibid at [23].
Fact finding principles
The following represent my findings of fact. The evidence on which they are based is as cited.
Direction 79 requires me to form a view about the applicant’s likelihood of re-offending. Consequently, it has been necessary to make a number of findings about the applicant’s criminal past. The magistrates who dealt with the applicant on the most serious charges made a number of findings about the circumstances in which the applicant’s offending occurred. The sentencing transcripts formed part of the evidence before me. The applicant at the hearing gave evidence to the Tribunal about the circumstances of his crimes. That evidence was to some extent inconsistent with the findings of the magistrates.
In reaching my findings on the primary facts I must apply the principle, clarified by the Full Court of the Federal Court in HZCP v Minister for Immigration and Border Protection that ‘…relying on evidence contrary to the essential conviction or sentencing facts would in itself be an error’.[12] The Court made clear that a person who makes representations to revoke the cancellation of a visa cannot advance a factual position that undermines the relevant convictions and sentences as ‘another reason’ why the original decision to cancel should be revoked.[13]
[12] [2019] FCAFC 202 at [68].
[13] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 at [195].
I do note however that the applicant is entitled, subject to some qualifications, to seek different findings from the Tribunal in relation to the criminal convictions which did not form the basis of the decision to cancel his visa. The principles to be applied by the Tribunal when considering evidence of this nature were comprehensively summarised by Justice Bromberg in HZCP v Minister for Immigration and Border Protection.[14] These principles are pithily summarised in the following passage of Secretary to the Department of Justice and Regulation v LLG [2018] VSCA 155 at [42], cited with approval by Justice Bromberg:
The authorities distinguish between cases where a previous conviction is the basis for a decision-maker or reviewing tribunal’s jurisdiction and those where it is not. In the former case, the essential factual basis of the conviction (or sentence, as the case may be) is not able to be reviewed, but the circumstances of the conviction can be reviewed for a purpose other than impugning the conviction itself. In the latter case, the essential facts underlying the convictions are not immune from challenge and the conviction is conclusive only of the fact of the conviction itself, but there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.
[14] [2018] FCA 1803 at [41] - [77].

Accordingly, in relation to all of the offences apart from the ‘choking rendering a person insensible’ conviction, I can form a view about the essential facts which underly the conviction that may depart from the conclusions which the relevant magistrate reached. However, the applicant has a heavy onus to discharge before I would do that.
In relation to the choking rendering a person insensible conviction which led to the applicant being sentenced to 18 months in prison, I have accepted the factual findings on which the conviction and sentence were based as outlined in the sentencing magistrate’s remarks.[15]
[15] G4, folio 34 – 39.
Those remarks were as follows:
Three offences occurred on two different days…on the second day, being 8 August this year, there are (sic) essentially a confrontation or a physical confrontation which essentially was one event involving the defendant and the complainant where he initially held the neck of the complainant and pushed her backwards and they both fell on the floor. At the time of doing so, he punched the complainant a number of times and then subsequent to that he choked the complainant while she was on a couch to such a stage that she lost consciousness. On all occasions, the defendant’s young infant or toddler daughter was present and observed or witnessed the events.
As these remarks are relatively brief (and some relate to offences which do not form the foundation for the administrative decision) I have made additional findings about the circumstances of that crime based upon the police reports in the summonsed material. I have had regard to the applicant’s version of events to the extent that it is not inconsistent with the sentencing remarks that relate to the choking rendering a person insensible offence. Where the applicant’s evidence is not inconsistent with the sentencing magistrate’s remarks but inconsistent with other evidence such as police reports, I have proceeded on the basis that it is open to me to prefer the applicant’s version. However, I have for the most part preferred the evidence available to me from police reports rather than the evidence of the applicant. The applicant in his oral evidence sought to minimise his culpability in relation to some of the crimes which he was convicted of or pleaded guilty to. In particular he denied ever rendering his victim unconscious in relation to the choking charge[16] and denied brandishing a knife while issuing threats to kill in relation to a threat to kill charge[17] which he pleaded guilty to. I prefer the version of events found by the magistrate following a contested criminal trial and the agreed facts concerning the threat to kill charge. In my assessment the processes which led to those findings are inherently more reliable than the applicant’s evidence as a basis for findings. In relation to those matters I was satisfied that the version given to me by the applicant was not accurate. This has had flow on effects in the consideration of his other evidence. Where I have observed similar attempts to minimise culpability on the part of the applicant and there is other evidence available to me (such as police reports) which contradicts the applicant’s evidence, I have for the most part disregarded the applicant’s evidence and based my findings on the other available evidence.
[16] Transcript of Proceedings, 7 August 2020, 102.
[17] Transcript of Proceedings, 6 August 2020, 86.
The most significant finding I have made based on this approach concerns an assault reported by the applicant’s domestic partner on 30 March 2018 which is recorded in police records. At the time, the applicant and his partner gave competing versions of events and in the hearing before me the applicant maintained the version he gave to the police. The applicant claimed that his partner’s injuries were self-inflicted whereas she reported that her injuries, including marks on her neck had been inflicted by the applicant.[18] The doctor who examined the applicant expressed the view to police that the injuries to the neck could not have been self-inflicted. Reading this evidence in light of the subsequent events where, even the applicant admits, he grabbed his partner around the throat in August 2018, I am satisfied that the version given to police by the applicant’s partner should be preferred. I have not made this finding lightly and in doing so I have had full regard to its seriousness and the requirements in Briginshaw v Briginshaw.[19]
[18] Exhibit R8, SM3, 254.
[19] (1938) 60 CLR 336
Applicant’s history
On 27 December 1994, the applicant was born in Khartoum, a city which was and still is the capital of Sudan. His father was a Christian, of Zande ethnicity who was born in Yambio, a city which is now part of South Sudan.[20]
[20] G4, folio 252.
The applicant’s biological mother still lives in Khartoum. The applicant remains in contact with her and provides financial support to her when he can.[21]
[21] Transcript of Proceedings, 6 August 2020, 59.
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. Claims of religious persecution on the basis of the family’s Christianity were determined to be well founded. The applicant’s family stayed in Egypt until they were granted humanitarian visas and flew to Australia. They landed in Australia on 31 October 2006. The family stayed with the applicant’s uncle in Blacktown in Sydney when they first arrived. Later they moved to Marayong after they got settled.[22]
[22] Ibid., 18.
The applicant speaks Zande to his Dad and that is his first language. He speaks Arabic when talking to his brother. He spoke fluent English when giving his evidence in the Tribunal.[23]
[23] Ibid., 16, 61.
After the applicant’s arrival in Australia his life was difficult. His father was a disciplinarian and violent towards him and his brother. In April 2008 the applicant left the family home and moved into state care.[24] 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.
[24] Exhibit R8, SM1, 60-61.
After the applicant moved into state care and at some point around 2009 he ended up in juvenile detention as a result of a violent incident in which he became involved.[25]
[25] Transcript of Proceedings, 6 August 2020, 19.
The first entry on the applicant’s criminal history check is October 2011 when the applicant was 16. I have extracted a table setting out a summary of his criminal history as an annexure to these reasons.
The criminal history began with relatively trivial offences such as riding a train without a ticket but soon included offences which showed a disrespect for lawful authority including resisting arrest.[26]
[26] Exhibit R8, SM1, 7-10.
On 29 July 2012 the applicant became involved in a fight in the city area of Canberra. When police intervened he threw a chair and tables at the police and was only subdued when capsicum spray was used.[27] At the hearing the applicant gave a quite different account of what occurred,[28] but, as noted above, I am satisfied that the applicant generally speaking gives self-serving accounts of events and the police records provide a more accurate picture of what occurred.
[27] Exhibit R8, SM3, 147.
[28] Transcript of Proceedings, 13 August 2020, 171.
