DXJL and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) - [2022] AATA 3809

DXJL and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 3809 (24 October 2022)
Division:GENERAL DIVISION
File Number(s): 2022/6261
Re:DXJL
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Senior Member K. Parker
Date:24 October 2022
Date of written reasons: 11 November 2022
Place:Melbourne

The Tribunal affirms the Decision Under Review made on 29 July 2022 to not revoke the mandatory visa cancellation decision of 10 February 2021 in respect of DXJL.
..............................[sgd]..........................................
Senior Member K. Parker
Catchwords
MIGRATION – mandatory cancellation of visa due to criminal offending and serious misconduct – applicant convicted of serious offences including home invasions, theft and possessing methylamphetamine – applicant concedes he does not pass good character test – whether there is another reason to revoke mandatory cancellation decision – applicant likely to face harm and impediments if removed to South Sudan – applicant has strong links to the Australian community – applicant first arrived and has remained in Australia since age 2 – legal consequences of non-revocation – assessment of likelihood of reoffending – primary considerations of protection and expectations of the Australian community outweigh countervailing considerations in favour of revocation of visa cancellation – Decision Under Review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
HZCP v Minister for Immigration & Border Protection [2019] FCAFC 202
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; [2014] FCA 673
Secondary Materials
Fagan A & Western J 2005. Escalation and deceleration of offending behaviours from adolescence to early adulthood. Australia and New Zeal Journal of Criminology 38(1): 59 – 76
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021)
REASONS FOR DECISION
Senior Member K. Parker
11 November 2022
INTRODUCTION

The Applicant, DXJL,[1] seeks review by the General Division of the Administrative Appeals Tribunal (Tribunal) of a decision by a delegate of a Minister administering the Migration Act 1958 (Cth) (the Act), made on 29 July 2022 under s 501CA(4) of the Act that DXJL does not pass the character test (as defined by s 501 of the Act), and the delegate was not satisfied there is another reason why the earlier decision made on 10 February 2021 to cancel DXJL’s Class XB Subclass 202 Global Special Humanitarian visa (Visa) under s 501(3A) of the Act (visa cancellation decision) should be revoked. This decision, made on 29 July 2022, will be referred to as the Decision Under Review.
[1] The full name and date of birth of the Applicant are set out in the Confidential Annexure to these Reasons for Decision. On the first day of the hearing, the Applicant applied for orders to be made under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) for a pseudonym to be used in place of his name, for the reasons stated at the hearing of this application. The Respondent did not oppose this application. The Tribunal granted this application and made orders under s 35. Based on those orders, the pseudonym “DXJL” will be used in place of his name in the Decision and these Reasons for Decision.
DXJL concedes that he does not pass the character test as defined by s 501 of the Act. However, he contends that the Tribunal should be satisfied there is another reason why the decision to cancel his Visa should be revoked. The Respondent contends that the Tribunal should not be so satisfied and should affirm the Decision Under Review.
This application was heard over two days on 19 and 20 October 2022. Both parties were legally represented. At the hearing, Ms Evelyn Tadros of counsel appeared on behalf of DXJL on a pro bono basis and Mr Peter Turner from Minter Ellison appeared on behalf of the Respondent. The provisions of the Act require the Tribunal to make its decision upon review within 84 days from the date of receipt by DXJL of the Decision Under Review. It is not in dispute between the parties that the 84^th day fell on 24 October 2022.[2]
[2] Refer Transcript at P-258 & P259.
On 24 October 2022, the Tribunal handed down its decision to affirm the Decision Under Review. The Tribunal affirmed the Decision Under Review for the reasons set out in these Reasons for Decision.
LEGISLATIVE FRAMEWORK
The Minister must cancel a visa that has been granted to a person under s 501(3A) of the Act in the following circumstances (emphasis added):
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); and
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test is outlined in s 501(6) of the Act and provides that a person does not pass this test if they have a substantial criminal record as defined by s 501(7) of the Act. Relevantly, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
Section 501CA(4)(b) of the Act provides that if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked, the Minister has a power to revoke the visa cancellation decision. Section 501CA is reproduced below:
501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(1)     This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)     For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)      As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)     invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)      The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
If the cancellation decision is not revoked by the Minister, the visa holder may apply to this Tribunal for merits review. This means the Tribunal will consider afresh whether the visa cancellation decision should be revoked and in doing so, may consider any new evidence that has come to light since the time of the Decision Under Review.
ISSUES
DXJL concedes that he does not pass the character test as defined under s 501(6) of the Act. The Tribunal is satisfied that DXJL does not pass the character test prescribed under subsection (a) because he has been sentenced to a term of imprisonment of 12 months or more, and therefore has a “substantial criminal record” as defined under s 501(7) of the Act.
Accordingly, the remaining and only issue for the Tribunal to decide in this application is whether there is another reason why the visa cancellation decision should be revoked under s 501CA(4) of the Act.
In making this decision, the Tribunal has considered and applied Direction No 90 issued on 15 April 2021 by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth) entitled “Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 90). The Tribunal has also read, identified below, understood, and evaluated the representations made by DXJL or on his behalf, both before and at the hearing. In deciding whether there is another reason why the visa cancellation decision should be revoked, the Tribunal has made findings of fact, made predictions about the future, and assessed or characterised his past offending as outlined below in these Reasons for Decision.
At the hearing, DXJL gave oral evidence and called the following further witnesses to give evidence in support of his application (and each of them lodged documentary statements/reports prepared by them ahead of the hearing):
(a)Mr SW, DJCS Youth Justice Advanced Case Manager of DXJL;
(b)Ms JM and Mr MJE, Teachers of DXJL at Parkville College;
(c)DXJL’s mother;
(d)Sister A; and
(e)Ms SW, Academic, to give expert evidence.
The Respondent did not call any witnesses at the hearing.
BACKGROUND
Family history
On 9 March 2005, DXJL arrived in Australia at Perth under the Visa accompanied by his mother, two of his older sisters (Sister A, born in 1994, and Sister E, born in 1999), and his older brother, Brother M, born in 2000.[3] DXJL was aged 2 at this time.
[3] This visa was granted on 2 November 2004 as referred to in a letter by the Department of Home Affairs dated 10 February 2021 – refer G-Documents G19/134. Refer also G22/159.
DXJL’s mother made a Statutory Declaration on 14 October 2022 stating that she was born in 1969 in a town in South Sudan, which the Tribunal will refer to as Town A.[4] DXJL’s mother stated that she was displaced in 1984 due to Sudan’s civil war outbreak in the South, and fled Town A on foot to a refugee/training camp in Panyindu, Ethiopia.[5] DXJL’s mother states that she met DXJL’s father in this refugee camp and married him in 1986.[6] She states that shortly after their marriage, DXJL’s father was killed as Sudan’s civil war spilt over into Ethiopia and their refugee camp.[7] DXJL’s mother states that in 1991 a civil war broke out in Ethiopia, and she fled and resettled in a refugee camp in Kenya.[8] She states that shortly following her arrival, “[DXJL]’s father’s” younger brother took over her family home and “fathered” all of her children in accordance with their traditional customs.[9] She states that customary law has the legal effect that she is still married to her deceased husband and all children “fathered by” her deceased husband’s brother “remain legally his” (that is, her deceased husband’s) and they carry his surname.[10]
[4] The name of this town is set out in the Confidential Annexure.
[5] Refer DXJL’s mother’s Statutory Declaration at paragraph [3].
[6] Ibid at paragraph [4].
[7] Ibid at paragraph [5].
[8] Ibid at paragraph [6].
[9] Ibid at paragraph [7].
[10] Ibid at paragraph [8].
DXJL stated in her Statutory Declaration that she had her first child in 1994 (that is, Sister A) and her second child in 1999 (that is, Sister E).[11] She states that she had a boy in 2000, Brother M, who she stated resides in Melbourne and works as a construction worker.[12] She states that she gave birth to DXJL in 2002 and her “last-born” (Sister At) who was born on 2010.[13]
[11] Ibid at paragraphs [9] and [10].
