Applicant:DXJL
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2022/6261
Tribunal:Senior Member A. Nikolic
Place:Melbourne
Date:25 October 2024
Decision:The Tribunal affirms the decision under review.
...................[SGD].....................................................
Senior Member A. Nikolic
Catchwords
MIGRATION – mandatory visa cancellation – country of reference yet to be reliably established – extensive violent and other offending – where Applicant granted Class XB (Subclass 202) Global Special Humanitarian visa – failure to pass good character test – substantial criminal record – non-revocation decision – offending and misconduct in custodial settings – whether another reason to revoke the mandatory cancellation – adjournment requests declined – Ministerial Direction no. 110 applied – decision affirmedLegislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
Migration Regulations 1994 (Cth)Cases
Afu v Minister for Home Affairs [2018] FCA 1311
Al-Kateb v Godwin (2004) 219 CLR 562
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Ali v Minister for Home Affairs (2019) 269 FCR 340
Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 294
BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
Brownlie v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 436
Brown v Minister for Immigration and Citizenship [2009] 112 ALD 67
Brown v Minister for Immigration and Citizenship [2010] 183 FCR 113
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 284 FCR 416
CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 294 FCR 318
Cowgill v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 181 ALD 295
CPJ16 v Minister for Home Affairs [2020] FCAFC 212
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
CTK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1211
CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101
DOB18 v Minister for Home Affairs [2018] FCA 1523
Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333
FJP17 v Minister for Home Affairs [2019] FCA 256
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 056
Guden v The Queen (2010) 28 VR 288
Hughes v The Queen (2017) 263 CLR 338
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120
Luck v Secretary of Services Australia [2022] FCAFC 195
Matson v Attorney-General (Cth) [2021] FCA 161
Matthews v Minister for Home Affairs [2020] FCAFC 146
Minister for Home Affairs v Omar (2019) 272 FCR 589
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 (2021) 285 FCR 540
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358
Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Murphy v Minister for Home Affairs [2018] FCA 1924
Nathanson v Minister for Home Affairs (2022) 276 CLR 80
NRFX v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 300 FCR 582NZYQ v Minister for Immigration, Citizenship & Multicultural Affairs [2023] HCA 37
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCATrans 154
O’Keefe v Calwell (1949) 77 CLR 261
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219
QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1
RGCZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2002) 295 FCR 365
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 296 FCR 582
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362
TCXM v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 451
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187
Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
VNPC v Minister for Immigration (2022) 181 ALD 49
YKSB v Minister for Home Affairs [2020] FCAFC 224Secondary Materials
Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth)Sentencing Advisory Council (Vic), ‘Imprisonment’ (Web Page, updated 7 May 2024) et al, HCR-20V3: Assessing risk of violence – User guide (Burnaby, Canada, Simon Fraser University, 2013)
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (together “the Refugee Convention”).
International Covenant on Civil and Political Rights, opened for signature 19 December 1996, 999 UNTS 171 (entered into force 23 March 1976) (“ICCPR”)
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) (“CAT”)Statement of Reasons
INTRODUCTION
The Applicant has asked the Tribunal to review the Respondent’s decision not to revoke the mandatory cancellation of his Class XB (Subclass 202) Global Special Humanitarian visa (“the visa”). The hearing was held in the Tribunal’s Perth Registry between 24 and 26 September 2024. This was at the Applicant’s request because he relocated to Perth after being released from immigration detention in Melbourne in late 2023. The Applicant was represented by Ms Tadros of counsel, who appeared bro bono, and was instructed by the Asylum Seeker Resource Centre (“ASRC”). The Respondent was represented by Mr Lettenmaier of counsel, instructed by Minter Ellison.
For the following reasons the Tribunal affirms the reviewable decision
BACKGROUND
The Applicant is currently 22 years of age and contends he is stateless.[1]
[1] Applicant’s Statement of Facts, Issues, and Contentions dated 17 April 2024, 25 [110] (‘ASFIC’).
The Applicant’s mother fled South Sudan in about 1984 for a refugee camp in Ethiopia, where she met the Applicant’s father in 1986. The Applicant’s father subsequently left to fight in the civil war between Sudan’s Government and the South Sudanese People’s Liberation Army.[2] After the outbreak of the Ethiopian Civil War in 1991, the Applicant’s mother moved to a Kenyan refugee camp where the Applicant was born. He is one of seven children and, notwithstanding his statelessness claim, identifies as ethnically Dinka.[3]
[2] Ibid 1 [4].
[3] Ibid 13 [57.a.]; Exhibit R1, 697.
The Applicant arrived in Australia in 2005 at the age of two on a humanitarian visa with his mother and three siblings.[4] His family initially lived in Perth but moved to Melbourne when the Applicant was 12. This relocation was motivated by factors that included the Applicant’s older brother getting into ‘criminal trouble in Perth’[5] and a desire for his mother to be closer to family support.
[4] Exhibit R1, 139.
[5] Ibid 94 [12], 74 [26].
The Applicant soon became disconnected from family after arriving in Melbourne. He associated with adverse peers, used drugs, attended different high schools, and committed multiple crimes.[6] He undertook some secondary schooling while in juvenile custody.
[6] Ibid 57-60.
The Applicant has appeared in courts on multiple occasions for crimes involving violence, dishonesty, breaching conditional liberty, resisting police, and possessing drugs. Sentences of detention in Youth Justice Centres have been imposed. The Applicant has also offended and engaged in misconduct while in custodial settings. This includes violence and the sexual assault of a female youth custodial officer.
In 2019, the Applicant was convicted of Aggravated Home Invasion (Steal) – Offensive Weapon and sentenced to four years in a Youth Justice Centre.[7] He continued to offend after release on parole. In 2020 he was convicted of Theft of a motor vehicle, Theft, Possess Methylamphetamine, and Deal With Property Suspected of Being Proceeds of Crime.[8]
[7] Ibid 58.
[8] Ibid 57-8.
Procedural history
This matter has an extensive procedural history as follows:
(a)On 10 February 2021, while the Applicant was serving a sentence of full-time imprisonment for an offence against an Australian law, the Respondent cancelled his visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”).[9] The Applicant was invited to make representations to have the cancellation decision revoked and did so on 11 and 17 February 2021 through his lawyers.[10]
[9] Ibid 140-7; Migration Act 1958 (Cth) (‘The Act’).
[10] Ibid 151-182.
(b)On 21 June 2021, the Applicant was moved to immigration detention.
(c)On 29 July 2022, a delegate of the Minister decided not to revoke the cancellation decision under s 501CA(4) of the Act (“non-revocation decision”).
(d)On 24 October 2022, the Tribunal, differently constituted, affirmed the non-revocation decision.[11]
[11] DXJL and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 3809.
(e)The Applicant appealed and, on 21 September 2023, the Federal Court quashed the Tribunal’s decision and remitted the matter for redetermination according to law.[12]
(f)On 21 November 2023, the Applicant was released from immigration detention in Victoria after being granted a Bridging (Removal Pending) Visa (“BVR”). This resulted from the High Court’s decision in NZYQ,[13] which held that constitutional limits apply on the executive detention of unlawful non-citizens under ss 189(1) and 196(1) of the Migration Act. In substance, the Court held that continuing detention under those provisions is unlawful if there is no real prospect of a non-citizen’s removal becoming practicable in the reasonably foreseeable future.[14] A precondition of a BVR is that ‘the Minister is satisfied that the non - citizen's removal from Australia is not reasonably practicable at that time’.[15]
[13] NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCATrans 154 (‘NZYQ').
[14] TCXM v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 451 [27] (‘TCXM’) citing NZYQ v Minister for Immigration, Citizenship & Multicultural Affairs [2023] HCA 37.
[15] Migration Regulations 1994 (Cth) reg 2.20(12)(b).
(g)Strict reporting and monitoring conditions apply to a BVR, breaches of which may constitute a criminal offence and result in mandatory imprisonment.[16] This includes condition 8620 relating to a nightly curfew and condition 8621 requiring the wearing of a monitoring device, which the Applicant is subjected to.
[16] The Act (n 9) pt 2 div 3 sub-div AF. See, eg., ss 76B, 76C, 76DAA, 76DAB, 76DAC, 76DA, 76E.
(h)Following release, the Applicant relocated to Perth where he has since resided with his mother, stepfather, two siblings, and a minor niece and nephew. The Applicant has never had paid employment and relies on a $700 fortnightly special benefit.
(i)On 9 September 2024, the Applicant’s solicitor at the ASRC emailed the Tribunal asking that the substantive hearing be adjourned because the Applicant was confronted with new criminal charges:
Dear Registrar
We write to request an adjournment of this matter because we have just become aware of new criminal charges against [DXJL]. These charges have not been tested and our client has been advised of his rights to claim privilege against self-incrimination.
We consider that it is in the interests of all parties that the matter be deferred until these charges are dealt with by a court. Consideration of these charges in circumstances where our client would not be able to respond to the matters would be highly prejudicial to [DXJL] and have the potential to lead the Tribunal into error.
We have also sought instructions from Mr Patrick Newton, forensic psychologist, and a key witness in this matter, who instructs that he would be unable to form a considered and accurate opinion in the absence of procedural clarity in the criminal proceedings. Mr Newton expressed that relying on an untested police summary to change his report would be procedurally unfair and abrogate [DXJL’s] right to address the charges himself.
[DXJL] is due to appear before the Magistrates Court of Western Australia on …September 2024….
Given there is no 84-day limit in this case, and given [DXJL] is not in detention, we do not consider that a postponement is prejudicial, although we are very mindful of causing any inconvenience to the Tribunal. We respectfully request that this matter is adjourned to a date not before the conclusion of [DXJL’s] criminal proceedings and noting the need for further engagement with Mr Patrick Newton. We will be able to give an indication as to the timetable of [DXJL’s] criminal matter once the mention has been heard.
Due to the limited timeframe, we have not sought the position of the Respondent in this matter, however, they are included in this correspondence, and we would welcome the opportunity to address these issues at an urgent directions hearing.
(j)The Tribunal held a telephone hearing on 12 September, during which the parties made submissions about the adjournment request, which the Respondent did not oppose. The Tribunal declined to vacate the scheduled hearing, however, and noted that consent of the parties is not determinative of an adjournment request. Moreover, the recent unspecified charges against the Applicant are yet to be considered by a court and the outcome may not be known for a lengthy period. This includes whether they are ultimately proceeded with. The new charges are not part of the factual matrix for the present hearing and the Tribunal did not accept that the reasons proposed for an adjournment were sufficiently cogent. The Tribunal also noted that DJXL’s application has been before the Tribunal for over two years. Notice of the hearing date was provided well in advance (November 2023), and several adjournments had already been granted. Hearings scheduled for 8-10 April 2024 and then 29-31 July 2024 were vacated, because of requests to have the matter heard in Perth, the health of one of the Applicant’s witnesses, and availability of counsel. Several amendments have also been made to scheduling orders for submission of materials as requested by the parties.