At the start of 2013 the applicant moved to Brisbane with his partner. In Brisbane he was before the Courts on multiple occasions. In 2013 he was convicted of drug possession and offences arising from contravening the direction or requirements of a police officer.[29]
[29] Exhibit R8, SM2, 67-68.
On 20 June 2013 his first child, Cecilia, was born in Adelaide where her mother’s family lived. The applicant was either in Adelaide for the birth or moved there shortly after. The applicant lived with his partner Ms Chuor and her family in Adelaide for about a year.[30]
[30] Transcript of Proceedings, 6 August 2020, 22.
In the meantime the applicant was dealt with in Brisbane in relation to his drugs charges. Initially he had no conviction recorded and was ordered (among other things) to enter a drug diversion program.[31] Presumably because he was absent from the jurisdiction, the applicant did not comply with the orders and was re-sentenced in August 2013 to one month imprisonment suspended for 3 months.
[31] Exhibit R8, SM2, 67.
After his time in Adelaide the applicant moved to Sydney with his partner. They lived separately initially and then together.[32]
[32] Transcript of Proceedings, 6 August 2020, 24.
In the time that they lived together the relationship was clearly volatile and involved verbal arguments. The applicant’s partner gave evidence of one incident of the applicant pushing her.[33] There is no evidence of more serious violence in that relationship. When his daughter was about a year old his partner took Cecilia back to Adelaide. He did not provide much financial support initially but support was provided once Cecilia started school.[34]
[33] Transcript of Proceedings, 13 August 2020, 180.
[34] Ibid., 181.
The applicant remained in Sydney without his partner and child. He also spent some time in Brisbane in 2016 where he met and formed a new relationship with a woman called Sabila. Sabila gave birth to the applicant’s second child Ava on 26 November 2016.[35]
[35] G2, folio 9.
On the applicant’s brother’s recommendation, the applicant moved to Canberra to find work. Sabila was at this stage still living in Brisbane. The applicant was successful in finding work in the construction industry for the National Broadband Network and as a labourer.[36]
[36] Transcript of Proceedings, 6 August 2020, 21.
On 5 January 2017 in Canberra the applicant was involved in an incident where he had a minor collision with another car but failed to stop to exchange details with the other driver. When the other driver pursued him in his vehicle and got out to obtain insurance details the applicant ‘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’.[37] The applicant conceded that the incident had occurred but denied that he had come into contact with the legs of the other driver.[38] I do not accept that evidence and prefer the account of the event recorded in the police report.
[37] Exhibit R8, SM3, 219.
[38] Transcript of Proceedings, 7 August 2020, 123.
On 20 January 2017 the applicant got into an altercation with two strangers. While the circumstances which initiated it are to some degree unclear, the applicant admits that he did make a threat to kill the two men and did at one point produce a knife. He also admitted that he kicked one of the men.[39] Shortly after this exchange he was arrested and remanded in custody. When the matter came before the court on 12 July 2017 he pleaded guilty to assault, making threats and possession of cannabis. The statement of facts which provided the basis on which the applicant was sentenced was in the following terms:[40]
…the defendant approached the male victims without any particular reason. He asserted that they were following him. Both victims denied 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 defendant 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.”
[39] Transcript of Proceedings, 6 August 2020, 85.
[40] G2, folio.
The applicant gave a quite different account of what occurred. He testified that one of the two men drove their car near him in a very dangerous manner. When he confronted the driver about it, the situation got heated and aggressive. He did say he was going to kill the man but he did not say any of the other things alleged and although he pulled a knife out of his pocket, he never wielded it in a threatening manner.[41]
[41] Transcript of Proceedings, 6 August 2020, 83-85.
Again, I do not accept that evidence. Witness statements were taken by police and the description given by those witnesses of the events was effectively accepted by the applicant for the purposes of sentencing. I am not satisfied on the evidence before me that what occurred is as recorded in the sentencing remarks.
The applicant was sentenced to 8 months imprisonment, suspended after six months and backdated to 20 January 2017. He was released from custody shortly after.
While he was in custody the applicant completed part of an anger management course.[42]
[42] G2, folio 77.
The next significant incident took place on 30 March 2018. The police were called to premises in the Canberra suburb of Dunlop. The applicant lived there with his partner Sabila and their daughter Ava. Sabila, who had been living with the applicant for about 2 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.[43] The applicant denied (and continues to deny)[44] that this is what occurred and claims that Sabila’s injuries were self-inflicted. I am satisfied that what Sabila reported is the truth. When Sabila was examined by a doctor at Calvary Hospital, the examining doctor confirmed to police that her version of events was consistent with the injuries she sustained and were consistent with strangulation. On 31 March 2018 Sabila and Ava returned to Brisbane.[45] No charges were laid.
[43] Exhibit R8, SM3, 254.
[44] Transcript of Proceedings, 7 August 2020, 150 and following.
[45] Exhibit R8, SM4, 459 - 461
By August 2018 the applicant, Sabila and Ava were living together again. 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.
On 4 August 2018 both the applicant and Sabila were involved in a melee at a friend’s house. The two were not fighting each other but with others at the house. The fighting resulted in Sabila suffering injuries including abrasions to her neck.[46]
[46] Exhibit R8, SM3, 280-281.
A few days later, the applicant committed a series of serious crimes. On 7 August 2018 at 11:00pm at night, the applicant went to a downstairs unit where Ava and Sabila were visiting. The applicant was angry and tried to drag Sabila up the stairs to their unit. When she resisted the applicant pushed Sabila in the throat with both of his hands, pushing her up the stairs. Ava was in her arms at this point. Sabila fell backwards on the stairs. Others intervened and the applicant returned to his unit. Sabila slept in the downstairs unit for the rest of the night.[47]
[47] Ibid., 285-288, 293.
The following evening at 10.45pm, Sabila and Ava were again in the downstairs unit. The applicant yelled out to her from the upstairs balcony of their unit. Sabila and Ava went upstairs. After Sabila put Ava 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. The applicant fell down on top of her while continuing to choke her. The applicant then started to punch the applicant on the right side of her head. Sabila then started to scream. The applicant got off Sabila who stood up and sat down on the couch. The applicant approached a second time and began choking her again.[48]
[48] Ibid., 288-289, 294-295.
One of Sabila’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 Sabila. She ran downstairs and called the police. The applicant choked Sabila until she lost consciousness.[49]
[49] Ibid., 296.
Ava was present and witnessed all of this. When the police arrived the applicant was taken into custody.
On 15 November 2018 the defendant was found guilty of:
(a)assault occasioning actual bodily harm,
(b)choking, suffocating or strangling another,
(c)choking a person and rendering them insensible; and
(d)common assault.[50]
[50] Ibid., 298.
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 charges but the sentencing magistrate determined that it would be artificial to separate the offences and so determined that the sentences should run concurrently.[51]
[51] G2, folio 35-37.
In broad terms the applicant’s behaviour while in prison was satisfactory but not exemplary. He conceded that he was involved in a theft of a computer mouse and engaged in an abusive exchange with a corrections officer.[52] He also undertook courses in prison directed at Alcohol and Drug awareness and received a more general certificate for completing modules on topics including Family Violence and Victim Awareness.[53]
[52] Transcript of Proceedings 7 August 2020, 135.
[53] G2, folio 78-80.
After completing his sentence the applicant was released into immigration detention and is currently residing in Yongah Hill Detention Centre.
The evidence indicates that the applicant remains in contact with his first daughter Cecilia, who lives in Adelaide, and has a good relationship with his first daughter’s mother Ms Chuor. Ms Chuor has however re-partnered and is wholly responsible for the decisions which are made in relation to Cecilia. The applicant has not seen Cecilia since early 2018 when he undertook a trip to Adelaide to see her. The applicant did not provide any financial support initially after Ms Chuor moved back to Adelaide, but he did provide some when Cecilia started school.[54] The applicant did use money earned in prison to obtain access to a mobile phone credit so he could remain in contact with Cecilia.[55]
[54] Transcript of Proceedings, 6 August 2020, 59.