[12] Ibid at paragraph [11].
[13] Ibid at paragraph [12]. Sister At was born to a different father from DXJL’s biological father.
The documentary evidence before the Tribunal referred to DXJL’s mother having more children than she mentioned in her Statutory Declaration. Specifically, in the official transcript of the Magistrates’ Court criminal proceeding on 27 October 2020, the Tribunal notes that DXJL’s counsel at that time informed the Magistrate that DXJL was the youngest of seven children born to his mother and father.[14] In a Magistrate’s Pre-Sentence Report dated 22 March 2018,[15] DXJL was described as being the seventh of eight children, born to the unification of his biological parents. But the same report also states that DXJL’s parents married and gave birth to him and six older siblings.[16] Further reference is made in this report to DXJL having three siblings whose addresses are given as “Africa, Sudan”.
[14] Refer G-Documents G7/68.
[15] Refer SG-Documents S8/246.
[16] Refer S8/246.
The Tribunal notes the first “brother” listed in this report has the same name as DXJL’s deceased husband’s brother who, according to DXJL’s mother’s Statutory Declaration, is DXJL’s biological father. There is one other brother and one sister listed on this form that were not expressly referred to by DXJL or his mother as they gave evidence in this proceeding.[17] They may be other children of DXJL’s biological father. Neither party was questioned about those additional listed siblings at the hearing, so the Tribunal will disregard them when making this decision. DXJL’s mother’s evidence in her Statutory Declaration is that her entire family are “here”, which is taken to mean Australia. This was unchallenged by the Respondent at the hearing, and the Tribunal finds accordingly for the purpose of making this decision.[18]
[17] Refer S8/245 where the names are mentioned in the table headed “Family Constellation”.
[18] Refer DXJL’s Statutory Declaration at paragraph [33].
DXJL’s “Movement History” statement issued by the Department of Home Affairs on 8 October 2020, records that DXJL’s “Country of Birth” is Kenya, consistent with DXJL’s mother’s Statutory Declaration.[19]
[19] Refer G18/133.
There are inconsistencies in the evidence as to when and how DXJL’s father died, however, this may be a reflection of DXJL’s biological father being the brother of the person who DXJL and his mother acknowledge as being DXJL’s father according to customary law as asserted by DXJL’s mother. The County Court’s Pre-Sentence Report[20] and Reasons for Sentence of 12 November 2019[21] refer to DXJL’s father having died in 2016. This may be a reference to DXJL’s biological father because DXJL’s mother states that the person who they regard as being DXJL’s father died “shortly after they were married” which was in 1986, and that his brother fathered her children. While it is useful to obtain an accurate background to consider DXJL’s claim that he was influenced by others and led into offending because he did not have a “father figure” in his life, ultimately, the Tribunal’s decision did not turn on who exactly was DXJL’s father, when he died or how he died (whether it was by heart attack or during conflict while he was in the army). The Tribunal accepts that DXJL was not raised by his biological father, or his brother, being the person, they regard as DXJL’s father based on customary law. Instead, he was raised by his loving mother, alongside his older sisters (the eldest being about 8 years older than DXJL) and older brother. When he came to Melbourne, he also had the additional support of his mother’s great aunt and cousins.
[20] S9/255.
[21] G8/88.
DXJL’s younger half-sister, Sister At, is aged approximately 12 and has Down Syndrome. At the hearing, DXJL’s mother gave evidence that Sister At is a participant of the National Disability Insurance Scheme (NDIS) and receives disability-related supports, including assistance provided by external support workers twice per week.[22] DXJL’s mother told the Tribunal that the support workers take Sister At to speech therapy and physiotherapy because DXJL’s mother does not drive.[23] When asked at the hearing, DXJL gave evidence that he is not aware of the supports Sister At currently receives under the NDIS.[24]
[22] Refer Transcript at P-236. There is a further reference to Sister At being 6 years old as of March 2018 which would make her 10 or 11 now – see SG Documents at page 24. However, nothing turns on this discrepancy.
[23] Refer Transcript at P-236.
[24] Refer Transcript at P-76.
DXJL’s mother states in her Statutory Declaration that in 2014, she relocated to Melbourne with her children, including DXJL, because her great aunt lived there with her children, and DXJL’s mother considered that she would be able to assist her to care for Sister At.[25] At first, DXJL’s other siblings remained in Western Australia but subsequently, Sister A (and Sister A’s daughter) and Brother M also moved to Melbourne. Sister At and her daughter later moved back to Western Australia as she indicated to the Tribunal at the hearing that she got tired of living in Melbourne and Perth is her home.[26]
[25] Refer DXJL’s mother Statutory Declaration at [20] and Transcript at P-234.
[26] Refer DXJL’s Statutory Declaration on page 1 and Transcript at P-249.
DXJL’s mother stated that in 2014, she had stayed in Suburb SA and then rented privately in Suburb S. She states that in 2015, she had rented privately in Suburb K at which time DXJL started playing for a particular basketball club in Suburb K. He then started to play for a different basketball club in Suburb S. DXYL’s mother described this club as being “made up of people from South Sudan”. She states in her Statutory Declaration, “This is where DXJL started to associate with the wrong peers and his offending began. He would leave home to go to Basketball (sic) and then not come back home until early hours of the morning”.[27]
[27] Refer DXJL’s mother Statutory Declaration at paragraph [23].
At the hearing, DXJL’s mother confirmed that she moved to Sydney in 2018 after DXJL was sentenced to Youth Detention. She said that her daughters had moved out of her home in Melbourne, and she remained living there with Sister At but could not afford to pay the rent. She said she had relatives in Sydney.[28]
[28] Refer Transcript at P-235.
DXJL’s mother said she continued to visit DXJL Melbourne and at the Malmsbury Youth Justice Centre (YJC).[29] DXJL’s mother states that when he was paroled, she had asked for him to be brought to Sydney or whether she could relocate to Melbourne to assist him to transition back into the community coupled “by the need to look after [Sister At]”. She states that she was advised that DXJL could not relocate and that he would be provided with Government housing.[30]
[29] Refer DXJL’s mother Statutory Declaration at paragraph [24].
[30] Ibid at paragraph [25].
DXJL’s mother stated that within a month of living on his own, DXJL had breached his parole whilst living in Government housing and was remanded into custody. She states that DXJL had a curfew as part of his parole conditions and that he breached this condition.[31]
[31] Ibid at paragraph [26].
At the hearing, DXJL’s mother said she moved back to Western Australia in July 2022.[32]
[32] Refer Transcript at P-235.
History of criminal offending
The National Criminal History Check issued by the Australian Criminal Intelligence Commission on 17 December 2020 (National Criminal Record) shows that DXJL has a significant history of criminal offending in Victoria. The offences listed are outlined in further detail below under the heading “Nature and seriousness of the conduct”.[33] In summary, DXJL’s criminal offending has included:
(a)an early history of home invasions, theft and aggravated burglary, dating back to 2017;
(b)in November 2017, an incident of aggravated home invasion, stealing a car and use of an offensive weapon to intimidate a family sleeping in their home;
(c)theft of a motor vehicle;
(d)assault and one incident of sexual assault; and
(e)possession of methylamphetamine (Ice).
[33] Refer G6/51.

Following DXJL’s arrest in late-2018, he was placed in detention at a YJC. Initially, DXJL was at the Parkville YJC. Reports refer to several assaults taking place involving DXJL and other inmates, or occasionally, with staff as reflected by the convictions entered against him on the National Criminal Record.[34] This has been attributed to DXJL being unsettled and moving between units within the Parkville YJC. The reports indicate that once DXJL moved to the Oakview unit at Parkville YJC, his behaviour improved and was described as being “positive”.[35]
[34] Refer G8/91.