(k)A day later, on 13 September 2024, the Applicant’s solicitor lodged a further adjournment request as follows, which was in comparable terms to the first:
…
We refer to the above matter.
Following the directions hearing held on 12 September 2024, the applicant's representative contacted Mr Patrick Newton, forensic psychiatrist and a key expert witness, to advise that the Tribunal had directed the matter to proceed on the scheduled dates on the basis that the Applicant would not be prejudiced as the untested charges, including the fact of them, would not be taken into account.
Mr Newton advised that even in these circumstances where he had knowledge of factors potentially material to his assessment of the applicant's risk but could not give [the Applicant] the opportunity to respond to those matters due to his right to claim privilege against self-incrimination, he would be unable to give evidence in relation to his 10 April 2024 report. The representative discussed the option of Mr Newton urgently meeting with the applicant to prepare a supplementary report, however, Mr Newton advised that such a report would be contrary to the Tribunal’s direction and would inevitably be prejudicial to [the Applicant] as it would likely contain information about the new charges (which have not been tested), in circumstances where [the Applicant] could not respond to those matters without having to waive his right to claim privilege against self-incrimination.
While we appreciate the Tribunal's direction that the new charges would not be taken into account during the hearing, in circumstances where the applicant's key expert witness can not give evidence in accordance with this direction, we consider that the applicant’s case cannot proceed on the current dates without being seriously prejudiced.
As such, we again press for the matter to be adjourned to another directions hearing in a month's time pursuant to the Tribunal’s power under s40 of the Act, noting that this discretionary power must be exercised reasonably. We are concerned that a refusal to adjourn the proceedings would be unreasonable in the sense set out in Minister for Immigration and Citizenship v Li [2013] HCA 18 in circumstances where:
- the applicant faces serious prejudice by proceeding on the current dates;
- the applicant does not now have a reasonable opportunity to present his case as per s39 of the Act;
- the respondent has not indicated that it would suffer any prejudice by an adjournment and consents to an adjournment;
- in carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is relevantly ‘fair’ and ‘just’ and proportionate to the importance and complexity of the matter as per s2A of the Act.
- The importance and gravity of this proceeding to the Applicant’s future cannot be understated; and
- we do not consider, in the current circumstances, that we would be able to assist the Tribunal to fulfil these objectives as per our obligation under s33(1)(AB).
Although we fully appreciate that the Tribunal has made arrangements for this matter (as has the parties) for this matter to be heard on the present dates and we deeply apologise for the inconvenience that such an adjournment would cause to the Tribunal (and parties’ representatives), we consider that the above factors ought outweigh this concern. We note that in Li the Tribunal’s assertion that ‘the applicant had been provided with enough opportunities to present her case’ was not considered sufficient to save its decision from being considered unreasonable.
Due to the limited timeframe, we have not discussed this second adjournment request with the Respondent, however, we note their consent in relation to the first adjournment request and have included them in this correspondence. Again, we would welcome the opportunity to address these issues at an urgent directions hearing.’
(Errors in original).
(l)The Tribunal again declined the adjournment application, gave the following explanation, and undertook to include it in these substantive reasons:
(i)The second adjournment application, only a day after the Tribunal decided to decline the first, was founded on comparable grounds.
(ii)The new charges are not part of the factual matrix for the present hearing and their outcome may not be known for some time. The Tribunal was in effect being asked to delay the hearing for an indeterminate period.
(iii)The existence of a criminal charge/(s) is no indication that a person has committed an offence. The Applicant is presumed innocent unless a court finds him guilty of an offence and, in the meantime, has a privilege against self-incrimination. Although the existence of the new charges was notified by the Applicant’s lawyers, no weight will be placed on this issue nor questioning permitted about pending charges in the current hearing. The first time this should occur is before a Court of criminal jurisdiction. There is no proper basis, therefore, for the contention that: ‘Consideration of these charges where our client would not be able to respond to the matters would be highly prejudicial…and have the potential to lead the Tribunal into error.’
(iv)The Tribunal did not accept that the expert witness, an experienced forensic psychologist, needed to update his report to ‘form a considered and accurate opinion’ about the pending charges, or needed to rely on ‘an untested police summary to change his report’, or to ‘urgently’ meet with the Applicant to ‘prepare a supplementary report’, when the pending charges are not being discussed in the present hearing. The Tribunal also did not accept there was any impediment to an expert witness giving evidence based on a report they had already prepared, without regard for the pending charges. The purported imperative for a supplementary report is not made out.
(v)The reference in the second adjournment request to Minister for Immigration and Citizenship v Li [2013] HCA 18 (“Li”) is inapt. Li relates to a decision by the Migration and Review Division of this Tribunal where an adjournment was not provided while knowing the applicant awaited the outcome of a review by Trades Recognition Australia, which may have been favourable to her work visa application. The Court noted that ‘the question which arose for the Tribunal was whether its review ought to be adjourned in order to afford Ms Li the opportunity to put forward the second skills assessment once TRA's review of it was completed’. The facts in Li are distinguishable from the present matter. It is noteworthy that paragraph 10 of Li states: ‘…Each tribunal must identify for itself the issues that arise in the application before it…’. As the Tribunal had conveyed, the pending charges are not an issue relevant to determining DXJL’s application. The contention, therefore, that failing to adjourn the hearing until the charges are finalised may constitute an unreasonable exercise of power or deny the Applicant procedural fairness, is rejected.
(vi)It therefore follows that the grounds presented in both adjournment requests are insufficiently cogent to justify further adjournment. The hearing subsequently proceeded as scheduled.
LEGISLATIVE FRAMEWORK
Section 13 of the Administrative Review Tribunal Act 2024 (Cth) (“the ART Act”) and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction in this matter.
Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test and is serving a full-time sentence of imprisonment.
The ‘character test’ is defined in s 501(6) of the Act and a person does not pass it if they have a ‘substantial criminal record’ as defined by s 501(7). This includes if they have been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).
Under s 501CA(3) of the Act, the Minister is obliged to give notice of a cancellation decision as soon as practicable after it is made, and invite the affected person to make representations about revocation. Provisions relating to the form and process of those representations are found in reg 2.52 of the Migration Regulations 1994 (Cth).
Section 501CA(4) of the Act confers a discretionary power upon the Minister to revoke the original decision, if the person whose visa has been cancelled makes representations in accordance with the invitation, and the Minister is satisfied that the person passes the character test, or there is another reason why the original decision should be revoked.
Section 49 of the ART Act provides that the procedure of the Tribunal is within the discretion of the Tribunal having regard for the circumstances of the proceeding. Section 52 of the ART Act states that the Tribunal ‘is not bound by the rules of evidence but may inform itself on any matter in such manner as it considers appropriate’.
ISSUE
Section 501(12) of the Act provides that ‘imprisonment’ includes any form of punitive detention in a facility or institution. As Rares J held in Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113 at [7]:
‘…The definitions of “imprisonment” and “sentence” in s 501(12) are in the inclusive form; that is, each definition elucidates but does not limit the ordinary and natural meaning of the word…The focus of ss 501(7)(c) and (d) is on the length of the term of imprisonment to which the person is sentenced, not the manner in which the sentence is to be, or subsequently may be, served.’[17]
[17] As upheld in Ali v Minister for Home Affairs (2019) 269 FCR 340 (Jagot, Burley and Lee JJ).
Sentences of detention in a Youth Justice Centre fall with the meaning of ‘imprisonment’. It follows that the Applicant does not pass the character test because of his 2019 conviction and four-year sentence in a Youth Justice Centre. Accordingly, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation decision. The remaining issue under s 501CA(4)(b)(ii) of the Act is whether there is ‘another reason’ for revocation.[18] The Tribunal ‘stand[s] in the shoes of the original decision-maker’ but considers the available evidence ‘at the time of the Tribunal’s decision’.[19]
[18] Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187, 191-2 [3]-[5] (Katzmann J), 198 [24] (Derrington J), 219 [103] (O’Bryan J) (‘Tohi’).
[19] Nathanson v Minister for Home Affairs (2022) 276 CLR 80 (‘Nathanson’); Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51]; Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 299 [40], 315 [100], 324-325 [134].
The Full Court of the Federal Court in Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs reflected with approval upon the reasoning in Viane[20] and, at [27], identified the following principles as relevant to the statutory task conferred by s 501CA(4):
(1) If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.
(2) The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.
(3) The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.
(4) However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.
(5) Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.
(6) If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation.
[20] (2021) 287 FCR 294 (‘Bettencourt’); Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, 545 [64] (Colvin J).
More recently, in Plaintiff M1/2021, a majority of the High Court relevantly said:[21]
22. Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason” why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is “another reason” for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is “another reason” for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.
23. …The question remains how the representations are to be considered.
24. Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations…the weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
25. …What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
…
(Citations omitted).
[21] Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582, [22]-[27] (Kiefel CJ, Keane, Gordon, and Steward JJ) (‘Plaintiff M1/2021’).
DIRECTION 110
In making its decision, the Tribunal must comply with a ministerial direction under s 499(1) of the Act, known as “Ministerial Direction 110” (“the Direction”).[22] The Direction contains ‘mandatory and aspirational considerations’ guiding the exercise of statutory power.[23]
[22] The Act (n 9) s 499(2A); CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 284 FCR 416, 417-8 [4] (Rares, O’Callaghan and Jackson JJ); Nathanson (n 19), 540 [4]; Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No. 110: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (commenced 21 June 2024) (‘The Direction’).
[23] BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99, [22], citing with approval Matthews v Minister for Home Affairs [2020] FCAFC 146, [45].
Clause 5.1 of the Direction sets out several objectives, the first of which is to ‘…regulate, in the national interest, the coming into, and presence in, Australia of non-citizens’. Clause 5.1(2) states in relation to decisions under s 501(1) of the Act:
…Where the discretion to refuse to grant…a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.
The following principles at cl 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The safety of the Australian Community is the highest priority of the Australian Government.
(3)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the noncitizen poses a measureable risk of causing physical harm to the Australian community.
(5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Clause 6 of the Direction provides that, informed by the principles in cl 5.2, a decision-maker must have regard to clauses 8 and 9, where relevant to the decision.
Clause 8 of the Direction identifies the following primary considerations:
(1) Protection of the Australian community from criminal or other serious conduct;
(2) Whether the conduct engaged in constituted family violence;
(3) The strength, nature, and duration of ties to Australia;
(4) The best interests of minor children in Australia; and
(5) Expectations of the Australian community.
Clause 9(1) of the Direction sets out a non-exhaustive list of other considerations:
(a)Legal consequences of the decision;
(b)Extent of impediments if removed; and
(c)Impact on Australian business interests.
Clause 7(1) provides that when applying primary and other considerations, appropriate weight should be given to ‘information and evidence from independent and authoritative sources’.
Clause 7(2) states that the primary consideration Protection of the Australian community is ‘generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.’
Clause 7(3) states that ‘One or more primary considerations may outweigh other primary considerations’.