[55] Transcript of Proceedings, 7 August 2020, 149.
The applicant has no contact with Sabila, the mother of his second child. He speaks to Ava over the internet when she goes to his dad’s house.[56]
[56] Transcript of Proceedings, 6 August 2020, 47-48.
In addition to his two daughters, the applicant also has close contact with three cousins who are minors. They are the children of his first cousin Dayana. He speaks to the two older children three times per week and when he lived in Brisbane saw a good deal of them.[57]
[57] Ibid., 49-50.
The applicant knows that his father knew people in Yambio in South Sudan but he doesn’t know who they are.[58] He has indicated that if his humanitarian visa is cancelled he would apply for a protection visa.[59]
[58] Ibid., 17.
[59] Ibid., 65.
The applicant has a large extended family in Australia. He is in contact with some members regularly but not all.[60]
[60] Ibid., 72; G2, folio 63.
The applicant concedes that he was addicted to marijuana[61] but I am satisfied that he has not used it for a number of years.
[61] Transcript of Proceedings, 6 August 2020, 77.
I am satisfied that the applicant has kept in almost weekly contact with his daughter Cecilia. Contact with Ava appears to be less regular. Ava now lives in Brisbane in the care of her grandmother.[62] The applicant has at least one employer, a brick layer, with whom he had a good relationship and who he says may give him work in the future.[63]
[62] Transcript of Proceedings, 7 August 2020, 139
[63] Transcript of Proceedings, 13 August 2020, 192.
I am also satisfied that the applicant is at present a citizen of the nation of South Sudan and not a citizen of any other country. When he was born, the applicant was a citizen of Sudan. However, section 8 of the Nationality Act 2011 (South Sudan) provides:
A person born before or after this Act has entered into force shall be considered a South Sudanese National by birth if such person meets any of the following requirements –
(a) any Parents, grandparents or great-grandparents of such a person, on the male or female line, were born in South Sudan; or…

Subsection 10(2) of the Sudanese Nationality Act 1994 (Sudan) provides:
(2) Sudanese nationality shall automatically be revoked if the person has acquired, de jure or de facto, the nationality of South Sudan.
The respondent has filed evidence which confirms that the applicant’s father and paternal grandparents were born in Yambio, which is now the capital city of Western Equatoria state in South Sudan.[64] By the operation of Sudanese and South Sudanese citizenship laws, the applicant is currently a citizen of South Sudan and ceased to be a citizen of Sudan in 2011.
[64] G4, folio 211.
PRIMARY CONSIDERATIONS
As noted above, in determining whether there is another reason why the original decision should be revoked I am obliged to take into account the considerations outlined in Part C of the Direction. Those considerations are divided into Primary Considerations and Other Considerations. The Primary Considerations are:
(a)Protection of the Australian community (which includes other considerations within it);
(b)Best interests of minor children in Australia affected by the decision; and
(c)Expectations of the Australian community.
The other considerations are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments the applicant will face to establishing themselves and maintaining basic living standards if removed.
This is a non-exhaustive list of relevant considerations.
Primary Consideration A: The protection of the Australian Community
Paragraph 13.1 (1) notes that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Paragraph 13.1(2) of the Direction further provides that decision-makers should give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
In relation to this criterion the applicant submitted that:
(a)Although he had committed crimes, his time in custody had given him time to think about his actions and he was now confident that he would not commit crimes again;
(b)The idea of being in jail scares him;
(c)Being away from his kids really hurts him and if he gets another chance, he will do the right thing;
(d)The programs he undertook when he was in custody really helped him to better himself and in the future he will get all the help he can. The programs included the Solaris Therapeutic Community, Alcohol Drug Awareness Prevention Training (ADAPT) and he is on a list to do a family violence course;[65]
(e)He never got any warning that his offending risked the cancellation of his visa. The first he knew of the possibility was when he was up for parole. He submits that if he had been warned previously he would have taken it very seriously and changed his ways;
(f)In relation to the threat to kill offence he wasn’t ‘going to take it in to action’ and did not realise how serious the offence was at the time he committed it – it was just said out of anger when he had just lost his house; and
(g)The later offences were serious but he has remorse for the victim and wishes he could take back time so it didn’t take place.
[65] G2, folio 64.
In relation to this criterion, the respondent submitted:
(a)A number of the applicant’s crimes resulted in prison sentences being imposed. As noted in the Tribunal decision PNLB v Minister for Immigration and Border Protection [2018] AATA 162, a prison sentence is the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offences involved;
(b)The applicant has been sentenced to a total of 50 months imprisonment (although much of it has been served concurrently) for the crimes he has committed;
(c)The applicant’s offences include 9 violent offences which according to the Direction should be viewed very seriously;
(d)The applicant’s offences include violence perpetrated towards a woman which, pursuant to the Direction, must be viewed very seriously (paragraph 13.1.1(1)(b));
(e)Some of the applicant’s offences occurred whilst his daughter was present which has real potential to harm or cause trauma to the child;
(f)The applicant 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;
(g)The applicant’s criminal history is extensive and he is a frequent offender over a sustained period. The applicant’s history involves a rapid escalation in the seriousness of his offences;
(h)The applicant has been found guilty of 17 traffic offences relating to driving whilst unlicensed or licence suspended, driving under the influence of alcohol, driving unregistered vehicles, driving uninsured vehicles and number plate offences. The cumulative effect of these has placed the community at serious risk of harm;
(i)The respondent notes that even though the applicant did not receive a warning about the possible cancellation of his visa, the absence of a warning should not be considered to be in his favour (Direction 13.1.1(1)(h));
(j)In light of the above the applicant’s offending should be viewed very seriously and weighs heavily against the applicant.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Amongst those factors are:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to paragraph (b) above, the sentence imposed by the courts for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)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 immigration status…
...
I am satisfied that the applicant’s conduct to date has involved very serious offending which the Australian community should be protected from.
The offences which the applicant committed against the mother of his second child were reprehensible. The crimes involved violence against the applicant’s domestic partner. As the sentencing magistrate commented ‘Partners, parents and family members are entitled to feel safe when with their family members. They are also entitled to feel safe at home’.[66] The applicant violated these principles.
[66] G2, folio 37.
Further aggravating factors include that the crimes were committed against a woman and in front of the applicant’s child. The crime involved choking her until she was rendered insensible. As the sentencing magistrate noted, death was ‘not very far away’.[67] The seriousness of strangulation offences in a domestic violence context has been studied. It is a significant predictor of subsequent homicide of victims of domestic violence. One study shows that the odds of becoming a homicide victim increased by 800 percent for women who had been strangled by their partner.[68] The crime is not just serious in and of itself but is a marker of a significant risk of more serious criminality.
[67] Ibid.
[68] Exhibit T1, Strack, G and Gwinn, C,‘On the Edge of Homicide: Strangulation as a Prelude’ (2011) 26 (No 3) Criminal Justice.
The sentence of 18 months in prison indicated strongly the seriousness of the offence.
It is however not only intimate partners who have been the victims of the applicant’s offending and serious conduct. He has made threats to kill strangers, including wielding a knife, and behaved aggressively towards police to the point where he had to be subdued with capsicum spray. This conduct is very serious and the cumulative effect of this violent conduct raises significant concerns for community safety if the applicant were to be released back into the community.
The applicant’s other offending, which shows a contempt for lawful authority and a general disregard for the safety of others when using a motor vehicle is also a cause of significant concern, but it is the incidents of violence against Ava’s mother, the threat to kill and the violent encounter with police in Canberra which place the conduct in the very serious category and justify very significant concern about the safety of the Australian community.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) of the Direction provides that in considering the risk to the Australian community, a decision-maker should have regard to the two following factors on a cumulative basis:
(i)Paragraph 13.1.2(1)(a) requires the Tribunal to consider 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)Paragraph 13.1.2(1)(b) requires the Tribunal to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Any assessment of the nature of the harm to individuals or the Australian community were the applicant to engage in further criminal or other serious conduct, can be properly informed by the nature of his conduct revealed in his criminal history and police reports to date. Given the applicant’s history, it is likely that if the applicant engaged in criminal conduct or serious conduct in the future, it would take the form of violent crime involving either members of the public, law enforcement or his intimate partners. I form that view based on the applicant’s previous criminal offending and serious conduct.