[35] Refer G8/92.
On 10 September 2019, the Applicant was transferred to Malmsbury YJC. The reports indicate that he made progress there and undertook study of VCAL subjects.[36] A Pre-Sentence Report issued on 7 November 2019 records that DXJL was encouraging his peers to attend classes.[37] It was also reported that DXJL had not caused any incidents despite lockdowns, staff shortages, and being confined to his room for long periods.[38]
[36] Refer G8/91 & 93.
[37] Refer G8/92.
[38] Refer G8/93.
DXJL was released on parole on 18 May 2020.[39] Subsequently, in August 2020, DXJL’s parole was cancelled following his arrest for committing further criminal offences in 2020 as detailed in further detail below.[40] DXJL was aged 18 when committing each of these further offences.
[39] Refer Letter of Support of Mr SW dated 12 October 2022.
[40] Refer Transcript at P-111.
Specifically, on 27 October 2020, DXJL was convicted in the Melbourne Magistrates’ Court of four offences including “theft of a motor vehicle”, “theft”, “possess methylamphetamine” and “deal with property suspected of proceed of crime”. The Court dealt with those convictions by way of an adjourned undertaking, which is due to expire on 31 October 2023. This was subject to a condition that, upon proven breach of the undertaking, the matter would be returned to the same Magistrate to be dealt with by him.[41] The Magistrate stated in his sentencing remarks (emphasis added):[42]
…he’ll then come back to me for these and I will then be in a position to gaol him, and maybe take – well, not maybe, take into account the 57 days of PSD but impose a gaol sentence more appropriate to this offending. And in those circumstances it serves, for want of a better description, as an additional incentive for him to comply with his youth parole. Now it’s unusual to consider such a disposition for this kind of offending for somebody with albeit his Children’s Court prior history.
But it’s complicated by the fact of his ongoing County Court imposed detention in youth detention, coupled with the intervention of the Youth Parole Board and unless something has happened during the COVID time that I don’t know about, the judge that heads up that parole board is a man I’ve known for, dare I admit it, over 40 years and I have complete trust in what Judge Bourke’s decision might be in determining whether to let him go on further parole or not, and what supports are put in place. And if he does get the parole and he does breach, and after the parole expires still breaches between the end of November of 2022 and the end of October of 2023 then he deals with me.
[41] Refer G7/74.
[42] Refer G7/74 & 75.
As mentioned above, the visa cancellation decision was made on 10 February 2021. On 21 June 2021, DXJL was released from Malmsbury YJC on parole and taken to Melbourne Immigration Transit Accommodation (MITA).[43] DXJL was cited in a number of incident reports while he was in detention at MITA. The Tribunal will one of them following a admission made by DXJL at the hearing in relation to his conduct during one of those incidents whilst in detention. The Tribunal has decided to disregard the remainder of the reported incidents on account of DXJL denying them at the hearing, but many of the accounts of those events given in those reports, did not conclusively implicate DXJL in the reported misconduct.
[43] Refer G16/125.
It is not for the Tribunal to impugn the convictions on which the visa was cancelled.[44] The Tribunal finds that DXJL committed each of the offences for which he has been convicted as set out in his National Criminal Record. However, DXJL was provided with an opportunity leading up to and at the hearing to explain the context of his criminal offending to the Tribunal.
[44] Refer HZCP v Minister for Immigration & Border Protection [2019] FCAFC 202 at [77].
History of visa cancellation and the process that followed
Notice of the visa cancellation decision[45] was hand-delivered to DXJL by a Corrective Services Officer on 11 February 2021.[46]
[45] Refer G19/134.
[46] Refer G20/141.
On 16 February 2021, a request for revocation of the cancellation of the Visa was made on DXJL’s behalf.[47] DXJL stated on the request for revocation form that his reasons for revocation were as follows:[48]
My reasons is because I’m not a bad person. I’ve done some bad things but I have matured a lot I’m not that person anymore. I see myself as an Australian my whole life has been in australia since I was 3. I love this place a lot I believe that I’m going to do great for alot of people. My family needs me here I don’t have family back in Africa and the place I came from is war torn there’s no jobs nothing there I wouldn’t be able to make a living. I’m a smart young Australian man that has done some mistakes but has change and matured
[47] Refer G21/142.
[48] Refer G21/146.
On 17 February 2021, a second request for revocation was completed by DXJL and signed by him. It included additional reasons for revocation including that DXJL was “very remorseful”, that he has “a disabled little sister”, that he has a niece and nephew and that “[their] life has been around me I helped raise them”. DXJL referred to his mother as being old (she was 53 years old at that time), was sick and that her losing him would make things worse. He stated on this second request form that with no jobs or family in Africa, it would be impossible for him to make a living. He referred to having completed some programs and that it had helped him mentally. He stated on this form that he was a “smart, kind-hearted boy”, who had “made some mistakes”. He said he knew he had “hurt some people”, but “thats (sic) not [him] anymore”.[49]
[49] Refer G21/151.
On about 16 February 2022, DXJL engaged Ajak & Associates to represent him and to act as his authorised agent.[50]
[50] Refer G22/153 & 154.
On 2 March 2022, Ajak & Associates, on behalf of DXJL, lodged a personal circumstances form (signed by the Applicant on 17 February 2022) (PC Form). When prompted to list all “other” minor children in DXJL’s life (that is, other than his own), he listed two minors, being his niece born in 2011 and his nephew born in 2019.[51] He described himself as being like a “father figure” to his niece when she was in Victoria and that he was at home with her “almost every day”. He also referred to his “little sister” having Down Syndrome.[52]
[51] Refer G22/163.
[52] Refer G22/164.
On the PC Form, DXJL stated his intention to move back to Western Australia because “I’m going to be with my family again and so I can help my mother and family and because in WA I had no criminal record”.[53]
[53] Refer G22/165.
EVIDENCE & SUBMISSIONS
The Tribunal received the following documents into evidence in this proceeding:
(a)a set of documents lodged by the Respondent under s 501G of the Act (G-Documents);[54]
(b)a set of supplementary documents lodged by the Respondent under s 38AA of the Administrative Appeals Tribunal Act 1975 (SG-Documents);[55]
(c)DFAT Country Information Report South Sudan dated 5 October 2016;[56]
(d)DXJL’s Further Bunder of Documents (pages 1 to 28) (DXJL’s Hearing Bundle);[57]
(e)DXJL’s Bundle of Country Information (DXJL’s Country Information Bundle);[58] and
(f)highlighted version of expert report prepared by Ms SW, Academic (Ms William’s Report).[59]
[54] Refer Exhibit R1.
[55] Refer Exhibit R2.
[56] Refer Exhibit A1.
[57] Refer Exhibit A2.
[58] Refer Exhibit A3.
[59] Refer Exhibit A4.
Both parties lodged their respective statement of facts, issues, and contentions (SFIC) and DXJL lodged reply submissions to the Respondent’s SFIC ahead of the hearing and made oral closing submissions at the conclusion of the hearing.
DIRECTION 90
Section 499(2A) of the Act requires the Tribunal (on review) to comply with a direction made under s 499. Direction 90 was made under s 499 and its purpose is to guide decision-makers to perform their functions or when they are exercising powers under s 501 and s 501CA of the Act.
The primary considerations the Tribunal must take into account include:[60]
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the best interests of minor children in Australia;
(d)expectations of the Australian community.
[60] Refer Direction 90 at paragraph 8.
The Tribunal must also take into account “other considerations”:[61]
(a)international non-refoulement obligations;
(b)extent of impediments if removed from Australia;
(c)impact on the victims of the person seeking revocation of the visa cancellation decision; and
(d)their links to the Australian community including the strength, nature, and duration of their ties to Australia and the impact on Australian business interests.
[61] Direction 90 at paragraph 9.