The individual and cumulative weighing process is a matter for individual decision-makers.[24]
EVIDENCE
Documentary evidence
[24] CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138, [28], [37]‑[38] (Colvin, Stewart and Jackson JJ); Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) FCR 582, 587 [23] (Mortimer J, as her Honour then was); Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, 551 [23], 522 [28] (Colvin J); Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, 473 [57].
Statement of Facts, Issues, and Contentions
A Statement of Facts, Issues, and Contentions (“SFIC”) is comparable to a pleadings document in courts. Ms Tadros advised the Tribunal in closing submissions that reliance continues to be placed in this proceeding on the Applicant’s Statement of Facts, Issues, and Contentions (“ASFIC”) dated 16 September 2022.[25] This was filed for the first Tribunal hearing by the Applicant’s former solicitor over two years ago. The Applicant also relies on a 38-page ASFIC dated 17 April 2024 and submissions in reply to the Respondent’s SFIC dated 19 September 2024, which is 42 pages long. This created some difficulties for the Tribunal given the changes in the Applicant’s circumstances during the last two years and inconsistencies between the 2022 and 2024 submissions as follows:
(a)The weighing exercise referred to in the 2022 document is based on Direction 90, which has since changed under Direction 110.
(b)The 2022 ASFIC submitted that the Applicant ‘poses a minimal risk to the Australian community’ and that ‘his risk to the Australian community is low’. This is different to the submissions advanced about risk in the 2024 documents.
(c)It is contended in the 2022 ASFIC that the Applicant’s 2020 offending was ‘relatively minor by comparison to the offending which gave rise to the failure of the Character Test.’ This is again inconsistent with the 2024 submissions.
(d)The submissions in the 2022 document about community expectations and non-refoulement have been overtaken by the Applicant’s release from detention in late 2023 and the different submissions now contained in the 2024 documents. For example, indefinite detention is not currently apposite to the Applicant’s circumstances given his release into the community on a BVR.
(e)The 2022 document states that the ‘Tribunal will be required to make findings’ about the country of reference given the ‘Applicant’s status as a South Sudanese citizen (or otherwise) is unclear, considering that the Applicant was…born in Kenya’. The 2024 documents properly acknowledge the High Court’s decision in Plaintiff M1/2021, as enabling the Tribunal to defer consideration of this issue if an Applicant is eligible to apply for a Protection Visa.
(f)The submissions in the 2022 about ‘Consequences of non-revocation’ have also been overtaken by events.
[25] Exhibit R1, 547-56.
It would be of considerable assistance to the Tribunal in remitted proceedings if the SFIC lodged by parties clearly and succinctly sets out the submissions and contentions advanced at the time of the hearing. The same applies to documents lodged across several proceedings. The Respondent’s documents in this proceeding exceeded 2000 pages. On the final hearing day, the Tribunal asked the Applicant’s lawyers to clarify by 2 October 2024 which of the abundant documents in evidence regarding the situation in South Sudan were no longer relied upon, given that 15 new exhibits had been tendered during the present hearing. The Tribunal noted that some documents previously tendered in an ‘Applicant’s Bundle of Country Information’ were somewhat dated, including reports regarding the treatment of mental health in South Sudan dating back 2012 and 2016. This information was not provided by 2 October 2024 without any explanation for the delay. On 3 October 2024, Ms Caitlyn Caldwell of the Asylum Seeker Resource Centre emailed the Tribunal to the advise that only the Human Rights Watch Report 2022 report[26] and Amnesty International 2021/2022 report[27] were no longer relied upon, but that the Applicant continues to rely on all the other country information previously lodged. It would be of considerable assistance to the Tribunal if a more selective approach to filing documents is taken by parties and greater clarity provided about how documents tendered into evidence intersect with an applicant’s individual circumstances and their submissions.
[26] Exhibit R1, 714-20.
[27] Ibid 721-7.
Approximately 3000 pages of documents were tendered into evidence as follows:
(a)Appeal book lodged by the Respondent;[28]
[28] Exhibit R1.
(b)Supplementary documents lodged by the Respondent;[29]
[29] Exhibit R2.
(c)Applicant’s statement dated 11 April 2024;[30]
[30] Exhibit A1.
(d)Report of clinical and forensic psychologist Mr Patrick Newton dated 10 April 2024;[31]
[31] Exhibit A2.
(e)Statement of the Applicant’s mother dated 11 April 2024;[32]
[32] Exhibit A3.
(f)Statement of the Applicant’s sister dated 12 April 2024;[33]
[33] Exhibit A4.
(g)Statement of Mr Sam Woollard from the Youth Justice Division of Victoria’s Department of Justice and Community Safety dated 29 February 2024;[34]
[34] Exhibit A5.
(h)Statement of Ms Areej Nur, Culturally Responsive Practice Manager at Parkville College, dated 14 March 2024;[35]
[35] Exhibit A6.
(i)Statement of Mr Matthew Hyde, Executive Principal of Parkville College, dated 26 March 2024;[36]
[36] Exhibit A7.
(j)Statement of Ms Jasmine Pavan, solicitor with Women’s Legal Service WA, dated 13 September 2024;[37]
[37] Exhibit A8.
(k)Statement of Mr Sebit Okeny, Culturally Responsive Practice Manager at Parkville College, dated 13 March 2024;[38]
[38] Exhibit A9.
(l)Statement of Ms Malesh Jade Eile, Youth Worker at O-Street, dated 29 February 2024;[39]
[39] Exhibit A10.
(m)Breaking the Cycle (AVIP-2) Modules Completion Report by Ms Kimberley Shaw dated 18 February 2021;[40]
[40] Exhibit A11.
(n)Notice of visa grant and conditions – Class WR Bridging R (subclass 070) visa dated 13 March 2024;[41]
[41] Exhibit A12.
(o)Activity Attendance Sheet regarding Applicant earning IAP points in immigration detention between 17 May 2023 and 21 November 2023, and five Individual Management Plan Reviews between 15 September 2023 and 12 November 2023;[42]
[42] Exhibit A13.
(p)Country Information Reports lodged by the Applicant, comprising:
(i)South Sudan 2022 Human Rights Report from the United States Department of State;[43]
[43] Exhibit A14.
(ii)Article dated 18 October 2022 titled ‘Interlocking Crises: Why Humanitarian needs keep increasing in South Sudan’;[44]
[44] Exhibit A15.
(iii)UNHCR Report dated 2023 titled ‘Culture, context and mental health and psychosocial well-being of refugees and internally displaced persons from South Sudan’;[45]
[45] Exhibit A16.
(iv)Extract from Amnesty International Report 2022/23 titled ‘South Sudan’;[46]
[46] Exhibit A17.
(v)OCHA Situation Report on South Sudan dated 6 July 2023 titled ‘South Sudan – Response for Sudan Crisis’;[47]
[47] Exhibit A18.
(vi)Emergency Dashboard from the World Food Programme titled ‘South Sudan’;[48]
[48] Exhibit A19.
(vii)Report from Refugees International dated July 2023 titled ‘Return to a displaced nation: The Sudan Crisis and South Sudan’s returnees’;[49]
(viii)United Nations report dated April – June 2023 titled ‘Brief on violence affecting civilians’;[50]
(ix)Smartraveller.gov.au report on South Sudan updated 5 October 2023;[51]
(x)Reuters article dated 21 November 2023 titled ‘Ethnic fighting kills 32 in disputed region straddling Sudan, South Sudan’;[52]
(xi)World Food Programme Situation Report #318 dated 31 December 2023;[53]
(xii)Al Jazeera news article dated 29 January 2024 titled ‘Dozens killed as violence flares in region disputed by Sudan’;[54]
(xiii)Humanitarian Aid article dated 20 February 2024 titled ‘Sudan conflict spilling to South Sudan, UN official warns’;[55] and
(xiv)Human Rights Watch article titled ‘South Sudan Events of 2023’.[56]
(q)Four records dated between 19 September 2023 and 7 July 2021 from the Applicant’s medical file in immigration detention.[57]
[49] Exhibit A20.
[50] Exhibit A21.
[51] Exhibit A22.
[52] Exhibit A23.
[53] Exhibit A24.
[54] Exhibit A25.
[55] Exhibit A26.
[56] Exhibit A27.
[57] Exhibit A28.
Applicant’s evidence
The Applicant’s documentary evidence includes multiple statements.[58] His oral evidence took up all the first hearing day and part of the second. At the commencement of his oral testimony, he adopted a 12-page statement dated 11 April 2024 as true and correct. The Tribunal confirmed with the Applicant that he had discussed his privilege against self-incrimination with Ms Tadros. At several stages of the hearing the Tribunal reminded him of this. Key aspects of the Applicant’s oral testimony are summarised as follows.
[58] Exhibit R1, including 210-11, 584-90, 697-9.
Life prior to arrival in Australia
The Applicant said he learned about his early life from his mother. He did not really know his father and claimed that paternal guidance would have made ‘things…different’ for him. His mother was not someone he could talk to, but he did have an older sibling to rely upon. The Applicant said he has always enjoyed a close relationship with his family members.
Life after arrival in Australia
The Applicant recalled how difficult it was for his mother, a single woman from Africa, to look after her children in a new country. He nevertheless characterised his early life in Australia as ‘good’ and ‘positive’. He was involved with sports, family, and other social activities. He also recalled getting into a fight with a classmate in primary school that may have led to expulsion but could not specifically recall because of the passage of time.
The Applicant and some members of his family relocated to Melbourne in 2014 when he was 11 or 12 years of age. He found it hard to fit in and make friends. Other members of his family joined them from Perth in 2016. The Applicant said he attended several high schools in Melbourne where he experienced ‘racism and disrespect’. This made him ‘feel alone’ and caused him to associate with other (older) African youths. He recalled being drawn to the ‘wrong crowd’ because they accepted him and gave him a ‘sense of belonging…and that’s how everything started from there’. Associating with negative peers also caused him to become disconnected from his family.
Offending
The Applicant agreed that his criminal history is accurately summarised in a document dated 17 December 2020.[59] He also agreed that some crimes occurred while he was on conditional liberty orders such as bail or parole. When asked by Ms Tadros how he feels about this history, the Applicant said he is disappointed in himself, felt like he had let people down, but referred to it as ‘just a hiccup in [his] life…that doesn’t define [his] life’.
[59] Ibid 57-60.
A recurring feature of the Applicant’s evidence is that he previously gravitated to a ‘wrong crowd’ but has since matured, is remorseful, has greater insight into the consequences of his conduct, continues a ‘rehabilitation journey’, and is now better placed to lead a law-abiding life. This includes because of strong family support, a desire not to cause any further ‘shame’, and a realisation that ‘it’s OK to ask and seek help from others’. The Applicant said the significant time he spent in custodial settings taught him a lot about himself and the ‘path [he] wants to choose now is completely different’.