I am satisfied that any re-offending by the applicant would result in significant harm to the Australian community.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
Under the Direction I must also have regard to the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending.
The applicant in his submissions repeatedly emphasised that he had changed, had learned tools, undertaken programs and had bettered himself and that if he was given one more chance he would change his ways.[69] His brother Clinton described his brother as a changed man[70] and other referees emphasised how his character had changed and how determined he was to keep out of trouble.[71]
[69] Exhibits A1, A2, A3.
[70] Exhibit A3.
[71] Exhibits A4, A5, A6, A7.
The respondent however submits that there is a likelihood that the applicant will reoffend. The respondent notes that the applicant has been sentenced on multiple occasions with many different sentencing options employed and yet the applicant continues to re-offend. Despite the increasing severity of the sentences imposed the trend in the applicant’s offending has been that his crimes have increased in seriousness. I accept that submission.
Despite the applicant’s submission that he has learned his lesson from his time in jail and that he is one hundred percent confident that he will not re-offend, I do not share his optimism.
The trend in his offending is in the opposite direction. Despite serving a sentence in prison of 6 months in 2017, the applicant’s most serious offending occurred in 2018. While in prison in 2017 the applicant undertook an anger management course.[72] That course failed to prevent the further anger driven offending that landed the applicant back in prison in 2018.
[72] G2, folio 77; Exhibit A10, 7.
While there are some aspects of his life which are showing some signs of improvement such as his ability to obtain regular work when he is not in prison,[73] the trend in his offending is increasing in seriousness.
[73] G2, folio 65.
His behaviour in prison was generally good, but not without incident. It was certainly not so good that I could be satisfied that upon release the applicant would not be at significant risk of re-offending.
I also have concerns about the applicant’s level of insight into his own offending. The evidence which he gave minimised his own culpability in relation to his offending and other serious conduct. In particular:
(a)He did not accept that he had thrown furniture at police in 2012;
(b)he did not accept that he had used his knife to threaten his victims in 2017;[74]
(c)he insisted that the injuries his partner suffered in March 2018 were self-inflicted;[75] and
(d)he never accepted that he had rendered his partner unconscious during the August 2018 offences.[76]
[74] Transcript of Proceedings, 7 August 2020, 110.
[75] Ibid, 151.
[76] Ibid, 101.
This unwillingness to accept the full extent of his own culpability makes it difficult for me to accept that the applicant is a reformed man who is unlikely to commit further crimes in the future.
Conclusion: Primary Consideration A
The applicant’s offending is very serious and there is a very significant risk that he will engage in criminal conduct in the future. If the applicant engages in similar criminal conduct in the future, it will cause serious harm to Australians and the Australian community. There is a good chance that any crimes committed will be violent and perpetrated against either his intimate partner or public officials like police. Protection of the Australian community strongly favours a non-revocation decision.
PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a minor child who may be affected by the cancellation of the applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 13.2(4) of the Direction provides a list of factors to be considered in determining the best interests of the abovementioned children. Those factors comprise:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
There are five children whose interests the Tribunal must have regard to in the applicant’s case, namely the applicant’s two daughters and the applicant’s three cousins.
The applicant’s daughter Cecilia
The applicant’s submissions in relation to his daughter are as follows:[77]
(a)I have always been there for my first born;
(b)I provide for her;
(c)I love her with my heart and soul;
(d)It would hurt her badly not having her father around and not being able to see me at all; and
(e)I won’t be able to be a good role model in her life if my visa remains cancelled.
[77] Transcript of Proceedings, 13 August 2020, 189; Exhibit A2; Exhibit A3.
In relation to Cecilia, the respondent submits that:[78]
(a)Cecilia remains in the care of her mother in Adelaide who has assumed full responsibility;
(b)The applicant broke up with her mother in 2014 and has not lived in the same city as her since;
(c)Cecilia’s mother has since re-partnered;
(d)The applicant plays no role in supervising Cecilia and only her mother makes final decisions in relation to her;
(e)If the applicant re-offends it will have a negative impact on his children; and
(f)In these circumstances removal of the applicant will not have a significant negative impact.
[78] Transcript of Proceedings, 13 August 2020, 202-203.
From the evidence given to me it is clear that the applicant has a substantial ongoing relationship with Cecilia. He takes steps to see her when he can and, within his limited means takes steps to support her. He has a workable relationship with Cecilia’s mother and Cecilia’s mother is happy to arrange contact between Cecilia and her father.[79]
[79] Ibid, 177.
However, the applicant has not lived in the same city as Cecilia since his relationship with her mother broke down in 2014. Since then, his face to face contact with Cecilia has been limited. He has provided some financial support but the arrangements fall well short of what could reasonably be described as co-parenting. The applicant’s incarceration since August 2018 has meant that he has had no face to face contact with Cecilia in the last two years.
There is no direct evidence before me about the extent to which the applicant might be able to continue contact with Cecilia if he is removed from Australia to South Sudan, but there was evidence that indicated that the applicant was able to maintain contact with his biological mother in Sudan.[80] I am prepared to infer that the applicant will be able to maintain some contact with Cecilia using the internet if he is removed from Australia, but it will be significantly less than if he remained in Australia and was released into the community.
[80] Transcript of Proceedings, 13 August 2020, 172.

In relation to the criteria in paragraph 13.2(4) of the Direction:
(a)The relationship between the applicant and Cecilia is a close and meaningful father/daughter relationship notwithstanding the period of separation resulting from the applicant’s custodial sentence. However, the applicant has not been involved with Cecilia’s daily life since she moved to Adelaide;
(b)The applicant might play a positive parental role in Cecilia’s life through the provision of financial support and occasional visits if he remains in Australia. However, it is unlikely that they will ever live in the same city or have the close and regular interactions which are necessary for a close parental relationship to develop. There is also the risk that the applicant will engage in further criminal behaviour which could have a negative impact on Cecilia.
(c)There is no evidence that the applicant’s past criminal conduct has impacted negatively on Cecilia. There is potential that future criminality could impact negatively on Cecilia, but at present she appears to have been insulated from the applicant’s conduct as a consequence of not living in the same city.
(d)If the applicant were removed from Australia permanently, this would remove all possibility of physical contact. However, given that personal contact has been a limited feature of the relationship to date that impact is significantly less than it might otherwise be. The evidence suggests that maintaining a relationship using electronic means will be possible if the applicant is removed to South Sudan.
(e)Cecilia’s mother plays the parental role.
(f)No evidence was provided as to Cecilia’s views about the impact on her if her father were removed from Australia.
(g)There is no evidence of abuse or neglect of Cecilia.
(h)There is no evidence that Cecilia has suffered trauma as a result of the applicant’s conduct.
In light of these matters I am satisfied that revocation of the cancellation would be in Cecilia’s best interests. However this weighs much less heavily in the applicant’s favour than it would if he played a more important role in Cecilia’s life.
The applicant’s daughter Ava
The applicant’s submissions in relation to his daughter are as follows:[81]
(a)I am always there in my second born’s life;
(b)I provide support for her and love her with all my heart;
(c)For me not to be in her life would hurt all of us;
(d)I know how it feels to grow up without a mum and dad and I want to be in her life.
[81] Transcript of Proceedings, 13 August 2020, 189; Exhibit A2; Exhibit A3.
In relation to Ava, the respondent submits that:[82]
(a)There is no evidence to suggest that the applicant is in any close relationship with his younger daughter who is currently aged 3 years of age;
(b)The applicant has been in custody for more than 2 years since she was born and so has been absent for most of Ava’s life;
(c)Ava’s mother was the victim of the applicant’s most serious crimes and moved interstate afterwards.