Generally, “primary considerations” should be given greater weight than “other considerations”. However, it is open to the Tribunal to decide, in the circumstances of an individual case, that it is warranted to afford any or all of the “other circumstances” of the person, equal or more weight than any or all of the “primary considerations”.
Direction 90, at paragraph 5.2, also sets out some broad guiding principles to be applied when applying Direction 90 when making a decision whether there is another reason why a person’s visa cancellation decision should be revoked. Those principles are reproduced below:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
CONSIDERATION
Primary considerations
Protection of the Australian community
Direction 90, at paragraph 8.1(1), provides that decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. It also refers to the principle that entering and remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals in the Australian community.
Direction 90, at paragraph 8.1(2), requires the Tribunal to give consideration to:
(a)the nature and seriousness of DXJL’s conduct to date; and
(b)the risk to the Australian community, should DXJL commit further offences or engage in other serious conduct.
Nature and seriousness of DXJL’s conduct to date (in chronological order)
Early criminal history of multiple offences dating back to 2017 - DXJL’s first court outcome listed on his National Criminal Record is on 8 November 2017. At this time DXJL was aged 15.[62] Multiple offences are listed in DXJL’s National Criminal Record on 8 November 2017, including: “theft of a motor vehicle”, “unlicensed driving”, “robbery”, “armed robbery”, “false imprisonment (common law)”, “theft”, “attempted robbery”, “committing indictable offence whilst on bail”, “aggravated home invasion (steal) – offensive weapon”, “aggravated burglary – person present” and “resist police officer”. Without conviction, DXJL was released on a Youth Supervision Order on 31 December 2018 (Youth Supervision Order).
[62] The records show that DXJL was first charged with criminal offences when he was 14 years old, but the Tribunal has decided not to take any earlier undocumented offending by DXJL into account.
DXJL’s second court outcome listed on his National Criminal Record is dated 17 January 2018 when he was also aged 15. The offences listed include “assault in company” and “theft-from shop (shopsteal)”. Without conviction, DXJL was placed on probation for a period of three months to 16 April 2018, subject to probation conditions.
The Tribunal notes that the placement of DXJL under a Youth Supervision Order was the first chance given to DXJL for him to reflect upon his conduct and to seek to reform his ways.
On 21 May 2018, DXJL subsequently breached the Youth Supervision Order. This resulted in the Youth Supervision Order being cancelled and convictions were entered against DXJL for the offending referred to above, and for breaching the probation conditions.[63] As a consequence, DXJL was sentenced to a period of Youth Justice detention. Specifically, in relation to offences of “AGG HOME INVASION (STEAL)-OFFENSIVE WEAPON” on 21 May 2018, he was sentenced to detention for 14 months in a YJC.[64]
[63] Refer G6/52 & 53.
[64] Refer G6/52.
DXJL’s National Criminal Record lists further offences on 21 May 2018, specifically:
(a)“Home Invasion (Steal) – Person” for which DXJL was sentenced to 12 months detention in a YJC (with “6 months of sentence concurrent”);[65]
(b)“Theft of a motor vehicle” for which DXJL was sentenced to 6 months of detention in YJC (concurrent);[66] and
(c)“Theft” for which DXJL was sentenced to 3 months of detention in YJC (concurrent).
[65] Refer G6/53.
[66] Refer G6/53.
The Tribunal notes that DXJL responded to the first chance he was given for reflection and reform as referred to in paragraph [53] above, by committing the three serious offences referred to in the above paragraph.
Sexual assault involving staff member at YJC - On 8 June 2018, while in detention at Malmsbury YJC, DXJL committed an offence of sexual assault against a female staff member. On 8 October 2018, he was convicted by a Magistrate at the Children’s Court of Victoria at Castlemaine and ordered to be detained in a YJC for a period of one month.[67] In a risk assessment report the conduct by DXJL was described as follows:[68]
…two boys were play fighting on the unit where the victim went to break up the fight and DXJL ran his fingers between her legs and over her genital region. DXJL denied having any feelings of sexual arousal prior to or during the incident and stated that he was not attracted to the female, but he could see the potential impact his actions may have caused. The treatment discharge summary by [name omitted] (2019) stated that DXJL actively engaged in relevant discussions about his offending and associated risk factors, where his order subsequently expired in November 2018. His treatment outcomes were therefore met and was no longer required to engage in the MAPPS[69] program.
[67] Refer G11/102 & G6/52.
[68] Refer G11/103.
[69] Male Adolescent Program for Positive Sexuality (MAPPS) Program.
At the hearing, DXJL agreed that he had engaged in this conduct, and he also accepted that it was serious conduct.[70] He told the Tribunal he had not taken any substances at the time of this offence. The Tribunal notes the following exchange at the hearing with DXJL when seeking to gain further information about the sexual assault:[71]
[70] Refer Transcript at P-40.
[71] Refer Transcript at P-41.
TRIBUNAL: So do you remember how old you were when you did this?
DXJL: I think I was 16 or - 16.
TRIBUNAL: Sixteen?
DXJL: Yeah.
TRIBUNAL: And do you remember why you did that?
DXJL: At that - that - I was just being egged on, and - - -
TRIBUNAL: By who?
DXJL: By the other detainees in the precinct.
TRIBUNAL: And what were they saying to you to egg you on?
DXJL: They were just - - -
TRIBUNAL: Were they telling you to do - - -?
DXJL: Just - just smack her bum, and stuff. Yeah. They were just egging me on. I didn’t have any sort of feelings toward her, there was no motive behind it. I just got peer pressured to - from my end and - yeah.
TRIBUNAL: And did something trigger that incident or did it - it’s something that you’d been egged on?
DXJL: Yeah, I was just being egged on with the boys. I - you know? And yeah.
TRIBUNAL: Right. And what do you say about having engaged in that conduct?
DXJL: Yeah, I wish I never did it, because in my household I have a lot of sisters, and I wouldn’t like that to happen to them, you know? So I understood where the lady - where the female was coming from and understood my part of it, and I should not, yeah, done it.
TRIBUNAL: And so having done this, at a time when you say you weren’t affected by any drugs or alcohol; is that correct? So does that say something about your ability to be able to control what you do?
DXJL: Now I have better control because I believe I have matured, and now I’ll - I think about my - the consequences that if I do the actual actions, or - yeah. Now I’m more aware of myself and my surroundings, and yeah, I’ve matured than what I used to be.
Assaults whilst in detention at YJC - On 4 July 2018, DXJL was convicted of the following offences, “unlawful assault”, “assault in company”, and the offence of “affray” dated 13 August 2018, for which he was sentenced to further shorter periods of detention in the YJC between 14 days’ and one month’s duration.[72]
[72] Refer G6/52.
Subsequently, DXJL was released on parole. The Tribunal notes that this was the second chance provided to DXJL to reflect upon his criminal offending and to reform his ways. Despite this second chance given to DXJL, his criminal offending resumed shortly thereafter.
2018 Aggravated Home Invasion - On 17 November 2018, DXJL committed what can only be described as a horrific and gravely serious offence, in the company of five other offenders. He was aged 16 at the time. It involved an aggravated home invasion of a home occupied by a family comprising an 80-year-old man, 56-year-old woman and their 27-year-old daughter who has a disability (resulting from her condition of Down Syndrome). The Tribunal will refer to this incident as the Aggravated Home Invasion.

The Aggravated Home Invasion took place at 5.39am and the occupants of the home were sleeping. DXJL, and those with him, broke into the garage of their home and secured assorted garden tools, including a sledgehammer and garden shears to use as weapons during the invasion.[73]
[73] Refer G8/86.
The sledgehammer was used to smash the back door of the house, following which DXJL and two of the other co-offenders entered the home. Whilst in possession of the gardening implements, they yelled at the occupants of the home, made threats to kill and demanded the occupants give them the keys to their car. The keys were given to the offenders, and all of the offenders, including DXJL, drove off in the car.[74] The occupants were understandably traumatised by this incident, and the 56-year-old woman subsequently reported that she had suffered serious psychological harm, including the development of post-traumatic stress disorder.[75]
[74] Refer G8/86 & 87.