In terms of substance abuse, the Applicant said he started using cannabis, Xanax, and alcohol regularly with an adverse peer group from a young age. When asked by Mr Lettenmaier why he didn’t associate with cousins at the school he attended in Melbourne and why they didn’t accept him, the Applicant responded: ‘For their own reasons’. When asked if these cousins were part of this ‘wrong crowd’, the Applicant denied this. Mr Lettenmaier referred the Applicant to a 2017 Group Conference, which involved a victim the Applicant had robbed and assaulted ‘in the company of his elder twin cousins’.[60] The Applicant accepted he committed these offences in the company of his cousins, but denied they were part of the ‘wrong crowd’. When asked by Mr Lettenmaier if any of his cousins were also involved in a ‘swarming offence’ at a Chemist Warehouse, for which the Applicant was convicted of theft in October 2020, the Applicant claimed he could not recall.
[60] Exhibit R2, 73.
The Applicant was asked about a claim by Victoria Police as follows that he associated with two street gangs in Melbourne involved in violent crimes:
[The Applicant] …is closely associated with and has links to the “MTS (menace to Society)” and “BBG (Black Belly Gang)” street gangs.
[The Applicant’s] offending is of significant concern to Victoria Police. His record has demonstrated a consistent disregard for the community and has regularly involved; serious assaults, theft and property offences. He has presented as having little to no regard for the law and the community. Victoria Police have concerns about the seriousness and prevalence of his escalating offending and the risk he poses to the community.[61]
[61] Exhibit R1, 110-2.
The Applicant responded that he ‘wasn’t part of the gangs but knew people who were part of both gangs’.
The Applicant claimed his offences always occurred while affected by drugs or alcohol. He was asked about a conviction for possessing 17 grams of methylamphetamine (“ice”) in 2020, during which the Court declined to accept the Applicant found these drugs. The Applicant maintains he found them and has never used ice. When asked by Ms Tadros how he felt about being convicted of possessing ice, the Applicant responded: ‘I wish I wasn’t in that situation…I also wish I could have made a better decision’.
The Applicant was taken by Ms Tadros to a Victim Impact Statement relating to his last aggravated home invasion offence.[62] He agreed it was a very violent offence with a terrible impact on the victim.[63] He feels ‘a lot of guilt’ because he ‘traumatised’ the victim who was an ‘older lady with a disabled daughter’. When asked by Ms Tadros what he would say to the victim if given an opportunity, the Applicant said he would tell her he is ‘sincerely sorry…was young minded, immature and reckless… [but is] …a different person now and wished it hadn’t taken place’. The Applicant was also asked about a past robbery and unlawful assault conviction, in which the victim stated they now had a tainted view of Sudanese people.[64] The Applicant said he regretted that his conduct adversely affected the victim’s marriage, perspectives about African people, and ‘wished it hadn’t happened’. Ms Tadros asked the Applicant about a Group Conference process in which the Applicant apologised to this victim but went on to commit more offences. The Applicant again relied on the contention that he ‘was young-minded’ but now has ‘a better understanding’ about the consequences of his crimes.
[62] Exhibit R2, 43-6.
[63] Exhibit R1, 95 [19].
[64] Exhibit R2, 71.
In cross-examination, Mr Lettenmaier questioned the Applicant about his claims at the last Tribunal hearing that his most recent aggravated home invasion was unplanned and there wasn’t really a motive.[65] The Applicant insisted: ‘It wasn’t planned, it just happened’. When asked about his level of involvement, the Applicant claimed he was initially ‘behind’ the other co-offenders ‘listening to what was happening’. He claimed he was pressured into offending by co-offenders and, although armed with a shovel he took from the victim’s garage, claims he told the elderly victim to go inside a room where she would be safe, and the offenders would then leave. The Applicant could not recall the elderly victim being told ‘Car key, car key, go inside the house so I don't kill you, car key quick’.[66]
[65] Exhibit R1, 1087.
[66] Ibid 92-3 [5].
The Applicant was taken by Mr Lettenmaier to a report by psychologist Michael Diab dated 15 February 2020,[67] in which the following explanation of this offending is recorded:
‘Preliminary briefs by Informant Oakley state that in November 2018, [the Applicant] and four other youth were captured on CCTV loitering around a train station and were noted to leave the area around 5:30am. The brief notes that three of these youths, including [the Applicant], then forced their way into the garage of a home nearby, stealing garden shears, a sledgehammer and other items. The offenders broke the rear door with the sledgehammer to force their way into the premises, to find three occupants who all woke up due to the noise. One of the offenders then demanded the victim's car keys whilst pointing a firearm at her and when the keys were handed over, the group ran from the house stealing the vehicle. The brief notes that [the Applicant] and his co-offenders were later seen on CCTV driving erratically and found by Victoria police at another address when police were called to intervene. When asked about this offence during the current assessment, [the Applicant] stated that whilst on parole he absconded from his Aunt's house for 2 days and his mother was calling him to go home during this time. He mentioned that on the night of the offence he was at a "trap house" (halfway house) with peers using substances (Xanax and cannabis), had slept all day which meant he was awake throughout the night. [The Applicant] disclosed that he and his peers were stranded at the train station and wanted to find a way home. He stated that he had "no other option" to get home and it was a joint decision between them to steal a car from someone's house. [The Applicant] disclosed that he does not "really touch people" during aggravated home invasions as he mentioned that he only 'looks for keys'. However, he mentioned that 'you don't really think' in the moment when adrenaline kicks in which he described as something he had no control over. He mentioned that he had rarely offended alone and that substances often helped when he was feeling anxious before these events.
[67] Ibid 285.
The Applicant expressly denied telling Mr Diab he was part of a joint decision to take a car, or that he discussed with co-offenders looking for an ‘easy’ house that did not have a CCTV system, or that he would look for a weapon – specifically a hammer or a stick when committing these offences, or felt a rush of adrenaline when engaging in home invasions, or that after using Xanax he had the ‘urge to commit more home invasions’ and was ‘not really worried about being caught or harmed as he was protected by his peers’.[68] The Applicant’s immediate responses to these questions included: ‘I didn’t tell him that…No… [and] I never said that’. The Applicant was initially adamant these aspects of Mr Diab’s report were ‘incorrect’. He did recall telling Mr Diab, however, that he was at a halfway house, used Xanax and cannabis, and had little sleep in the days prior to the offending. He also recalled telling Mr Diab that ‘he does not really touch people during aggravated home invasions,’[69] and that he always offended with peers because he lacked the courage to do so himself. The Applicant rejected Mr Lettenmaier’s contention that the matters he could recall largely focussed on aspects of Mr Diab’s report that were favourable to him.
[68] Ibid 286.
[69] Ibid.
During re-examination, the Applicant was asked by Ms Tadros about the responses he gave about Mr Diab’s report. He said that he could not recall everything discussed with Mr Diab. When asked by Ms Tadros if it was still his evidence that he did not provide some of the information recorded in Mr Diab’s report, the Applicant recanted by responding: ‘No’.
The Applicant recalled that he got ‘an order’ rather than imprisonment for his first two home invasion offences. When asked why he did not learn from these two crimes and change his ways, he said:
‘That’s a hard question. I wanted to change, I could have changed, but I decided not to change. I did think about changing. But there were times when I stopped thinking about the future and went back to my old self’.
The Applicant recalled being involved in multiple assaults while at Parkville Youth Justice Centre against other inmates and staff. When asked why, he explained that he felt ‘a bit distant from case workers’ at that time, and ‘a lot of altercations’ were inevitable because adversaries tend to ‘fight regardless’ when confronting each other.
Ms Tadros asked the Applicant about the sentencing judge’s remarks in November 2019 about signs that he was no longer ‘the danger to the community [compared to when he was] arrested in late 2018’, following which he reoffended in 2020 while on parole. The Applicant responded inter alia:
‘My main thing was Covid restrictions…It was hard for me…I was trying to manage my own accommodation…I needed my family there…I was just feeling lost again and found myself with the wrong crowd and couldn’t get away from that situation…’.
The Applicant was asked during cross-examination why strong family support in the past did not stop him from abusing substances and committing crimes. He responded: ‘It wasn’t because of them, it was because of me’. He said teachers in youth detention and youth parole officers were ‘always there’, and said he was motivated by the positive comments of sentencing judges but ‘wasn’t ready to take it…I just wasn’t ready’. When asked to identify when he became ‘ready’, the Applicant said this occurred when he was ‘about to get released’ from detention in late 2023.
Conduct in custodial settings
Ms Tadros asked the Applicant how he feels about the sexual assault committed against a female staff member at a Youth Justice Centre after being ‘egged on’ by others in custody.[70] The Applicant said he felt ‘hurt’ by his conduct, because it disrespected women and stated: ‘How would I feel if it was my mother or female sibling who was assaulted…I wish I never did that…I was just listening to other people’.
[70] Ibid 109.
During cross-examination, Mr Lettenmaier asked the Applicant about multiple incidents recorded against him in detention. This included the discovery of 13 packets of Suboxone concealed in an item delivered by the Applicant’s cousin.[71] The Applicant said he knows what Suboxone is, did ask his cousin to drop off items at the detention centre, but insisted he did not know the Suboxone was concealed and did not ask his cousin to deliver Suboxone to him. He also claimed his cousin was unaware the Suboxone was concealed inside the item. The Applicant said his evidence about this incident at the last Tribunal hearing[72] remains his evidence for this proceeding. He characterised the incident as a ‘misunderstanding because no one knows where [the Suboxone] came from’. The Applicant disagreed with Mr Lettenmaier that his explanation for the Suboxone incident was comparably implausible to a past claim that he found 17 grams of ice on the ground, which led to his 2020 conviction for possession.
[71] Ibid 134.
[72] Ibid 1109.
When asked about an incident where four tablets were found in his cell,[73] the Applicant agreed the tablets were his. He claimed they were his prescribed medication (Mirtazapine), which made him drowsy, so he decided to bring the medication to his cell for later consumption rather than taking it when dispensed as he was required to.
[73] Exhibit R2, 729.
In terms of his alleged involvement in a riot at the detention centre, the Applicant said he ‘never climbed on any roof or broke stuff’ but accepted that he walked out of bounds during the riot. When asked by Mr Lettenmaier why he didn’t just stay in his room, the Applicant agreed he could have done so but wanted to ‘see what was happening’.
When asked about physical altercations with one detainee on 10 March 2022[74] and a group of detainees on 7 July 2023, the Applicant agreed these incidents occurred. He said the first incident was an ‘altercation between the African boys and Asians’ that ‘escalated’. He conceded it was ‘wrong to take a swing’ at another detainee during the July 2023 incident, but claimed he was acting in self-defence.
[74] Exhibit R1, 135-8
Other incidents of misconduct raised with the Applicant were:
(a)In July 2022, two small packages containing vegetable matter, foil, and a piece of wire were found in a room occupied by the Applicant and another detainee. These tested positive to ice, tramadol, and THC.[75] The Applicant recalled the incident but said the items were not his.