(d)Contact is maintained through the applicant’s dad when Ava comes to visit;
(e)There is an apprehended violence order still in place which will affect contact;
(f)The choking offence would have had a traumatic effect on Ava who saw the conduct.
[82] Transcript of Proceedings, 13 August 2020, 203.
In relation to Ava I am satisfied that the applicant does maintain a relationship which is facilitated by his father.
However, the applicant was separated from Ava before she was two years old and has only seen her over the internet since. The applicant has not spoken to Ava’s mother since being incarcerated.[83] Whether the applicant could resume any kind of parental relationship if he was released into the community is unclear. If Ava is in the care of her mother, then any role may be circumscribed by any apprehended violence order in place at the time. If, however, Ava continues in the care of her grandmother, then a larger role might be possible.
[83] Ibid; Transcript of Proceedings, 6 August 2020, 47.
In relation to the criteria in paragraph 13.2(4) of the Direction I find:
(a)The relationship between the applicant and Ava is not close. This is a consequence of his incarceration, the applicant’s poor relationship with Ava’s mother and Ava’s young age when the applicant went into prison;
(b)It is difficult to see the applicant playing a positive parental role in Ava’s life given the dysfunctional and violent relationship he has with Ava’s mother. I am satisfied that the applicant would want to spend time with Ava if he was released into the community and wants to support her financially, but given his violence towards her mother and that it is unlikely he will live in the same city as Ava, I am not satisfied that he is likely to play a positive parental role in the future.
(c)I am satisfied that the applicant’s past offending has had a negative impact on Ava. His incarceration in 2017 meant that Ava lost access to her father at a very young age. His violence towards her mother during 2018 is very likely to have had a negative effect. I have no confidence that in the future the applicant is going to be able to moderate his anger towards Ava’s mother and so there is a real prospect of further negative impacts on Ava if the applicant is released into the community.
(d)If the applicant were removed from Australia permanently, this would remove all possibility of physical contact. However, given that personal contact has been a limited feature of the relationship to date, that impact is significantly less than it might otherwise be. The evidence suggests that maintaining a relationship using electronic means will be possible if the applicant is removed to South Sudan.
(e)It would appear that Ava’s mother or grandmother plays a parental role for Ava. The evidence on this question is limited. It is however clear that for the last two years the applicant has been prevented by incarceration from playing any kind of parental role.
(f)No evidence was provided as to Ava’s views about the impact on her if her father were removed from Australia.
(g)There is no evidence of abuse or neglect of Ava save for the violence towards her mother which is discussed in the next paragraph.
(h)It is quite possible that Ava suffered emotional trauma when the applicant assaulted her mother in front of her on three occasions. The police records indicate that after the assault in March 2018 ‘Ava appeared quite distressed when police arrived’[84]. The evidence shows Ava was present during the two assaults in August 2018. I am satisfied both incidents would have been traumatic for Ava to watch.
[84] Exhibit R8, SM4, 457.
That being the case I am satisfied that non-revocation would be in Ava’s best interests. The applicant’s relationship with Ava’s mother has been toxic in the past and there is a significant risk that if Ava’s parents were to become involved in a co-parenting arrangement in the future that the relationship would be characterised by the aggression and violence that characterised the relationship in the past. It is not in Ava’s best interests for her to be exposed to that.
The applicant’s cousins
The other minor children who are potentially affected by the removal of the applicant from Australia are the children of his cousin Dayana.
Those children live in Brisbane. I will deal with the two older cousins together as the evidence relating to them suggests that their interests do not differ.[85]
[85] See paragraph 11.2(3) of the Direction.
The applicant’s cousin has three children – Yasman aged 12, Nelson aged 8 and a newborn named Jacob.
The applicant clearly has a close relationship with the children’s mother, and he speaks to her and her older children regularly. Before he was incarcerated he would spend time with the older children whenever he was in Brisbane and would babysit at that time. The relationships are important to the applicant and I am prepared to accept are important to the older children.
It is however the case that due to the applicant’s incarceration and the fact that he has not lived in Brisbane for many years, the relationship has mostly been conducted long distance over the internet. I am satisfied that if the applicant is removed from Australia he will be able to continue the relationship using the internet to some degree.
While I accept that in a very broad sense it could be beneficial for the applicant’s cousins to have him physically present in Australia, a decision not to revoke the cancellation is unlikely to impact the older cousins in a significant way.
In relation to the newly born cousin. I am unable to discern any impact on the interests of that child arising from the removal of the applicant as there is no evidence of any kind of meaningful relationship with the applicant. Accordingly it is unnecessary to make a determination about whether refusal is or is not in the best interests of Jacob as he is not ‘affected by the decision’.[86]
[86] See the heading to paragraph 11.2 of the Direction.
I have considered each of the criteria in paragraph 13.2(4) of the Direction in relation to the older cousins.
I am satisfied that it would not be in the best interests of the older cousins for the applicant’s visa cancellation to be affirmed.
Conclusion: Primary Consideration B
If the applicant’s visa cancellation is not revoked, there will be an adverse impact on Cecilia, there is unlikely to be a negative impact on Ava and there is potential for impact to be positive. There will be a very small adverse impact on the older two cousins.
In these circumstances, Primary Consideration B is neutral. While there is some discernible benefit to Cecilia in the applicant staying in Australia, further engagement in Ava’s life by the applicant may be harmful to her. The interests of the applicant’s cousins do not significantly alter this analysis.
Primary Consideration C: Expectations of the Australian Community
The final primary consideration is the expectations of the Australian community.
In approaching this consideration, the Tribunal notes the following matters which are relevant to applying this consideration to the applicant:
(a)The expectations of the Australian Community are not matters for evidence. They are expressed normatively and the expectations are what the Government says they are, even though in actual fact, if they were ascertainable, community expectations might be quite different.[87]
(b)Decision makers are bound to have due regard to the Government’s view regarding community values, standards and expectations as set out in the Direction.[88]
(c)The expectations of the Australian community are conclusively expressed (for present purposes) in paragraph 13.3 of the Direction.[89]
(d)There are a spectrum of ways of reading paragraph 13.3 of the Direction and the precise way of expressing the expectation of the Australian community as discernible from paragraph 13.3 is one on which reasonable minds may differ. In its strongest form, the paragraph can be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should not have their visa cancellations revoked.[90] A more flexible expression of that principle is ‘[I]f you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive’.[91]
[87] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [91] per Stewart J (FYBR).
[88] See, for example the Direction, paragraph 6.2 and 6.3; DKXY v Minister for Home Affairs [2019] FCA 495 at [31].
[89] FYBR at [68] per Charlesworth J and at [94] per Stewart J (although noting that those judgments deal with clause 11.3 of the Direction which applies to visa applicants. Paragraph 13.3 is not materially different except that it applies to revocation requests.)
[90] To adapt the words of Justice Charlesworth in FYBR at [75] to present circumstances.
[91] To use the words of Justice Stewart in FYBR at [101].
Whichever expression of community expectations is accepted, in the present circumstances, it weighs heavily against revocation of the cancellation. The applicant has breached the community expectation that non-citizens will obey the law while in Australia. The seriousness of the offences – especially the choking and rendering a person insensible offence – is such that the Australian community would expect that the applicant should not hold a visa. While this is not decisive in determining whether the applicant’s visa cancellation should be revoked, it weighs heavily against the applicant.
OTHER CONSIDERATIONS
It is necessary to consider the Other Considerations listed at paragraph 14(1) of the Direction. I have considered each of the five stipulated subparagraphs (a), (b), (c), (d) and (e). I will address each in turn. In addition I have considered the general risk of harm that the applicant faces upon his return to South Sudan.