[75] Refer G8/90.
DXJL became aware, during the invasion, that the home was occupied by an elderly man, a senior woman, and a young woman with a disability which the same is his DXJL’s half-sister’s disability.[76] Upon becoming aware of who occupied the house, DXJL did not leave the premises immediately or seek to influence his co-offenders to leave. Instead, with the others, he and the co-offenders stole the occupants’ car and left the premises. DXJL said at the hearing he had been drinking and smoking cannabis at a party before this incident. The Tribunal notes a different account was given as to the context of this offending in the Clinical Tier 2 Assessment Report issued by Mr MD dated 15 February 2020 stating the DXJL had said that he and his peers were "stranded at the train station" and looking to steal a car as a means to get home.[77] Even if DXJL was under the influence from the consumption of alcohol and cannabis at the time of the home invasion, the Tribunal notes that he remained conscious and capable of making decisions and performing a complex set of actions required to steal a car by breaking into someone’s family home, terrorising and threatening the occupants, until they gave him and other co-offenders their car keys.
[76] Refer Transcript at P-29.
[77] Refer SG1/7.
In the cold light of day, that is, the following morning or indeed on any one of the 12 days to follow (before he was arrested), DXJL did not turn himself into the Police to confess his crime. Instead, he was arrested on 28 November 2018 after having been identified by video footage from a camera at a neighbouring property to the victim’s home and placed on remand at the Parkville YJC.[78] The Tribunal notes that when questioned by Police about this incident, he elected not to make a record of interview demonstrating a lack of remorse or indicating that during those 12 days there was no desire on DXJL’s part of wanting to right his wrongful conduct, even though there was plenty of time for him to reflect upon his criminal offending.
[78] Refer G8/87.
Upon being charged, the Tribunal acknowledges that DXJL pled guilty at a reasonably early stage which obviated the need for a contested criminal proceeding. However, the Tribunal also notes that DXJL received a significant sentencing benefit by doing so – see the last sentence of paragraph [70] below. He was convicted with the following extremely serious offence:
Aggravated Home Invasion (Steal) – Offensive Weapon
On account of the type of charge laid against DXJL, the President of the Children’s Court decided not to hear the matter in the Children’s Court. Instead, it was decided it would be heard in the County Court of Australia. As such and despite being a minor at that time, DXJL was liable to be sentenced as an adult and potentially to be sentenced to imprisonment in an adult gaol, unless he could show “exceptional circumstances”. Prosecution conceded that exceptional circumstances existed in DXJL’s case, and the County Court judge decided to sentence DXJL to detention in a YJC, rather than in an adult prison.[79]
[79] Refer G8/93 & 94.
When sentencing DXJL, the County Court judge observed as follows in her sentencing remarks on 12 November 2019 (emphasis added):
“since 2017 you have been dealt with by the Children’s Court for offences such as robbery and armed robbery. It is most concerning that this is the third time you have been dealt with for home invasion type offending”.[80]
[80] Refer G8/88.
The County Court judge remarked that DXJL’s offending was “very violent and had a terrible impact on the persons in that house”.[81] The County Court judge reached a state of satisfaction that DXJL’s progress in Youth Justice, the education he had undertaken and the personal transformation he had taken were such that she regarded his prospects of rehabilitation as being “reasonably positive”.[82] This was the reason why she dealt with DXJL by ordering youth justice detention rather than sending him to an adult goal. However, the judge sentenced DXJL to the maximum penalty of four years, because of his serious criminal history and his previous offending.[83]
[81] Refer G8/89.
[82] Refer G8/94.
[83] Refer G8/96 & 97.
DXJL was informed during the County Court hearing that DXJL may be released before the end of the four-year term on a parole-like system which is what in fact transpired. By the time he was released on parole, that is, 18 May 2020, DXJL’s mother had relocated to Sydney as mentioned above.
In her Honour’s sentencing remarks on 12 November 2019, the County Court judge, gave DXJL a stern warning about his criminal offending involving the home invasion on 17 November 2018. The judge warned DXJL that if he reoffended, he would come back before an adult court, and they would deal with him more harshly. Her Honour warned him to be careful to look after himself in the next few years and told him that he could end up in adult gaol, and that this would be disastrous for him. These warnings are reproduced at paragraph [111]. The judge also remarked that if DXJL had not pled guilty, her Honour would have sentenced him to four years gaol in an adult prison, with a minimum term of two years.[84]
[84] Refer G8/98.
The Tribunal notes that upon DXJL’s release from parole on this occasion, this was the third chance that DXJL had to reflect upon his criminal offending and to reform his ways. The County Court judge’s assessment of DJXL’s prospects of rehabilitation did not prove to be correct. He did not rehabilitate and resumed his criminal offending by committing further criminal offences on four separate instances over a relatively short period spanning from 10 June 2020 and 16 August 2020, as outlined in further detail below. As mentioned above, DXJL was no longer a minor, being 18 years of age, at the time of this further spate of criminal offending.
Further convictions for four offences in 2020 including the possession of 17g of Ice – On 10 July 2020, the Police approached DXJL who was found on Smith St, Fitzroy, Victoria, to question him about whether he had a lawful reason for being outside during COVID-19 restrictions. Upon questioning, the Police realised that DXJL was wanted for another alleged offence and they arrested him. The Police searched DXJL and found him in possession of 17g of Ice, together with 87 Ziploc bags, in a “bum bag” he was wearing.
DXJL was charged with various offences including trafficking of Ice. This charge was later withdrawn after DXJL pled guilty (at the Magistrates’ Court hearing on 27 October 2020),[85] to the following four offences:
[85] Refer G7/65 & 66.
(a)“Possess methylamphetamine” arising from the incident on 10 July 2022 referred to in the above paragraph. In the Magistrates’ Court proceeding, the informant’s summary provided to the Magistrate stated as follows (emphasis added), “The accused stated he kept the white powder (indistinct) so that he could look at it or give it to other people”.[86] At the hearing, DXJL denied having any intention of provide the Ice to other people or to sell it. The Tribunal does not accept this denial. He told the Tribunal he did not use Ice or sell drugs or Ice. When asked why had picked it up, DXJL told the Tribunal:[87] “I was just curious, I didn’t know what it was”. This explanation is implausible. No other plausible explanation was provided by DXJL or anyone else on his behalf, as to why he kept the Ice in his possession after allegedly finding it and before he was picked up by the Police;
[86] Refer G7/60.
[87] Refer Transcript at P-33.
(b)“theft” (reportedly committed on 10 June 2020)[88]. This offence took place in the company of 14 other males who attended Chemist Warehouse in Smith Street, Collingwood, and involved pushing past staff members who confronted them. Jewellery to the value of $1,911.70 was stolen from this store (Swarming Theft Offence). CCTV footage shows DXJL as being one of the males in the group. When DXJL was arrested on 31 August 2020 for this offence and made a “no comment” interview. DXJL later pled guilty in the Magistrates’ Court that he committed this offence, and the Tribunal finds that he did so. The Tribunal notes the following exchange with DXJL about this offence at the hearing:[89]
[88] Refer S2/21.
[89] Refer Transcript at P-154 and P-155.
TRIBUNAL: Right, yes. And what happened?
DXJL: And, yes, some of the boys were just stealing and taking some stuff from the Chemist Warehouse.
TRIBUNAL: And do you say that because you saw them stealing things?
DXJL: Yes, I was there with them but I wasn’t stealing, I just saw them.
TRIBUNAL: When you saw them stealing things, why didn’t you walk out and walk away?
DXJL: I did walk out. I was in the chemist and I walked outside the chemist. And then because I was on parole at the time and assumed that my parole was about to get cancelled, so I was scared of getting my parole cancelled. But it still happened and - yes.
TRIBUNAL: So what do you say that you did when you saw them stealing?