(b)An incident report dated July 2022 refers to the Applicant aggressively abusing a female officer by calling her a ‘bitch’ and a ‘slut’ after she asked him start packing up a recreational activity.[76] The Applicant recalled this incident and conceded that he argued with the female officer, but claimed the report was a ‘misunderstanding’ because he did not call her a bitch or a slut. He thought a bystander may have done so. The Applicant accepted that during another incident in December 2019 he stated to a female Youth Custodial Officer: ‘Fuck you fucking slut fucking bitch fucking slut don't you ever come to my unit’.[77]
(c)In April 2023, a room search discovered smoking paraphernalia, broken nail clippers, two open wires, and foil.[78] The Applicant recalled the incident but claimed the items were not his.
(d)The Applicant was referred to multiple reports alleging he passed contraband through fences separating compounds in the detention centre.[79] The Applicant accepted these reports were accurate, knew that passing contraband was impermissible, but continued to do so. He claimed that the contraband was ‘mostly cigarettes, filters, and papers’.
(e)The Applicant was asked about a ‘major incident’ relating to the discovery of an ‘improvised crafted weapon’ by an Emergency Response Team on 6 September 2023, in a room the Applicant shared with another person.[80] The Applicant claimed it was not his weapon. When asked whose it was, he responded: ‘I’m not sure’.
[75] Ibid 133.
[76] Ibid 132.
[77] Ibid 424.
[78] Exhibit R2, 737.
[79] Exhibit R1, 117; Exhibit R2, 733, 738-9, 744.
[80] Exhibit R2, 731.
During re-examination, Ms Tadros asked the Applicant why he had not followed rules in custodial settings on occasions, to which he responded: ‘I can’t really explain why …there’s no reason to it’.
Recidivism risk
The Applicant was referred to positive reports from Parkville College and the Principal’s observation that his attitude ‘changed at a particular point in time in 2019’.[81] The Applicant agreed that his conduct thereafter was ‘good and bad – sometimes I’d mess up’. When challenged by Mr Lettenmaier that he could not justify re-offending in 2020 by continuing to claim he was ‘young-minded’, the Applicant accepted this.
[81] Exhibit A7.
Ms Tadros asked the Applicant how the Tribunal could be confident he would not reoffend, given the frequency of his crimes while on conditional liberty. The Applicant responded: ‘At the time I didn’t really have an understanding what I was doing was breaking the law’. When challenged that multiple court appearances should have amply conveyed this, the Applicant responded: ‘I didn’t have too much of a thought that what I was doing was serious’.
The Applicant said the courses he undertook in the past have helped him better manage his emotions and interactions with others. He invoked a ‘much closer’ relationship with his mother as a strong protective factor ameliorating his recidivism risk. He also claimed to have a strong bond with siblings living in Perth and Melbourne. The only sibling who lodged a statement in this proceeding is the sister the Applicant lives with in Perth.
When asked if he took any illicit drugs or consumed alcohol since release from immigration detention, the Applicant said he has not used Xanax or ‘weed’ but had ‘a couple of beers while watching the footy’ about a month ago. He also gave evidence that since his release in late 2023, he sought out ‘a mate’ he was ‘incarcerated’ with and with whom he had developed a strong bond. When asked by the Tribunal if he thought this was in his best interests, he responded: ‘No’. When asked if he reported what appeared to be a breach of his BVR conditions, the Applicant invoked his privilege against self-incrimination. In re-examination, Ms Tadros asked the Applicant how many times he has seen this ‘mate’. The Applicant claimed it was only once and because he ‘could get easily influenced, he ‘decided to stay away from them’.
Ms Tadros asked the Applicant about the consequences of further offending. He said if convicted again this would breach his BVR and result in him being imprisoned or detained, which could result in him being ‘deported to Africa’.
Impact of BVR conditions
The Applicant said it was hard for him to move around the community with an ankle monitoring device because he felt ‘all these eyes looking at [him] and [his] family’. His mother’s friends don’t want him associating with their children because they perceive him as a ‘bad influence’. This includes because of his past offending and current ankle monitor.
The Applicant has not previously engaged in remunerative work. Since release on a BVR he has received a special Centrelink benefit of $700 fortnightly that Mercycare helped him organise. He aspires to ‘get a good working job’ but said he has prioritised ‘restoring connections’ with his family and ‘getting [his] mind right’ since release about a year ago. He has not applied for any jobs and believes he would be unsuccessful even if he did. This includes because of BVR conditions and losing his ID some time ago, which he is yet to replace. The Applicant claimed: ‘When the time is right to work, I can work’.
The Applicant said BVR conditions prevent him from taking the minor children in their household to school and play centres. He said an application was made in April 2024 to vary several BVR conditions, but a decision is yet to be made. If he is required to remain on BVR conditions, the Applicant said it would ‘feel like all [his] efforts have gone to waste’, which may cause his mental health to deteriorate. He also feels BVR conditions impede his aspiration to do ‘youth work’ and help others avoid the path he has taken. When asked by Mr Lettenmaier what he has done to advance his youth work aspiration, the Applicant responded: ‘I just haven’t done it yet’.
The Applicant said it is hard for him to attend family prayer sessions at his mother’s house because when his ankle monitor is observed by others, they ask his mother questions. He said prayer sessions are also held at his aunt’s house commencing at 10:30 PM, which he can’t attend because of the BVR curfew condition.
The Applicant was asked about the ‘indefinite onerous conditions’ referred to in documentary submissions on his behalf.[82] When asked if it was a problem for him to comply with several reporting obligations read out to him, including seeking approval to perform work with minors, he responded: ‘No’.
[82] ASFIC (n 1) 10 [44].
Detention and continuing punishment
The Applicant said being in detention made him feel depressed and uncertain about the future. When asked by Ms Tadros if he felt like he was being punished while in immigration detention, the Applicant agreed it felt like ‘extra punishment’. If he was re-detained in future, it would make his family feel ‘bad’.
Relationship with minor children in his life
The Applicant said he enjoys a close and loving relationship with a sibling who is a minor and suffers disability, as well as a minor niece, and nephew. He stated: ‘I feel like a father figure towards them…they need a male role model’. The Applicant was taken by Ms Tadros through periods on his life when he was living with and apart from the children, and how he maintained a relationship with them while in custody. The Applicant gave examples of his interactions when living with the children, which included walks, providing treats, assisting them with getting ready for school, helping with homework, and taking them to visit other relatives. Because his youngest nephew was born while the Applicant was in detention, he said it has taken more time to develop their relationship, but they are now very close.
Consequences of non-revocation and future intentions
During re-examination, Ms Tadros asked the Applicant what he understood the consequence of non-revocation would be. The Applicant said he would remain in the community on a BVR but could be re-detained or perhaps imprisoned if he breached BVR conditions or committed further crimes. When asked by Ms Tadros what he understood his right to a permanent visa is, the Applicant responded: ‘Maybe down the line’. When asked by Ms Tadros what he thought his risk of being re-detained or deported was, the Applicant believes it is ‘high’, which makes him ‘feel uncertain’ and anxious. When asked by Ms Tadros what he considers his prospect of getting a protection visa is, the Applicant said it is ‘negative’ because he has not heard of anyone released on a BVR getting one. When asked by Ms Tadros whether he would be returned to detention if he applied for a protection visa, the Applicant replied: ‘I’m not sure’.
The Applicant referred to his family as his ‘backbone’ and ‘purpose of living’. He will continue residing with his mother, stepfather, sister, and the three minor children in their home irrespective of the decision in this matter. The Applicant wants to continue helping his family, including by eventually buying them a house. He also wants to ‘find a way to speak to the youths and talk to them about [his] experiences’. He currently travels to appointments and to see relatives by Uber and sometimes with the assistance of family members who drive. He wants to restore the ID card he lost, get a licence, and buy a car.
The Applicant claims to currently have a girlfriend who is aware of his criminal offending. There is no statement from her in this proceeding and the Applicant said he chose not to ask her. He also chose not to ask his stepfather to give evidence because of his stepfather’s work commitments.
The Applicant said he is now ready to find employment and referred to skills acquired ‘while incarcerated – woodwork, metalwork, and gardening’. He also wants to undertake vocational training, such as getting a forklift licence, completing a rigger’s course, and renewing his white card for work in the construction industry. He is yet to do progress these aspirations. When asked about references to him already holding a white card, the Applicant said he ‘lost it’ and must re-sit the qualifying test. When asked by Mr Lettenmaier about his plan since 2020 to get a forklift licence,[83] the Applicant claimed he has somewhat progressed this intention by talking to his support workers and telling them of his plans. When asked about the reference in Mr Newton’s report to the Applicant’s claim that he ‘was in the process of gaining his forklift licence’, the Applicant agreed this information was incorrect but said he had no intention to lie or mislead Mr Newton. He had also not told Mr Newton about not being in the right frame of mind yet to apply for jobs, and instead relied on his electronic monitoring bracelet as the only impediment. The Applicant agreed that a forklift licence would improve his employment prospects, but claimed that his uncle, who works in the building industry, told him employment with an ankle monitor would be ‘hard’. There is no evidence from this uncle before the Tribunal.
[83] Exhibit R1, 75 [19], 1226.
The Applicant said he has not applied for any jobs since release from immigration detention in late 2023 because he prioritised re-engagement with his family. When asked by Mr Lettenmaier why he has not done the employment courses he aspired to complete, the Applicant said it has taken him a ‘bit longer than usual’ because he needs his ‘mindset to be straight’. When asked by Mr Lettenmaier if he has sought help from a counsellor or psychologist to assist his mindset since release from detention almost a year ago, the Applicant responded: ‘No I haven’t’. He claimed to have recently seen a general practitioner who referred him to an organisation called ‘Mind Spot’. There is no corroborating expert evidence of this before the Tribunal.
The Applicant said his mother has enquired with some family members about work opportunities and was purportedly told the Applicant should wait until the present case is over. When asked about his sister’s evidence at the last Tribunal hearing that a cousin with a bricklaying business would assist him with employment, the Applicant could not recall this and said no bricklaying job has been pursued. There is no corroborating evidence from any relative able to employ the Applicant.
Prospect of removal from Australia
Ms Tadros asked the Applicant how he and his family would feel if he was deported to South Sudan. The Applicant said he would not be able to ‘get a job there or make a future for [him]self’. He also feared being forced to serve in the Army and, because he is from Australia, raised the prospect of ‘extortion’. In terms of the effect on his family, the Applicant said it would be ‘negative’ but he was ‘not sure how [his] Mum would react’. The Applicant said he would not agree to voluntarily removal. When asked why he has not applied for a protection visa yet despite being eligible to do so, the Applicant responded: ‘I just haven’t made that choice with my family and lawyers’. When asked: ‘So you may apply?’, he responded: ‘Yes’.