(a) International non-refoulement obligations
In broad terms a non-refoulement obligation is an obligation, which arises by virtue of Australia entering into a number of conventions pursuant to which Australia agrees not to forcibly return, deport or expel certain persons to a place where they will be at risk of certain types of harm identified in those conventions.
The scope of the obligation is determined by reference to the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).[92]
[92] And perhaps the Convention of the Rights of the Child – see BHL v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 929 at 224
In cases where it is open to the applicant to apply for a protection visa, the Direction encourages the decision maker not to make a determination of Australia’s non-refoulement obligations.[93] The Full Federal Court has confirmed that where it is open to an applicant to apply for a protection visa, assessing Australia’s non-refoulement obligations is not a mandatory relevant consideration.[94]
[93] Direction 14.1(4).
[94] Minister for Immigration and Border Protection v Le (2016) 244 FCR 56
That however is not the end of the story. There are circumstances where the applicant has made submissions on the non-refoulement question or a related issue, where as a practical matter it will be difficult to meet the requirements for lawful decision making, and in particular the important requirement of ‘confronting what is to be done to people’[95] without addressing the non-refoulement question. There are at least two ways the issue can arise.
[95] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [3], cited with approval in Minister for Home Affairs v Omar [2019] FCAFC 188 at [586]
First, if an applicant asserts that a decision not to revoke would result in the applicant being returned to his country of citizenship in breach of Australia’s international law obligations, that would be a matter that needs to be addressed by the Tribunal.[96]
[96] For an example of a case where the submission was put in this way see WKMZ v Minister for Home Affairs [2020] FCA 1127 at [12].
Second, if an applicant asserts that he will suffer harm if he is sent to his country of citizenship, it is necessary to determine how likely it is that the applicant will be sent to that country in order to properly weight consideration of that harm.[97] If Australia owes non-refoulement obligations and they are likely to be honoured, that materially diminishes the prospect of the applicant being returned to his country of citizenship and suffering any identified harm. If Australia owes non-refoulement obligations and they are unlikely to be honoured, that materially increases the likelihood of return to a place where the applicant will suffer harm. Assessing which scenario is likely is therefore a necessary part of confronting the ‘consequences’ of non-revocation as urged by the Full Court in Minister for Home Affairs v Omar.[98]
[97] and other considerations like extent of impediments to establishing and maintaining basic living standards
[98] Minister for Home Affairs v Omar [2019] FCAFC 188 at [37]
While speculation about what decisions might or might not be made about the applicant in the future must be avoided,[99] if there is a proper basis for forming a view about what his ultimate fate is likely to be,[100] then in a case like the present one, an assessment should be made of the likelihood of the applicant being sent to his country of citizenship.
[99] NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 at [19].
[100] See for example BDQ19 v Minister for Immigration and Border Protection [2019] FCA 1630 at [74] where Justice Kerr considered it appropriate to accept as a matter of fact that the subject of a visa cancellation would not be refouled having regard to the legal framework
In this case, if Australia does not owe the applicant non-refoulement obligations, then non-revocation is likely to ultimately result in the applicant being returned to his country of citizenship. As that country is South Sudan, then the extreme difficulties that the applicant will face on return loom large.
Without some sense of what is likely to happen to the applicant if the visa cancellation is maintained, it is not possible to give meaningful consideration to the question of whether there are potentially devastating consequences[101] for the applicant if an unfavourable decision is made. Accordingly, even in the absence of clear submissions by the applicant on the question of non-refoulement, in this case, the issue cannot be ignored.
Is there a risk that Australia will breach its international law obligations?
[101] See Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [3].
The applicant has not put in clear terms any submission that suggests that there is a risk that he will be returned to South Sudan in breach of Australia’s international non-refoulement obligations. His submissions about his possible return to South Sudan in my assessment have focussed on the fear that he has about the personal consequences for him if he were to be returned to South Sudan. The applicant did however give an ambiguous answer when I asked him about the non-refoulement issue[102] so out of an abundance of caution I will address specifically the question of whether there is a risk that the applicant will be returned to South Sudan in breach of Australia’s non-refoulement obligations. I note that this risk is assessed in a context where, if the cancellation of the applicant’s humanitarian visa stands, it is open to him, and likely that he will,[103] apply for a protection visa. However due to character concerns it is highly unlikely that he will be granted one.
[102] Transcript of Proceedings, 13 August 2020, 190-191.
[103] Transcript of Proceedings, 6 August 2020, 65.
In my assessment, there is a risk that the applicant could be returned to South Sudan in breach of Australia’s non-refoulement obligations but that risk is extremely low.
The risk and its size can only be assessed by considering the approach that Australia has taken to meeting its international law obligations in this area. The following is a brief outline of the framework:
(a)The tests for Protection visas incorporated into the Act do not fully reflect Australia’s international non-refoulement obligations.[104] Consequently, it is quite possible that a person will not be granted a protection visa notwithstanding that Australia owes them a non-refoulement obligation. In the applicant’s case, given the character requirements, it is unlikely that he will be granted a protection visa;[105]
[104] See for example Ali v Minister for Home Affairs [2020] FCAFC 109 at [114]-[115] and notwithstanding the Direction at paragraph 14.1(1).
[105] Even the respondent accepts that there is a material prospect that the applicant could be refused a protection visa on character grounds, see Respondent’s Supplementary Submissions filed 13 August 2020, 1-2.
(b)A person denied a protection visa will then become (or in this case remain) an unlawful non-citizen. Officers of the Department will then become subject to a statutory obligation to detain and a statutory obligation to remove the applicant from Australia as soon as is reasonably practicable and in exercising that power it is irrelevant that Australia owes non-refoulement obligations to the person;[106]
[106] Sections 197C and198 of the Act.
(c)Consequently, if one only reads the statutory provisions concerning protection visas and the duties of officers to return, one could readily reach the conclusion that a breach of Australia’s non-refoulement obligations is likely.
(d)However, when the amendments to the Act which introduced this regime of compulsory removal without regard to Australia’s non-refoulement obligation were presented to Parliament, the Government of the day gave assurances that Australia still intended to meet its non-refoulement obligations and would do so either through the Protection visa application process or the use of the Minister’s personal powers in the Act including those under sections 46A, 195A or 417 of the Act.[107]
[107] Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 at [1142].
(e)This assurance to the Parliament included the following in the second reading speech:
Asylum seekers will not be removed in breach of any non-refoulement obligations identified in any earlier processes. The government is not seeking to avoid these obligations and will not avoid these obligations, rather it seeks to be able to effect removals in a timely manner once the assessment of the applicant's protection claims have been concluded.[108]
(f)In response[109] to the Federal Court decision in BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 and perhaps to assist in the identification of non-refoulement obligations during the Protection visa process, Direction 75 was made by the Minister under section 499 of the Act in 2017. That direction regulates the order in which protection visa criteria are considered so that persons who have good refugee or complementary protection claims but are refused a Protection visa on, for example, character grounds, are identified for the purpose of examining more closely whether non-refoulement obligations are owed. The assessment principles identified in Direction 75 include:
Refusal of a Protection visa because of the specific ineligibility criteria governing such a visa does not extinguish Australia’s non-refoulement obligations in all instances. While Australia may refuse to grant a protection visa to a person who is a danger to Australia’s security or to the community, this does not necessarily mean that a person should be removed from Australia
The Direction goes on to note that if the Protection visa is refused on grounds relating to the person being a danger to the Australian community or security ‘the applicant will still engage Australia’s non-refoulement obligations while a real risk of [them suffering significant harm as defined in the Migration Act] exists’.
(g)Thus Direction 75 promotes (albeit imperfectly[110]) identification of persons who have been denied a Protection visa but to whom non-refoulement obligations might none-the-less be owed, and re-iterates Australia’s commitment to non-refoulement;
(h)At the point in the administrative process where a person has been identified as at risk of significant harm but is refused a Protection visa on (for example) character grounds, something of a legal dilemma arises for the Department. The person is an unlawful non-citizen who is detained and must be removed as soon as is practicable regardless of Australia’s non-refoulement obligations, yet the relevant Minister (or his predecessors) have repeatedly given public assurances including to Parliament, that Australia will not breach those obligations.