DXJL: I was in the chemist and then I walked outside, and then I started walking off.
TRIBUNAL: And then what happened?
DXJL: And then, yes, that was the end of the situation. I think they got out of there too, just people started getting out.
TRIBUNAL: And so how did you get charged with that then?
DXJL: Because I was on the cameras and I was with the group of people.”
(c)“theft of a motor vehicle”. This offence took place on about 14 June 2020 resulting in the theft of a 2008 Ford Falcon by using false identification and by false statements being made to the owner that monies were transferred for the purchase of the vehicle, when they were not (Theft of 2008 Ford Falcon). At the time of DXJL’s arrest, he reportedly denied travelling in the stolen vehicle or that it was his fingerprints found on the car[90] (despite having subsequently pled guilty in the Magistrates’ Court in relation to this offence). DXJL sought to explain to the Tribunal that he had been a passenger in the vehicle during the four-day period between the car being stolen, and it being seized by the Police. He told the Tribunal that when he had ridden as a passenger in this car, he was unaware it was stolen. The Tribunal considers this explanation as implausible and does not accept this evidence by DXJL. DXJL, himself, pled guilty to the Magistrates’ Court to committing the offence of theft of this car, and the Tribunal finds that he did so. The Tribunal must not look behind the conviction that was entered against him for this criminal offending which was that DXJL has committed the offence of theft of a motor vehicle;
(d)“deal property suspected proceed of crime” (reportedly, committed on 16 August 2020).[91] This involved the use by DXJL of a stolen phone (which was identified by Police as being stolen by a person other than DXJL about three days earlier). DXJL told the Tribunal at the hearing he did not know the phone was stolen at the time he was using it. The Police linked DXJL to this offence because when using this phone, DXJL had gone into the settings of this phone to change the name of the phone and to access the phone owner’s Spotify account (under DXJL’s Instagram profile), resulting in the Police being able to trace DXJL’s use of this phone.[92] DXJL was found in possession of this phone when he was arrested on 31 August 2020. When DXJL was interviewed he denied the accusations against him in relation to this offence but later, at the Magistrates’ Court on 27 October 2020, he pled guilty to committing this offence leading to this conviction being entered against him. The Tribunal finds that DXJL committed the offence of dealing with property (this mobile phone) suspected to be the proceeds of crime.
[90] Refer G7/59.
[91] Refer S2/21.
[92] Refer G7/61 & 62.
At the time of this criminal offending, DXJL was out on parole for the matters relating to the Aggravated Home Invasion.[93] His parole was cancelled, and following his arrest on about 31 August 2020,[94] he was taken back into custody at Malmsbury YJC.[95]
[93] Refer G7/63.
[94] Refer G7/67.
[95] Refer G7/63 & 67.
The Melbourne Magistrates’ Court sentenced DXJL for the above four offences, as referred to in paragraph [73] above, and when doing so, the Magistrate made the following remarks:
His Honour: I’m particularly concerned about – well, most of the matters but the matter which is hugely concerning, 17 grams methamphetamine is a substantial quantity of substance and he had the accoutrements of trafficking involved with that. In fact putting aside his fanciful story that he just found it somewhere, he did say he was as it were sharing it with friends, not trafficking.
[DXJL’s counsel]: Your Honour, I understand the appropriate charges haven’t been withdrawn, your Honour, I can indicate the trafficking charge is to be withdrawn, Your Honour.
His Honour: But at 17 grams it’s still a trafficable quantity and I would have to be satisfied that he had it for purposes other than trafficking.
[DXJL’s counsel]: Certainly, Your Honour.
His Honour: (Indistinct) how easily that sits and the bottom line is 17 grams divided by 10, that’s somewhere in the vicinity of 170 plus deals that he could have created from that quantity of material.
[DXJL’s counsel]: Certainly, Your Honour, and it is conceded that it is a more aggravated version, if I could put it that way, of a possession charge, Your Honour, in circumstances as Your Honour has alluded to and they are matters that DXJL is aware of in terms of how serious they are in terms of the possession charge.
His Honour: And the other matters are all one way or another fairly serious as well…
On 21 June 2021 DXJL was transferred into immigration detention at MITA. He has remained at MITA ever since.
There were a number of incident reports put to DXJL during cross-examination about conduct that he was allegedly engaged in whilst in detention. The Tribunal has decided only to consider one of those incident where it is clear that DXJL had some involvement. The incident that the Tribunal notes and asked DXJL about at the hearing, was his conduct during a riot at MITA on 26 December 2021 (2021 MITA Riot) which was classified by the staff as a critical incident. The MITA incident report recorded that along with other detainees, DXJL had climbed onto the roof to the detention unit. The report referred to property at the detention centre being damaged during this riot and surveillance cameras were covered. At the hearing DXJL denied that he climbed onto the roof. He admitted that he had left his unit while this riot was taking place and had been outside of the boundaries of where he was permitted to be.
During closing submissions, Ms Tadros said it was accepted that the protection of the Australian community is a primary consideration.[96] However, she contended that when the Tribunal assesses this factor it is relevant that DXJL was a juvenile when he committed “almost all of his offending” and when he offended as an “adult”, he is still considered a “young person” under the Sentencing Act. Ms Tadros contended that it was clear from the sentence imposed by Magistrate Hardy (relating to the offences in 2020) that DXJL was sentenced as a young person in order to rehabilitate and to provide DXJL with an “extra incentive” to be on good behaviour.[97] However, the Tribunal notes the complicating factors at play including the fact that DXJL was already in Youth Justice detention at the time. which led the Magistrate to deal with the 2020 convictions by way of an adjourned undertaking as outlined by his Honour in paragraph [32].
[96] Refer Transcript at P-269.
[97] Ibid.
The Respondent contends that DXJL’s offending is “very serious”. During closing submissions, Ms Tadros, on behalf of DXJL, accepted that when considering paragraph 8.1.1 of Direction 90, certain conduct is viewed by the Australian Government as very serious.[98] However, she contended that this does not mean the Tribunal cannot take into account the particular circumstances surrounding the offending which includes the fact that DXJL was a juvenile and also the sentencing remarks. The Tribunal, in making this Decision, has carefully considered the particular circumstances surrounding the DXJL’s offending as it worked through the various considerations mandated under Direction 90.
[98] Ibid.
Ms Tadros, on behalf of DXJL, sought to downplay, to some degree, the seriousness of DXJL’s sexual assault conviction. She submitted:
…with the sexual assault, if you were looking at sexual assaults in a whole range, you would say that the sexual assault in this particular case – of course, I’m not submitting that it wasn’t serious, but when looking at it relative to other sexual assaults which involve more physicality, penetration, that this sexual assault was minor compared to more serious type of sexual assaults.
When asked by the Tribunal about the context of this offending, in that the sexual assault took place against a person at work doing her job, Ms Tadros clarified her contention by stating that she was not contending that DXJL offending was “minor” and that it was accepted this conduct was “serious”. She clarified that they were contending that sexual assault by DXJL was not “very serious” as contended for by the Respondent.[99] The Tribunal does not accept this contention by Ms Tadros, but rather, accepts the contention of the Respondent that DXJL’s conduct of running his hands over the genitalia of a female youth justice detention officer when she was at work doing her job, constitutes “very serious” offending and reflects the lack of respect that DXJL had for this person, for women, this important Government institution (the detention centre) and demonstrated his blatant disregard for Australian laws protecting against sexual assault.
[99] Refer Transcript at P-270.