Evidence of Mr Patrick Newton
Mr Newton made two amendments to his report dated 10 April 2024. The first was to paragraph 73 [18], by changing ‘low” to read ‘low-moderate’. The second was in relation to a table at paragraph 15 [62], by removing the words ‘if released’ at row R2. He then adopted the report as true and correct. In oral testimony he discussed the additional material considered since producing his report, which did not change his opinion. Mr Newton also discussed the HCR-20 and other actuarial approaches to supplement his clinical opinion. He considered the Applicant’s sexual offending as a violent offence rather than using an adult sexual offending methodology, which he believes would have overestimated the risk.
Mr Newton referred to the challenges encountered by the Applicant since arriving in Australia, including the absence of a paternal role model, competing imperatives confronting his mother at home, and a problematic approach to conflict learned through association with adverse peers. He said the Applicant’s persistent drug use was sufficiently serious to meet the diagnostic criteria for substance abuse disorder for alcohol, benzodiazepines, and cannabis. That said, neither Mr Newton nor the Applicant determined there was a need for support with other psychological issues. On a general level, Mr Newton thought the Applicant’s re-adaptation to society may have benefitted from counselling.
Mr Newton believes the Applicant has made a ‘very good start’ and ‘good progress’ while re-adjusting to society. He said this is nevertheless ‘fragile’ and ‘subject to reversal’. Mr Newton said the Applicant’s release in early 2020 on parole was affected by the way that support was provided during COVID. But the Applicant made ‘persistent efforts to engage in treatment and remained optimistic’. When asked about the rating he had given for H10 relating to past response to treatment, Mr Newton conceded that if there was a score to be changed it would be H10. He observed that the Applicant’s ‘rehabilitation journey has not been a smooth one’ and his compliance was ‘initially very poor’. But even if the score for H10 was changed, this would not alter Mr Newton’s overall opinion.
In terms of the Applicant not having applied for any jobs since release, Mr Newton opined: ‘It would be much better if he had a job…It is disappointing he hasn’t pursued work…It would contain the risk if he had one’. He said the Applicant ‘doesn’t have great adaptable living skills – no trade, profession, or substantial skills’, so a job would give him structure and enhance his self-esteem and sense of security. He said the Applicant told him it was the ankle monitoring bracelet that made finding a job difficult.
Mr Newton said the Applicant’s involvement with prosocial peers, sport, and vocational training is ‘vital’ to help him re-engage with mainstream society. He said this is made more challenging with BVR conditions, which have caused the Applicant frustration and undermined his self-confidence. He said it was not uncommon in these circumstances for people to develop ‘more depressive-like symptoms’. During cross-examination, Mr Newton agreed that prosocial activity such as work and positive societal engagement ‘have a tendency to reduce frustration’.
In terms of the Applicant meeting with a ‘mate’ he was incarcerated with, Mr Newton said this is a ‘key risk factor’ and ‘common pathway into further criminal offending’. When the Applicant’s claim that he subsequently avoided this person was put by Ms Tadros, Mr Newton responded: ‘That’s what I hope he would do’. Mr Newton reiterated the conditional nature of his assessment, requiring the Applicant to remain clear of antisocial peers and abstinent from drugs and alcohol.
When referred to the Applicant’s evidence that he had a couple of beers recently, Mr Newton stated: ‘He should not be drinking alcohol – it elevates the risk. If he continues engaging in social drinking in future, it risks things getting worse’.
Mr Newton observed that as the Applicant has progressed through treatment, he has come to better appreciate the impact of his actions on victims and to build appropriate empathy, which is important to prevent recidivism.
Evidence of Applicant’s sister
The Applicant’s sister, who the Tribunal will refer to as Ms AA, adopted her statement dated 11 April 2024 as true and correct. Her oral testimony focussed predominantly on her relationship with the Applicant, the extent to which he has matured, and his relationship with her two children and other family members. A summary of Ms AA’s evidence follows:
(a)Ms AA said she is a ‘mental health worker’. She and her two minor children live with her mother, stepfather, a disabled sibling, and the Applicant. Ms AA said her mother and stepfather had been together for eight years and ‘he helps a lot’. Ms AA’s former partner is involved in their children’s lives, has informally agreed visitation with them, and pays for their private school fees.
(b)Ms AA has observed that the Applicant has a ‘really tight’ relationship with their disabled sibling and Ms AA’s two minor children. When they first moved to Melbourne in 2018, Ms AA recalled the Applicant assisting with tasks such as dressing the children, packing lunch boxes, and walking them to school or childcare.
(c)Ms AA noticed the Applicant’s association with older boys in Melbourne, which she later realised were part of a negative peer group. She stopped talking to him for a time when he was first arrested, and her children remain unaware of his past crimes or custodial consequences. Her oldest child would be ‘shocked’ if she knew.
(d)Ms AA said her children were very happy to see the Applicant after his release in late 2023. It did take some time, however, for her youngest child to warm up to him, because that child was born while the Applicant was in immigration detention. She said the child now loves the Applicant.
(e)The Applicant currently helps with tasks such as preparing lunches, helping his eldest niece with homework, teaching the youngest child to ride a bike, and other household chores. He also attends some appointments with their mother and disabled sibling. When asked by Ms Tadros if the Applicant plays a parental role, she said he does and is an ‘excellent role model’.
(f)Ms AA believes the Applicant has ‘matured and come a long way’. She said they clashed a lot when younger but now ‘communicate like mature adults’. The Applicant has told her he aspires to get a car. In the meantime, she drives him to appointments when her work commitments allow. Ms AA said the Applicant has involved himself in family functions and events since being released.
(g)Ms AA said the Applicant has told her he wants to study and do vocational courses because he ‘gets bored and wants to do something’. She stated: ‘he’s willing to work’ but agreed he has not yet applied for jobs. Ms AA has tried to assist him by talking with ‘cousins from the mines’, and another who works in a warehouse. She has also previously had discussions with a cousin who is a bricklayer. When asked by Ms Tadros why an ankle monitoring device is a problem for the Applicant, Ms AA said bricklayers ‘have to work from 6:00 AM in the morning’ and the Applicant’s curfew is until 6:00 AM. She also referred to the Applicant not replacing his lost ID as an impediment to work. In response to a question from Mr Lettenmaier, Ms AA said she had not asked her bricklayer cousin if the Applicant could start later than 6:00 AM.
(h)When asked by Ms Tadros if the Applicant is free from any negative influences, Ms AA responded: ‘All the bad people lived in Melbourne – we made him come here to get away from those people’. When asked by Mr Lettenmaier about a cousin called [name redacted], Ms AA said she last saw him in person three months ago and the Applicant ‘sometimes’ associates with this cousin. She is unaware if this cousin was involved in any trouble with the Applicant when they were younger. Ms AA is only aware of one friend that the Applicant has who lives about five minutes from their home. She is unaware if her cousins drink alcohol.
(i)Ms AA was asked by Mr Lettenmaier about the reference in her statement that the Applicant does not drink alcohol. She has not seen him drinking and said their mother is ‘very strict’ about this. Their mother is ‘home all the time’ and would know if the Applicant was consuming alcohol at home. When asked if she would still support the Applicant if he was drinking alcohol, Ms AA said she could not abandon him, but would tell him: ‘Alcohol is no good for you’. Ms AA said she is unaware of the Applicant engaging in any misconduct in custodial settings or engaging with negative influences since his release.
(j)If the Applicant was re-detained or deported, Ms AA said their family would be ‘really sad’ and concerned about his safety.
Evidence of Applicant’s mother
The Applicant’s mother, who the Tribunal will refer to as Ms KA, gave her evidence with the assistance of an interpreter. She adopted her statement dated 12 April 2024 as true and correct. Ms KA’s oral testimony is summarised as follows:
(a)Ms KA recalled extreme violence when war broke out in South Sudan, causing her to flee.
(b)The Applicant was two years old when they arrived in Australia and a ‘good kid’. He helped Ms KA look after other children and perform household chores. Ms KA said the Applicant has a very close relationship with minor children in their household and is a ‘caring person with a good heart’.
(c)Ms KA said the Applicant played up after they moved to Melbourne and met ‘others’, who caused him to ‘not do the right thing like going to school’. She talked to the Applicant, and he promised not to repeat this behaviour, but ultimately ‘didn’t listen’. Ms KA said: ‘when he’s out [of the home] he’s a different person’. She recalled attending youth justice hearings to support him, which caused her to cry.
(d)When the Applicant was released in 2020, Ms KA said she was living in Sydney with her new partner and the Applicant was ‘given a public house’ in Melbourne. They could not visit each other because of COVID restrictions but talked on the telephone. Ms KA has been with her current partner since 2016.
(e)When the Applicant was placed in immigration detention, Ms KA said she felt stressed, worried, and sick. Her disabled daughter cried and said she wanted to be with the Applicant.
(f)Since the Applicant’s release from detention in late 2023, Ms KA said his attitude ‘has changed to positive’. He listens to her and is always home at the right time. Ms KA believes his situation would be improved if BVR conditions are removed, which may allow him to seek night shift jobs. He does not currently have the ‘right document’, which the Tribunal inferred was a reference to the Applicant’s lost ID.
(g)Ms KA said the Applicant helps her with cleaning, cooking, and medical appointments. He also helps Ms AA and the children with tasks like homework.
(h)Ms KA agreed that the Applicant’s troubles while living in Melbourne arose from bad associations and choices ‘outside my house’. When asked if he drank alcohol at her home, Ms KA said she would ‘never allow that to happen’ because the Applicant knows her strict position about this: ‘My cousin was young and drank. I warned [the Applicant] I don’t want anyone to drink in my family. [The Applicant] was clearly aware of my rules’. When asked if the Applicant has stayed out of trouble since release, Ms KA said nothing of this nature had come to her notice. She further stated: ‘If something’s happened outside of my house, then I don’t know’. She is also unaware if he has been in contact with adverse peers.
(i)When asked if the Applicant spent time with a cousin called [name redacted], Ms KA said she does not know a cousin by this name.
(j)If the Applicant was re-detained or deported, Ms KA said she and her disabled daughter would ‘cry and get sick’. She would also be concerned about his safety.
Evidence of Mr Sam Woollard
It is submitted on the Applicant’s behalf that the mandatory cancellation of his visa imposed ‘punishment beyond his criminal sentence which has been severe, disproportionate, and, at times, unlawful’.[186] Reference is also made to the Applicant purportedly suffering ‘extra-judicial punishment’,[187] and that restriction of his ‘right to settle permanently in Australia’,[188] constitutes ‘a serious punishing consequence’ of his crimes.[189] It is further contended that the Applicant:
‘…has served all his sentences and successfully complied with all undertakings. The judicial system of criminal punishment is complete. The fact that [the Applicant] has suffered further severe and disproportionate consequences as a result of executive decisions, much of which constitutes unlawful ‘punishment’ is a clear and compelling reason why the original Decision should be revoked and why it should be treated as a ‘primary consideration’, given significant weight and, in any event, outweigh the countervailing considerations in the evaluation process’
…
In circumstances where [the Applicant] has already served his criminal sentence…it is completely inconsistent with, and would undermine fundamental principles of criminal law if [he] were to continue to suffer the devastating consequences set out above, as a result of another executive decision. It would only serve to further punish [the Applicant]. This is despite the courts making it clear that the statutory purpose of s501CA(4)(b)(ii) cannot be to punish for past offending.[190]
[186] ASFIC (n 1) 7 [30].