(i)The way it is envisaged that the issue will be resolved is that the Minister considers whether a visa should be granted using one of the Minister’s personal discretions under sections 46A, 195A or 417.[111] It is lawful to detain the person while that discretion is being considered. The Federal Court considered this discretion in BDQ19 v Minister for Home Affairs (2019) 167 ALD 38 at [105] where Justice Kerr noted:
If…an illegal non-citizen’s visa remains revoked but he or she is owed non-refoulement obligations by Australia, the decision maker need not speculate as to how those obligations will be met. It is uncontentious that there are available legal means as can secure that outcome.
(j)Consequently, there is in place a legal framework, albeit an unconventional one, capable of ensuring that Australia does not breach its non-refoulement obligations;
(k)However, what I have described above does not on any analysis appear to be foolproof. I am persuaded by the reasoning of Tribunal Member Eteuati in WKMZ and Minister for Home Affairs [2019] AATA 4381[112] at [266] and following, that there must be a chance that Australia will breach a non-refoulement obligation. Particularly in a case like this where (unlike BDQ19) no advance assessment of the non-refoulement obligation has been made. To begin with there must be a small administrative risk that the issue of Australia breaching a non-refoulement obligation will not be brought to the Minister’s attention. Further, the discretions conferred by Parliament on the Minister are not controlled by statements about their exercise made by former Ministers, or assurances included in directions concerning the exercise of other statutory powers.[113] Accordingly there must be some decisional freedom in the Ministerial discretions which create potential for Australia to breach its non-refoulement obligations. As a practical matter though, this risk in light of the assurances given to Parliament and repeated in statutory directions, is in my assessment small.
[108] Second reading speech of Minister for Immigration and Border Protection in relation to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, 25 September 2014.
[109] Logan J in DOB18 v Minister for Home Affairs [2019] FCAFC 63 at [55]-[59], referred to in AXT19 v Minister for Home Affairs [2019] FCA 1423, described it as a’ riposte’.
[110] BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456; Ali v Minister for Immigration and Border Protection [2018] FCA 650; DOB18 v Minister for Home Affairs [2019] FCAFC 63.
[111] Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 at [1142].
[112] Which was the subject of consideration by the Federal Court in WKMZ v Minister for Home Affairs [2020] FCA 1127 and survived challenge.
[113] In particular issues may arise concerning the inflexible application of policy if a Minister were to guarantee that a discretion would only be exercised one way in certain circumstances NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38 at [153];.

The respondent in its submissions put as good a complexion on this consideration as could be put. It noted that:
(a)The applicant remains relatively young at 26 years of age;
(b)The applicant states that he does not suffer from diagnosed medical or psychological conditions (G2, folio 66); and
(c)English is one of the official languages of South Sudan.
(d)The applicant speaks Zande, Arabic and English;
(e)He has transferable skills;
(f)The applicant’s father may have acquaintances in South Sudan; and
(g)The respondent submitted that the applicant’s mother and half-sisters are in South Sudan – I am however satisfied that is based on a misunderstanding of what the applicant said. His mother and half-sisters are in Khartoum in Sudan.
Consideration
All that the respondent submits (with the exception of (g)) I accept. Accordingly, the applicant’s age and health and knowledge of languages suggest that he may face few impediments in establishing and maintaining basic living standards. However, the country information on South Sudan reveals a very grim picture for the applicant if he is returned to South Sudan. He faces enormous impediments arising from social and economic conditions which prevail there.
I will give a fulsome account of those difficulties. The material set out below is drawn from a report prepared by the Department of Foreign Affairs and Trade (DFAT) entitled DFAT Country Information Report – South Sudan dated 5 October 2016 and a European Asylum Support Office report on South Sudan dated 24 April 2020.
South Sudan
The new nation of South Sudan was established in 2011 following two protracted conflicts between the northern and southern regions of Sudan, which had itself gained independence from the United Kingdom and Egypt in 1956. Sudan was riven by civil war for long periods between 1955 and 2005. In 2005 a comprehensive peace agreement (CPA) was entered into between the Government of Sudan and the Sudan People’s Liberation Movement (SPLM) whose support was focussed in the south. The CPA included a commitment to hold a referendum on the sovereignty of the southern provinces. Following this referendum South Sudan became a country on 9 July 2011.
Tensions soon emerged within South Sudan based on ethnic differences and political differences between President Salva Kiir (a Dinka) and Vice President Riek Machar (a Nuer). In 2013 forces split on ethnic lines between the SPLM (loyal to Kiir) and the Sudan People’s Liberation Movement-In-Opposition (SPLM-IO) (loyal to Machar).
In July 2016 fighting broke out between those groups in in the capital Juba and Machar fled the country. In September 2018 the largest warring parties (including Kiir and Machar) signed a new peace agreement. Despite this, fighting continued in some parts of the country. It is estimated that the conflict since 2013 caused 2 million people to flee the country, while another 2 million remain internally displaced. An estimated 382,900 deaths occurred in relation to the conflict in South Sudan between December 2013 and April 2018. The states that were reported as witnessing the highest number of deaths included Western Equatoria where the city of Yambio is located. On 22 February 2020 a unity government was formed with a plan to hold elections within three years. President Kiir agreed to install Machar as his deputy and took responsibility for his security in Juba.
Since the conflict started in December 2013, more than 4 million people have fled their homes, with 2.1 million fleeing to neighbouring countries. An estimated 7 million people are in need of humanitarian assistance in 2019. Of those, more than a half is in need of food assistance. In February 2020 it was reported that some 40 000 people in South Sudan are in ‘famine conditions’.
Between September 2018 to February 2020 11,780 persons returned to their areas of habitual residence. More than 2 million refugees from South Sudan are outside the country mostly in Uganda, Sudan and Ethiopia.
Within Western Equatoria and Yambio there is evidence of violence taking place.
This backdrop of civil conflict has resulted in the humanitarian situation in South Sudan remaining dire.
As of August 2016, 190,000 people were in Protection of Civilian camps run by the UN Mission in South Sudan.
Following independence the population of South Sudan was approximately 35.8 percent Dinka and 15.6 percent Nuer. Azande is a smaller ethnic group.
The majority of the population of South Sudan is Christian and Roman Catholicism is a prominent denomination.
English is the official language although Arabic is widely spoken. Other regional and tribal languages are also very common.
South Sudan’s formal economy is extremely weak and underdeveloped. Juba is the only enclave in South Sudan that operates with something resembling a formal economy. In 2015 South Sudan had a per capita income of approximately USD 790 per annum. Eighty five per cent of the population undertake unpaid work, mainly in agriculture which has been adversely affected by ongoing conflict and drought (an estimated 2.8 million people are now considered severely food insecure). Poverty noticeably and statistically increased, from 44.7 per cent of the population in 2011 to 57.2 percent in 2015 contributing to increasing levels of crime.
Corruption significantly affects South Sudan’s economic performance. South Sudan Ranked 163^rd out of 168 countries on Transparency International’s Corruption perceptions Index in 2015 and 187^th out of 189 countries on the World Bank’s ‘Doing Business: Measuring Regulatory Quality and Efficiency’. Low levels of economic opportunity may act as a push factor for external migration.
South Sudan’s population has extremely poor access to health care. According to data collected prior to the outbreak of conflict in December 2013 South Sudan ranked 169^th out of a total of 187 countries on the UN Development Programme’s 2015 Human Development Index. South Sudan has an average life expectancy of 54.7 years for men. Around 378 percent of the population walk more than 30 minutes one way to collect drinking water. Eighty percent of the population do not have access to toilet facilities. In December 2013 South Sudan’s literacy rate was low – with only 27 percent of the adult population literate. South Sudan has very high unemployment with only 12 per cent of the population being actively employed. This does not reflect the significant reliance on the informal economy. It is therefore difficult to accurately quantify the employment situation in South Sudan. However as at 2016 DFAT assessed that as the security and economic situation has deteriorated, employment opportunities (both in the formal and informal sectors) have also worsened.