The Tribunal is satisfied that the Australian community would expect female detention officers to feel safe to attend their workplace to fulfil paid employment, without being sexually assaulted by detainees. Any action taken by a person through sexual assault to remove this entitlement from those female officers would be viewed by the Australian community as a very serious matter, even if the person was being “egged on” by other detainees as DXJL said at the hearing. The Tribunal considers that this also displays a propensity of DXJL to engage in criminal offending of a sexual nature at times when he is unable to regulate his emotions or where he may use substances in the future likely to reduce or remove his inhibitions. Ms Tadros contends that the Tribunal should consider that the sexual assault by DXJL was an “isolated incident” and has not been repeated. This is certainly true. The Tribunal accepts Ms Tadros’s contention in this regard and finds that while DXJL’s propensity for engaging in acts of sexual assault in the future certainly exists, DXJL is unlikely to have a great propensity to engage in such acts in the future.
DXJL’s most violent criminal offending took place when he was aged 15 and 16 by the home invasions for which he was convicted. The third of the home invasions took place in the context of acting in concert with a group of five of his peers who, as a group, bore makeshift weapons and made threats to kill to the occupants. DXJL contends that he felt unsettled after moving to Melbourne and did not have a father figure growing up in his life. While this is correct, DXJL did have several older immediate family members to nurture, guide and watch over him, including his mother, Sisters A (who is 8 years DXJL’s senior), Sister E, and Brother M.

The Tribunal accepts that Brother M appeared to have been a negative influence on DXJL given Brother M’s reported interaction with the criminal justice system from an early age. Even so, Sister A impressed the Tribunal when she gave evidence at this hearing, that she would have been an excellent role model for DXJL growing up. Sister A gave evidence that she had, in effect, counselled DXJL about the consequences for him if he continued to hang around with the “wrong crowd” and be influenced by them. She tried to persuade DXJL that they were not his real friends, which she said was demonstrated when they did not come to visit DXJL once he was placed in detention. She said, at the time, DXJL would not listen to her, but she thinks he has now realised that what she was saying was right and that his attitude had changed. The Tribunal does not share Sister A’s confidence about this.
The evidence does not refer to any specific instances of DXJL experiencing trauma during his childhood by his primary carers or anyone else. At the hearing, he said he found it difficult at school due to his background. Sister A gave evidence that before DXJL “went down the wrong path in life he was always the sweetest little boy he loved playing sports and going to school even though school was a bit hard for him he tried his best at everything he did”. It is not apparent that DXJL was traumatised at any stage during his schooling in Australia. There were references to him being involved in fights but no details were available as to what that entailed.
As mentioned above, DXJL was involved in three home invasions, the last being the heinous home invasion inflicted on vulnerable members of the Australian community in November 2018. He did not retreat upon realising who was in the house. Nor did he turn himself in the 12 days to follow before he was arrested. He pled guilty but only after he was caught on camera and sought to achieve leniency in the sentencing for those offences. He had offended previously and been given stern warnings by those presiding over him from the criminal justice system. Those warnings did not have desired effect of reforming DXJL and instead, he later reoffended a matter of months after being released on parole in 2020.
The sentences imposed on DXJL for his crimes reflect the seriousness of his criminal offending. DXJL’s victims in the Aggravated Home Invasion suffered grave harm. Like the Magistrate who sentenced DXJL for his criminal offending in 2020 when he was 18 years old, the Tribunal does not believe DXJL’s evidence that he had found the 17g of Ice and 87 Ziploc bags on the ground and was not involved in some capacity in the trafficking of those substances. DXJL gave evidence he found a bag on the ground, picked it up and was approached by the Police straight away. He later conceded that those items were in his possession for about ten minutes before he was picked up by the Police, when it was put to him that this was recorded in the transcript of the Magistrates’ Court proceeding on 27 October 2020. The Tribunal infers from DXJL’s possession of those items, with no plausible explanation as to why he had them or kept them in his possession, that DXJL was involved in some capacity in the distribution of harmful illicit substances likely to cause significant damage to the end users of substances and to the Australian community.
When giving evidence at the Tribunal, Sister A said that everyone deserved a second chance referred to DXJL. As outlined above, over DXJL’s history of criminal offending and copious interactions with the criminal justice system, he has had three identifiable chances to reflect upon his involvement in his criminal offending and to reform himself. Despite those three chances as referred to above in paragraphs [52], [59] and [71], DXJL reoffended as an adult, resulting in further convictions for serious offences entered against him in 2020.
The Tribunal considers that DXJL’s repeated acts of home invasion, theft, drug possession in 2020 of trafficable quantities of Ice and his sexual offending in 2018, would be viewed very seriously by the Australian Government and the Australian community. The Tribunal is satisfied that the Australian community would expect to be protected from such conduct by non-citizens.
Risk to the Australian community
Direction 90, at paragraph 8.1.2(1), requires the Tribunal to have regard to the Government’s view that the tolerance of the Australian community for any risk of future harm becomes lower, as the degree of seriousness of the potential harm increases. Some conduct and the harm it would cause, if repeated, is so serious that any risk that it may be repeated may be unacceptable. The Tribunal considers that criminal offending such as home invasions bearing weapons and making threats to kill falls into this category. So does sexual offending against persons, while they are seeking to fulfil the duties and responsibilities of their paid employment, and being found in possession of 17g of Ice.
Direction 90, at paragraph 8.1.2(2), also requires the Tribunal to take into account the following:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i) information and evidence on the risk of the noncitizen re-offending; and
ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The Tribunal will evaluate the consequences of reoffending, as well as the likelihood of DXJL engaging in that conduct in the future.[100]
[100] In accordance with the observations of Mortimer J in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; [2014] FCA 673 (Tanielu).
The consequences of DXJL reoffending in the manner in which he has offended previously, would be horrific. It would lead to further members of the Australian community being traumatised in the sanctity of their own home and would likely lead to them suffering serious psychological harm.
The consequences of DXJL reoffending by possessing trafficable quantities of Ice (and bags used to distribute this substance), is also likely to be damaging to the Australian community if he took the Ice himself or gave it to other people. The Magistrate who entered convictions against DXJL for this offence on 27 October 2020 spelt out in quite some detail the damaging effect those drugs would have on persons consuming them including the following remark:[101]
…Sorry, but I am not obliged to, amongst other things, accept your story about finding 17 grams of Ice. People don’t lose 17 grams, they keep it safe and if they do misplace it they find it straight away. So I’m really suspicious of that and methamphetamine is a really, really toxic, dangerous drug. Every time somebody uses it, it damages their brain…
[101] Refer G7/78.
DXJL, by his legal representatives, did not engage a psychologist to prepare a report about the prospects of him reoffending. The Tribunal enquired as to why this was the case. Ms Tadros explained that an attempt was made to obtain a report or letter from DXJL’s psychologist at Orygen. The Tribunal was informed this was not possible due to the psychologist’s employment requirements.[102] The Tribunal enquired as to why a summons had not been requested to compel the psychologist to attend the hearing. Ms Tadros informed the Tribunal that the last time his psychologist had seen him was in 2021. When asked why arrangements were not made for an independent psychologist, Ms Tadros informed the Tribunal that DXJL did not have the money to pay for that and that they were all acting on a pro bono basis.[103] Accordingly, the Tribunal made the assessment as to the risk of DXJL reoffending on the other evidence before it.
[102] Refer Transcript at P-275.
[103] Refer Transcript at P-276.
The Tribunal notes that a provisional psychologist and forensic and clinical psychologist prepared a Clinical Tier 2 Assessment Report in respect of DXJL on 15 February 2020 (when DXJL was aged 17, and which preceded DXJL’s spate of offences in between June and August 2020).[104] At the top of the report, there is a notation that the purpose of the report was for the Youth Offending Program treatment only. The report states that DXJL attended three assessment sessions between 6 and 16 January 2020. The authors state in this report that DXJL is considered to be at “high risk of reoffending violently”.[105] The authors stated in this report as follows:[106]
In summary, it appears that DXJL has a history of predominately violent and acquisitive offending that is primarily instrumental in nature (i.e. goal oriented aggression or with a weapon) often motivated by poor emotional regulation, financial again, boredom, asserting autonomy, dominance, arousal and excitement. DXJL does present with moderate level of victim empathy and reports his violent and antisocial behaviours are linked to his inability to manage strong emotions in his life, peer relationships and substance use.