[187] Ibid 6 [24], 8 [37]; Applicant’s Reply Submissions (n 94) 27-8 [89]-[92].
[188] ASFIC (n 1) 8 [37].
[189] Citing Guden v The Queen (2010) 28 VR 288 [25]-[27] (‘Guden’).
[190] ASFIC (n 1) 11-12 [49], 21 [90].
The Tribunal is unaware of any legal ‘right to settle permanently in Australia’ accruing to non-citizens. This is a privilege that turns on factors such as the way a non-citizen conducts themselves while living here. Committing persistent crimes and engaging in other misconduct diminishes this opportunity. Moreover, the Act provides for legal, administrative detention of unlawful non-citizens, through powers that are executive in nature and non-punitive.[191] In the Applicant’s case the Act has also provided for his release on a BVR,[192] albeit with reporting and monitoring conditions focussed on protecting the community from the consequences of further offending.[193]
[191] Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333, 343 [29], 357 [88], 358-9 [93]–[94] (Nettle J) (‘Falzon’); Al-Kateb v Godwin (2004) 219 CLR 562, 571 [1] (Gleeson CJ).
[192] TCXM (n 14) [27] citing NZYQ v Minister for Immigration, Citizenship & Multicultural Affairs [2023] HCA 37.
[193] Migration Regulations 1994 (Cth) sub-reg 2.20(12)(b).
In O’Keefe v Calwell, Chief Justice Latham referred to action taken against a convicted immigrant as a measure of protection of the community and not further punishment.[194] In Falzon at [96], Justice Nettle cited previous High Court reasoning[195] in holding that immigration detention is legal, non-punitive, and involves no exercise of judicial power or intention to impose additional punishment.[196] The Applicant’s reliance on Guden does not assist him. Their Honours were considering the possibility of future visa cancellation and deportation in the context of sentencing deliberations, after the non-citizen had completed their sentence. They observed that this prospect could be viewed as a possible ‘punishing consequence’ rather than continuing punishment for the appellant’s crimes. The Court held it could not ‘speculate’ about the course of these future consequences.[197]
[194] O’Keefe v Calwell (1949) 77 CLR 261, 278.
[195] Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at [33].
[196] See also Falzon (n 191) at [48], which referred with approval to Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 610 [74].
[197] Guden (n 189) 295 [28]-[29].
The Applicant has referred to the possibility of being returned to immigration detention or refouled if future circumstances change.[198] For the reasons expressed earlier, the course of future events is unpredictable, and the Tribunal is not required to do so by the Direction. It is clear, however, that the statutory purpose of his detention was ‘not to punish for past offending for which appropriate sentences are determined by the exercise of judicial power’.[199] The Applicant’s claims that ‘mandatory cancellation [of his visa] and past non-revocation decisions’ have resulted in ‘unlawful punishment’[200] are matters for judicial review and not amenable to review by this Tribunal.
[198] ASFIC (n 1) 22 [97].
[199] VNPC v Minister for Immigration (2022) 181 ALD 49, 52 [19].
[200] Applicant’s Reply Submissions (n 94) 27 [90].
A non-revocation decision in the current matter would not constitute continuing punishment for the Applicant’s criminal offending and no weight is placed on this consideration.
Purported inconsistency with Australian laws, values, interests, and obligations under international law
Submissions are advanced on the Applicant’s behalf that he has suffered ‘harsh [and] disproportionate consequences’, including from ‘three decisions that are contrary to law’ and a ‘mandatory sentencing regime [that] undermines the rule of law and the separation of powers and is inconsistent with Australia’s voluntarily assumed international human rights obligations’.[201] This includes a continuing risk of refoulement, arbitrary detention, and regarding the rights of the family. It is submitted that a non-revocation decision would be ‘inconsistent with, and undermine, Australia’s express commitment to comply with international treaties’, and that the Applicant ‘faces consequences that may yet prove to be unlawful (visa conditions and further prolonged detention).[202] Certain articles of the ICCPR are relied upon, which requires the identification of actual arbitrary conduct in terms of his detention or, pursuant to article 7, a subjective intent to inflict cruel, inhuman, or degrading treatment or punishment within the meaning of s 5 of the Act.[203] In respect of the reference to article 9, the Applicant would need to have a court accept that his past arrests and detention in Australia are inconsistent with Australian law. This is not a matter for the Tribunal. Moreover, although Australia is a signatory to the ICCPR,[204] any purported non-compliance with unenacted human rights obligations does not make the Applicant’s treatment under the Act unlawful:[205]
‘As to ground 3 of the notice of appeal, which relies upon the ICCPR in claiming that the appellant’s detention is unlawful, this claim fails to recognise that Australia’s ratification of the ICCPR does not make that instrument part of Australia’s domestic law or a direct source of individual rights and obligations. It is plain that the text of relevant provisions of the Act, in particular ss 189 and 196, are paramount and prevail over Australia’s international obligations in respect of the ICCPR (see, for example, Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; 183 CLR 273 at 286-287 per Mason CJ and Deane J and Polites v Commonwealth [1945] HCA 3; 70 CLR 60)’.[206]
[201] ASFIC (n 1) 22 [97].
[202] Ibid 21 [91]-[99].
[203] SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [26]-[27] (Kiefel CJ, Nettle and Gordon JJ), definitions of “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” in s 5 of the Act. See also, in the specific context of a lack of healthcare services: FJP17 v Minister for Home Affairs [2019] FCA 256 at [33] (Banks-Smith J); Afu v Minister for Home Affairs [2018] FCA 1311 at [58]-[62] (Bromwich J).
[204] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’).
[205] Matson v Attorney-General (Cth) [2021] FCA 161, [135] (White J); Luck v Secretary of Services Australia [2022] FCAFC 195; NRFX v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 300 FCR 582, [165].
[206] CPJ16 v Minister for Home Affairs [2020] FCAFC 212, [68] (Jagot, Griffiths, and SC Derrington JJ). See also Cowgill v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 181 ALD 295, 311 [82], citing Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 286-7 (Mason CJ and Deane J), 301-2 (Toohey J), 304 (Gaudron J), 316 (McHugh J) (‘Teoh’). Rangiah J refers to Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1, in which McHugh and Gummow JJ observed at [101] that the judgments in Teoh had accepted that unenacted international obligations are not mandatory relevant considerations.
For the reasons expressed earlier, the Applicant’s status as a BVR holder, and ability to apply for a protection visa, means that re-detention or refoulement are not direct consequences of a non-revocation decision. It is contended that he nevertheless faces an indefinite risk of re-detention and refoulement, notwithstanding the branches and sequels of future events, such that this would breach Australia’s broader international obligations.[207] Moreover, the Full Court in NRFX held that there is no ‘domestic legal requirement…to take into account Australia’s unenacted international treaty obligations when making a decision’ and, that consistent with the majority’s observations in Plaintiff M1/2021:
‘…the Executive cannot, by compelling Australia’s entry into a treaty, alter the content of Australian domestic law so as to grant rights or impose obligations, such that the law enacted by Parliament is added to, undermined or varied, whether directly or indirectly’.[208]
[207] ASFIC (n 1) 13 [55].
[208] NRFX v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 187, [165], [168] (Collier, Derrington and Downes JJ).
Were the Applicant to be refouled in the future contrary to a finding that non-refoulement obligations are owed to him, negative consequences may arise not only for the Applicant, but also for Australia’s international standing and reputation as a party to the various Conventions, Protocols, Covenants, and other obligations under customary international law.[209] There is no evidence, however, that re-detention or refoulement are foreseeably in prospect, nor that manifests the possibility that Australia’s international commitments won’t be honoured. The Applicant’s submissions rely on events yet to occur and it cannot currently be determined how these might play out or how long they might take.
The Tribunal notes policy assurances in the Direction[210] and extrinsic material for relevant legislation, about how Australia’s non-refoulement obligations would continue to be met. When s 197C was inserted into legislation by the Migration and Maritime Powers Legislation Amendment(Resolving the Asylum Legacy Caseload) Act2014 (Cth), the Explanatory Memorandum (“EM”) referred at [1142] to the following:
‘Australia will continue to meet its non-refoulement obligations through other mechanisms and not through the removal powers in section 198 of the Migration Act. For example, Australia’s non-refoulement obligations will be met through the protection visa application process or the use of the Minister’s personal powers in the Migration Act, including those under sections 46A, 195A or 417 of the Migration Act.’[211]
[210] The Direction (n 22) cl 9.1.2(3).
[211] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) 166 [1142].
In the Statement of Compatibility with Human Rights attached to the EM, a further statement of policy intent is at page 28:
‘Whilst on its face the measure may appear to be inconsistent with non-refoulement obligations under the CAT and the ICCPR, as set out in the overview to this Statement, anyone who is found through visa or ministerial intervention processes to engage Australia’s non-refoulement obligations will not be removed in breach of those obligations. There are a number of personal non compellable powers available for the Minister to allow a visa application or grant a visa where this is in the public interest. The form of administrative arrangements in place to support Australia meeting its non-refoulement obligations is a matter for the Government. This consideration is separate from the duty established by the removal power’.
In BDQ19v Minister for Home Affairs (2019) 167 ALD 38, Kerr J held at [64] that ‘there is nothing’ in the text of the Direction ‘that can be understood to manifest the possibility that those commitments will not be honoured.’ His Honour reasoned at [68]-[70]:
‘To construe the relevant clauses in that way leaves the decision maker to proceed on the basis that the existence of a non-refoulement obligation will not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa even in circumstances where, absent non-compellable Ministerial intervention, that cancellation would necessitate their removal to a country in respect of which a non-refoulement obligation exists. It is a direction to the decision maker to proceed in that manner because Australia ultimately will not refoule such a person.
…the decision maker is simply made aware that for so long as the subject of a visa revocation decision remains owed non-refoulement obligations by Australia he or she will not be removed to a country where those obligations will be violated because Australia will, by other means legally available to it, adhere to its international obligations not to return him or her to that country.
The suggestion of inconsistency conflates the notion of durable settlement with non-refoulement. The international community and Australian refugee policy both give preference to durable solutions. However, the duty not to refoule that Australia has accepted under the conventions cited in cll 10.1, 12.1 and 14.1(1) of Ministerial Direction No 65 does not extend that far. The commitment stated in cl 14.1(2) is no larger than that which Australia has accepted under those conventions: namely, that Australia will not remove a non-citizen to a country in respect of which a non-refoulement obligation exists.’
As Wigney J noted more recently in BHL19[212] at [224];
‘One would have thought that the breach of such obligations was not something that a reasonable Minister of State would take lightly.’