The Azande ethnic group in Western Equatoria formed their own self defence force called the Arrow Boys in 2009/2010 in response to an increase in attacks by the Lord’s Resistance Army (an armed group that originated in Uganda in the mid-1980s before moving to other nearby countries in Africa). In November 2015 the South Sudan People’s Patriotic Front drawn largely from the Arrow Boys was formed, and at that time it was ready to merge with the SPLM-IO.
Christianity is the dominant religion in South Sudan and there are a number of different Christian churches there. DFAT considered that individuals are unlikely to experience official or societal discrimination or violence on the basis of their religious identity alone.
The December 2015 State of Human Rights in the Protracted Conflict in South Sudan report by UN Mission in South Sudan and the UN Office of the High Commissioner for Human Rights indicated that at least eight men were extra-judicially killed in October 2014 by the Sudan People’s Liberation Movement-in-Opposition after being captured from a church in Bentiu where civilians were sheltering. The December 2015 State of Human Rights in the Protracted Conflict in South Sudan stated that an unknown number of civilians were stopped and killed in May 2015 at a checkpoint outside the Malakal Protection of Civilian Camp by Shilluk militia.
DFAT assesses as credible reports that individuals have been arbitrarily arrested and detained. Human Rights Watch documented numerous examples of civilians being arbitrarily arrested and detained. Detainees reported being held without charge for up to 10 months, being kept in poor conditions and in some cases brutally beaten and tortured. DFAT considers that the 36 individuals identified by Human Rights Watch likely represent a small proportion of the total number of individuals who have been arbitrarily arrested and detained in South Sudan.
The Government’s ability to maintain effective control and provide adequate state protection is weak. The Government’s control over the Sudan People’s Liberation Army and National Police Service and National Security Service is limited with these groups often acting with impunity and without adequate oversight.
DFAT understands that an individual would likely face difficulty in internally relocating given the significant ethnic dimensions of the current conflict, the omnipresence of illegal armed checkpoints on the roads (where roads exist) and the impact of the dry and wet seasons.
Conditions for returnees differ depending on the individual’s ethnic or sub-ethnic linkages and whether the individual has or has been perceived to question the authority of the Government. Given the supremacy of the Dinka ethnic group in Juba, Dinkas would likely be able to return to Juba without facing discrimination or violence. In-country contacts suggest that an ordinary Nuer or Shilluk who had not threatened the authority of the Government, such as by being perceived to support the Sudan People’s Liberation Movement In Opposition would potentially be able to return to Juba without facing discrimination or violence. However, other in-country contacts suggest it would be difficult to guarantee the safety of any Nuer or Shilluk individuals in Juba given the current situation. The continued presence of substantial Protection of Civilian camps in Juba demonstrate the real risk that still exists within South Sudan, particularly for individuals who are or are perceived to be associated with the SPLM-IO.
As should be clear from this recitation of the profound problems in South Sudan the extent of any impediments that the applicant will face if removed from Australia to South Sudan in establishing himself and maintaining basic living standards are immense. Despite the fact that the applicant is young and healthy, knows the important languages that are spoken in South Sudan and has some work skills which would be useful in many environments, it is clear that if applicant is returned to South Sudan it is a place where the entire population faces enormous hardship. It is unlikely that the South Sudan would be able to provide any social, medical or economic support. It is unlikely the applicant will be able to find work. Without support from outside South Sudan it is unclear how he could survive there. It seems that, like millions of other South Sudanese it would be necessary for him to seek help from humanitarian agencies.
This consideration weighs very heavily in favour of revocation.
Other considerations
In addition to the conditions described above creating severe difficulties for the applicant in establishing and maintaining basic living standards, they also create risks that the applicant will suffer other kinds of harm.
His submissions on this issue include:
My concerns is that I don’t know no one there as ive never lived there and theres a lot of war there inecent ppl getting killed fear for my saft and I will be alone with none and no sooport and famaly [sic][135]
[135] G2, folio 67.
The applicant raised similar concerns in his oral submissions and in his statement of facts and contentions.
I am satisfied that there are very grave risks for the applicant if he is returned to South Sudan. He has never lived there before, knows no-one who lives there, and the country is riven by civil conflict. Upon return he will be at risk of being the subject of random violence and there is the possibility that the applicant will be drawn more directly into the civil unrest present in the country. South Sudan is not a safe country and the risk of the applicant coming to harm in the country is significant.
This weighs very heavily in favour of revocation.
SUMMARY OF FINDINGS – OTHER CONSIDERATIONS
The application of the Other Considerations in the present matter can be summarised as follows:
·International non-refoulement obligations: Does not weigh in favour of revocation except in the sense that, because Australia’s non-refoulement obligations are unlikely to prevent the return of the applicant to South Sudan, the analysis of other factors has proceeded on the basis that the applicant will be returned to South Sudan.
·Strength, nature and duration of ties: in favour of revocation.
·Impact on Australian business interests: not significant and does not support revocation.
·Impact on victims: neutral.
·Extent of impediments if removed: weighs heavily in favour of revocation.
·Other harms faced in South Sudan: weighs heavily in favour of revocation.
CONCLUSION
Is there another reason to revoke the cancellation of the applicant’s visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the power to revoke the applicant’s visa: either the applicant must be found to pass the character test, or the Tribunal must be satisfied that there is another reason why the original decision should be revoked. In exercising the power, the Tribunal must take into account the considerations in Part C of the Direction and other relevant considerations. As I have noted in my decision, the applicant does not pass the character test. Having regard to the Direction and to the totality of the evidence before me, I am not satisfied that there is another reason for the Tribunal to revoke the cancellation of the applicant’s visa.
Contrary to the expectations of the Australian community, the applicant committed multiple offences culminating in a choking offence which rendered his domestic partner unconscious. This was a very serious offence justifying a significant custodial sentence. That crime was committed just over a year after the applicant had been released from prison after serving a sentence for making threats to kill. This criminal history weighs very strongly in favour of non-revocation. The offences committed were very serious and for the reasons explained above, I am satisfied that there remains a significant risk that he will re-offend. If he does, the harm to the Australian community will take the form of violence, potentially directed at a variety of targets but that violence is likely to include his intimate partners.
The expectations of the Australian community and the need to protect the Australian community from the risk of further offending by the applicant, weigh heavily in favour of not revoking the visa cancellation.
Notwithstanding that the applicant has two minor children of his own and is involved in the lives of other minor children, for the reasons explained at ‎130 above, this factor does not weigh heavily in the analysis.
What weighs most heavily in the applicant’s favour are his close ties to the Australian community, his almost total absence of connection to South Sudan and the terrible conditions that prevail in that country. Those matters are almost sufficient to persuade me that revocation of the cancellation is the appropriate decision. However, protection of the Australian community remains a key consideration in matters of this kind. The applicant’s offending has got more serious over time. While the consequences of him being returned to South Sudan are terrible for him, the consequences of leaving the applicant free in the Australian community have a significant prospect of resulting in injury or potentially the death of an innocent member or members of the community. In light of this risk, I give greater weight to primary factors 1 and 3.
DECISION
The decision of the respondent made on 25 May 2020, being a decision of the delegate of the then Minister for Home Affairs not to revoke the cancellation of the Applicant’s Humanitarian visa under s 501CA(4) of the Migration Act 1958 (Cth), is affirmed.

I certify that the preceding 231 (two hundred and thirty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Damien O’Donovan

........................................................................
Associate
Dated: 26 August 2020

Date(s) of hearing: 6 – 7 and 13 August 2020

Applicant: In person

Solicitors for the 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:	6 – 7 and 13 August 2020
Applicant:	In person
Solicitors for the 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