The Tribunal is satisfied that concerns about refoulement are minimised by the Australian Government’s express policy commitment not to do so. Moreover, speculation about a future risk of Australia acting contrary to unenacted treaty obligations, whether relating to refoulement or detention, or any consequential damage to Australia’s reputation, does not constitute a persuasive reason for revocation in the Tribunal’s exercise of the discretionary power conferred by s 501CA(4) of the Act.
The Applicant refers to the intersection of Australian values and international obligations, in support of the contention that he faces ‘a lifetime of instability with an indefinite risk of prolonged detention or deportation to a place where [he fears] serious harm and death’,[213] such that ‘many Australians, including [the Applicant’s] family, friends, teachers and wider community who are aware of all of [his] circumstances, would consider such a decision as supremely unfair’.[214] This submission is again speculative and conditioned by an alternative future, such as it becoming reasonably practicable to remove him and / or his BVR ceasing for reasons that include him reoffending or committing a sufficient breach of BVR conditions. It is frankly not for this Tribunal to independently decide what Australian values or community expectations are, including whether they conform to international norms or obligations. These are matters for politicians and the Parliament. It follows that no weight is placed on this consideration.
[213] ASFIC (n 1) 22 [94].
[214] Ibid [95].
Submissions on the Applicant’s behalf refer to past decisions relating to his visa status offending the rule of law, and that he ‘faces consequence that may yet prove to be unlawful’,[215] such as the mandatory sentencing regime underlying his BVR. This Tribunal’s jurisdiction does not extend to reflecting on the lawfulness or validity of a statute or regulation, which is a matter for courts. No weight is therefore placed on this consideration.
[215] Ibid 22 [97].
Increased risk to the community
Ms Tadros said that the submissions at paragraph 155 of the ASFIC should be considered as a separate consideration under the non-exhaustive list at cl 9.1 of the Direction. This paragraph states:
‘Importantly, the Tribunal should consider that if the Decision is affirmed, it is likely that the instability that [the Applicant] will face will increase the risk to the community. As Dr Newton states, engagement in employment, support to enhance his re-engagement with mainstream society establishing pro-social recreational and social connection reduces his risk. Further, the anxiety he experiences as a result of his compliance obligations has the potential to trigger other more serious psychological and behavioral problems. The evidence before the Tribunal is clear that his visa conditions, including the curfew and ankle monitoring, are inhibiting his ability to meaningfully reintegrate into the community. Accordingly, revoking the cancellation of his visa will better protect the Australian community and could be considered another reason to revoke the cancellation of his visa (outside of clause 8.1 of the Direction)’.
For the reasons expressed earlier, the Tribunal does not accept that an affirmed decision acts to increase the risk to the community. To the contrary, the Tribunal considers that maintenance of BVR conditions in the Applicant’s circumstances acts to ameliorate his recidivism risk. Setting aside the reviewable decision, on the other hand, potentially increases community risk because the Applicant would no longer be obligated to comply with conditions such as a curfew. The risk of him reassociating with adverse peers, relapsing into substance abuse, and committing further offences increases. It is noteworthy he has already sought out a person he was incarcerated with and consumed alcohol while subject to BVR conditions, so the Tribunal has little confidence he would be any more diligent in avoiding these things if no longer subject to BVR conditions. The Tribunal does not accept that the Applicant is inhibited by BVR conditions from meaningfully reintegrating in the community. The evidence discloses he has not yet chosen to advance aspects of his reintegration by applying for work, doing vocational courses, and engaging in a broader range of prosocial activities.
No weight is placed on this consideration.
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, the Applicant does not pass the character test. In determining whether there is ‘another reason’ why the visa cancellation should be revoked, the Tribunal has applied the Direction to the specific circumstances of his case. The Tribunal sees no reason on these facts to depart from the guidance in the Direction to generally give greater weight to the Protection of the Australian community, over the other primary considerations, as the highest priority of the Australian Government.
The Applicant has an extensive criminal history that includes unprovoked violent and sexual crimes, repeated breaches of conditional liberty, and dishonesty. His conduct reflects a persistent disregard for Australian laws and the rights of others, including because of the repeat nature of serious crimes such as home invasions. The enduring impact of his crime on one elderly victim and her family is clear from her Victim Impact Statement.
The Applicant has sexually assaulted a female Youth Justice employee and engaged in other misconduct while detained. This includes diversion of his prescription medication, passing and receiving contraband with other detainees, abusive and aggressive conduct, verbal and physical altercations, and leaving a permitted area during a riot. The Applicant has not been consistently compliant in custodial settings.
There is a persistent trend of seriousness in the Applicant’s conduct over time. He has not been dissuaded by judicial sentences from reoffending or engaging in misconduct while in custody. His offending has been frequent and continued into adulthood. The Australian community would have a low tolerance of such conduct notwithstanding the length of his residence in Australia. He has persistently breached the privilege of being allowed to remain in Australia and the community’s reasonable expectation that non-citizens will abide by the law, respect important institutions, and not engage in conduct that harms others.
A repeat of the Applicant’s violent offending could result in devastating consequences that include death, serious injury, or psychological harm. His crimes involving violence or a sexual dimension fall into a category where even a low probability of repeat is unacceptable. The Applicant tended during the hearing to externalise responsibility to adverse peers and alcohol / drug abuse for past offending yet sought out a ‘mate’ he was imprisoned with and consumed alcohol after release on a BVR. The former conflicts with his BVR obligations and the latter can only increase his recidivism risk according to Mr Newton. If the Applicant is unable to remain consistently compliant with rules in custody or under BVR conditions designed to ameliorate his recidivism risk, the Tribunal’s confidence in his claims about living a law-abiding life without BVR conditions is diminished. The Applicant remains suggestible and prone to bad decisions.
The Tribunal considers the Applicant has unmet needs relating to anger, violence, interpersonal relations, and substance abuse, which he has done little to advance since release a year ago. The evidence of the Applicant’s mother and sister reinforces that it is when the Applicant is away from the home that he acts in a concerningly different way to the son and brother they love.
Mr Newton’s assessment that the Applicant constitutes a low-moderate risk of reoffending is conditional on him avoiding key drivers of his past offending, namely abuse of drugs, alcohol, and associating with adverse peers. Failure to do so increases his recidivism risk to a moderate level. The Tribunal is unpersuaded by the Applicant’s claims that he will avoid past drivers of his criminal behaviour.
Any law-abiding behaviour by the Applicant under strict BVR conditions since November 2023 must be considered in the context of his extensive criminal history, misconduct in custody, and inability refrain from negative associations and alcohol consumption after release. If the Applicant’s evidence is to be accepted, he only became ‘ready’ to make meaningful changes when ‘about to get released’ from immigration detention in November 2023. This is just a year ago, during which he has not meaningfully advanced prosocial aspirations such as vocational training, finding work, and involvement in sport. In that respect, the Tribunal considers that continuation of BVR conditions is important to ameliorate the risk he continues to pose.
The Tribunal accepts the Applicant has a close relationship with his mother, sisters, niece, nephew, and perhaps other family members, although their collective influence has not previously dissuaded him from engaging with adverse peers, abusing substances, and committing serious crimes. He has lived in Australia since he was an infant and what ties he has are here. Irrespective of the Tribunal’s decision in this matter, however, the Applicant can continue living with his family under a BVR.
The legal consequence of a non-revocation decision does not currently encompass the Applicant being re-detained, including if he applied for a protection visa, which he is entitled to do. His release under a BVR reflects an assessment that there is no real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future. He applied to vary some BVR conditions earlier this year, which is yet to be decided. There is no evidence how long the Applicant’s BVR may operate for or when there may be a realistic prospect of his removal becoming practicable, if at all. This necessarily involves determination of his statelessness claim and what the correct country of reference is. The branches and sequels of future events remain uncertain, including because of the options the Applicant may pursue in the event of a non-revocation decision. This could include applying for a protection visa or exercising his appeal rights. The Tribunal has decided to defer assessment of his protection claims.
Although removal of the Applicant to South Sudan, if that is determined to be the country of reference, would likely confront him with threats to his health and safety, this is yet to be established. Removal is not currently in prospect nor a direct consequence of a non-revocation decision. It follows that impediments to removal do not currently arise.
Having weighed the relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the mandatory cancellation of the Applicant’s visa should be revoked. That is because the primary consideration Protection of the Australian community, which is given greater weight that the other primary considerations, coupled with Expectations of the Australian community, considerably outweigh the combined weight to be given to the primary considerations Strength, nature and duration of ties, Best interests of minor children, and any other countervailing considerations.
DECISION
It follows that the Tribunal affirms the reviewable decision.
232. I certify that the preceding two hundred and thirty-one (231) paragraphs are a true copy of the written reasons for the decision herein of Senior Member A. Nikolic AM CSC
................[sgd]........................................................
Associate
Dated: 25 October 2024
Date of hearing: 24-26 September 2024 Counsel for the Applicant:
Solicitors for the Applicant:
Ms Evelyn Tadros
Ms Caitlin Caldwell (Asylum Seeker Resource Centre
Counsel for the Respondent:
Solicitors for the Respondent:
Mr Tom Lettenmaier
Ms Abby Tyagi (Minter Ellison)
- AGLC
- DXJL and Minister for Immigration and Multicultural Affairs [2024] ARTA 18
- Case
- [2024] ARTA 18
- Decision Date
CaseChat Overview and Summary
The primary legal issues in this case revolve around the mandatory cancellation of the Applicant's visa under section 501(3A) of the Migration Act and the subsequent non-revocation decision made by a delegate of the Minister. The Tribunal must consider whether there are other reasons, beyond the failure to pass the good character test, to revoke the visa cancellation. This includes assessing the Applicant's extensive criminal history, his conduct while in custody, and his potential risk to the Australian community. Additionally, the Tribunal must determine if the Applicant's claim of statelessness affects the decision-making process and whether the decision to not revoke the visa cancellation was lawful and reasonable.
The Tribunal examined the Applicant's extensive criminal history, which includes unprovoked violent and sexual crimes, repeated breaches of conditional liberty, and dishonesty. Despite his claims of being influenced by adverse peers and substance abuse, the Tribunal found that the Applicant's conduct reflects a persistent disregard for Australian laws and the rights of others. The Tribunal gave significant weight to the protection of the Australian community, considering the seriousness of the Applicant's crimes and the potential for repeat offending. The Tribunal concluded that the Applicant does not pass the character test due to his criminal history and conduct in custody. Furthermore, the Tribunal found no other reasons to revoke the visa cancellation decision, affirming the Minister's decision.
In light of the above, the Tribunal affirms the decision not to revoke the visa cancellation. The Applicant's visa remains cancelled, and he is subject to the conditions of his Bridging (Removal Pending) Visa. The Tribunal's decision is based on the Applicant's extensive criminal history, persistent disregard for the law, and the potential risk he poses to the Australian community. The Tribunal did not find sufficient grounds to depart from the Minister's decision, upholding the importance of protecting the community from individuals who have repeatedly demonstrated a propensity for serious criminal conduct.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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