[104] Refer S1.
[105] Refer S1/11.
[106] Refer S1/8.
Mr Tadros, on behalf of DXJL, accepted during closing submissions that there is a risk of DXJL reoffending but the risk of him engaging in sexual offending is “low” or “negligible” given his past offence was an isolated event and there was trend of such conduct. The Tribunal agrees that the risk of DXJL committing sexual assault again is low for the reasons set out in paragraph [82] above.
Ms Tadros contended that the risk of DXJL engaging in “offending involving physical, psychological, or financial” or him engaging in drug-related offences is “low enough to be acceptable to the Australian community”, taking into account his youth at the time of offending and that he has since matured, rehabilitated and has may protective factors now in place.[107] In that regard, the Tribunal acknowledges that there has been signs of the general maturation of DXJL and some improvement in his behaviour towards others, as evident from a report given by a Ms DB, Classification and Placement Unit, in Youth Justice detention, on 25 November 2020 (that is, following the four offences committed in 2020). Ms DB stated as follows:[108]
…Aside from the above incidents DXJL is noted to engage well with staff and other young people in the unit. He generally presents as polite, respective and interactive with both peers and unit staff. DXJL is very competitive in sports and has been encouraging his peers to attend recreational activities. DXJL completes unit chores, engages in classes and attends his required appointments. Unit Manager Ms TM reports that DXJL is compliant with staff direction, follows unit rules and has maintained either a gold or silver Achieve Challenge Encourage (ACE) level for an extended period. Due to his positive progress DXJL is currently under consideration for an opportunity to progress to an open unit.
[107] Refer Transcript P-276 & P-277.
[108] Refer S2/22.
The Tribunal also acknowledges the evidence given by DXJL’s teachers at O-Street at the hearing about his positive involvement with O-Street programs in recent times before going into immigration detention.
DXJL stated in the PC Form that he understands that his “offendings are horrible” and that it had affected a lot of persons. He described, as the circumstances of his offending, that he had “a broken home” and “no one to go to through [the] hard times”. The Tribunal does not accept this evidence. DXJL has always had a loving parent (his mother) and at least one other significantly older sibling, Sister A, who were persons he could have gone to in hard times. Their evidence was they had tried to offer DXJL advice and support, but that he would not listen or accept such support from them when he was on the wrong path.
The Tribunal acknowledges the DXJL faced some challenges being a new Australian of African appearance (including at his schools, as DXJL has stated in evidence). However, the Tribunal considers the DXJL is primarily the maker of the present situation he now finds himself in, due to the poor choices he has repeatedly made growing up as an adolescent and young adult, by choosing to not listen to his mother and Sister A, to abscond from his home and not heed the several stern warnings given to him by members of the judiciary and Magistrates’ Court. The Tribunal considers that DXJL has let himself be led into a life of criminal offending and consequently detained for a good part of his youth because of it, due to a misplaced belief on his part that he knew better than others around him. His past decisions have been driven by his desire for autonomy, financial gain, excitement, and fun, and to be accepted by a peer group who consider criminal offending and terrorising others is an acceptable way to acquire material possessions such as car, telephones and jewellery. DXJL has no significant history of having been gainfully employed during his time living in Australia and at the hearing, he told the Tribunal he had never had a job.[109]
[109] Refer Transcript at P-77.
DXJL was questioned at the hearing about his offending (the offence in 2020 including the possession of Ice) after a period when he had received significant support from O-Street. At first, DXJL denied he was undertaking any rehabilitation programs at the time he committed the offence on 10 July 2020.[110] Mr Turner took DXJL to the letter of support provide a staff member, Ms JM, at O-Street which states that DXJL had attended O-Street on 21 May 2020 and that she had worked closely with DXJL over the course of the second and third terms.[111]
[110] Refer Transcript at P-35.
[111] Refer G36/210 & 211.
Upon this evidence being put to DXJL, he conceded that he had been attending rehabilitation at the time. He also accepted that despite the support from O-Street, he had reoffended.[112] The Tribunal gave DXJL a further opportunity to comment about this and to explain if there were any other reasons why, despite being involved with O-Street, that he had committed the offences. DXJL gave evidence as follows:[113]
[112] Refer Transcript at P-35.
[113] Refer Transcript at P-36.
DXJL: Well, at that time of the offending, yes, I was going to O Street. And I think that was only – the only program that I was going to at the time. And I would say I didn’t really have that much guidance at the time and the - - -
TRIBUNAL: Although it seems that there’s some witnesses that are going to give evidence in your case from O Street?
DXJL: Yes. Yes, yes.
TRIBUNAL: So what do you say about the level of support that’s provided through that O Street program?
DXJL: Yes, I - - -
TRIBUNAL: It doesn’t seem to me to be tokenistic if you’ve got representatives here - - -?
DXJL: No. Yes, I know.
TRIBUNAL:- - - speaking on your behalf?
DXJL: Yes. But the – for me, personally, the thing that played the most part is just being away from my family and that was – I needed the motivation and the love from my family and that was kind of the reasons of why I was kind of slipping a little bit. And, yes, it was just hard at the time. Just being the way – dealing with the COVID stuff, it was – it was a different world for me and a different situation I had to deal with. And, yes, I do take ownership for the things that I’ve done - for the offence. You know, I understand that it was wrong. But at that time, yes. That was just what I was missing. Just my family. My family support. And I did have the support of O Street, but I just needed a little bit more from my family.
At the end of the hearing, DXJL told the Tribunal that he was not the same person that he used to be. He said he had matured and come a long way. He said he would like the opportunity to show that he has changed and matured.[114]
[114] Refer Transcript at P-267.
When Sister A gave evidence at the hearing, she gave the following evidence about how her communication with DXJL had changed:
COUNSEL: In terms of the way that he communicates with you now compared to when he was offending, how would you describe that?
SISTER A: Right now, he listens to me and is more understanding, like if I tell him something then he agrees with me; he doesn’t argue with me. At the time he did all of that, he was young. I was young, too, and you know that if siblings are both young then they argue a lot. “I am right, you are wrong,” but now he knows I am older and he knows that everything I told him in the past, he says, “Sister A, you are right, you know? If only I listened to you then I wouldn’t be here now.” He knows. Now, when I talk to him, it’s totally different and he knows that I am right and he agrees with me.
As mentioned, the Tribunal acknowledges that DXJL has shown some signs of having matured or having become more insightful than he was previously when he committed the offences in 2020. But the Tribunal is not satisfied that DXJL has demonstrated sufficient insight as to his own responsibility for his extensive history of criminal offending. The evidence given at the hearing about the Swarming Theft Offence as set out in paragraph [73(b)] above, is an illustration of this. He does not accept responsibility for his involvement in that incident even though he was clearly involved, pled guilty and convicted for this offence. He refers to other stealing the items and not himself even though he was acting in concert with them to achieve that outcome.
DXJL says he is sorry for what he has done and that he acknowledges he has hurt some people, but he also seeks to pass at least some responsibility for his offending onto external factors, such as his upbringing and family circumstances and the challenges he said he faced at school as a new Australian of African descent. It is not clear to the Tribunal why those adversities alone, which many other new Australians who have settled in Australia also face, would lead a person to criminal offending to the very extreme degree that DXJL has engaged in, between the ages of 15 to 18.
The Tribunal acknowledges that DXJL did not contest the convictions entered against him at the time he was prosecuted. He pled guilty to the offences referred to above. However, he did not do so immediately. He did not turn himself in for his criminal offending. He pled guilty only after he was arrested, taking up the time and resources of the Australian criminal justice system to investigate, arrest and lay charges against him. He refused to consent to be interviewed about incidents or his involvement in them. This required the Police to expend more resources and monies to ensure they had sufficient evidence to proceed with a criminal prosecution.
Specifically, he made no record of interview when arrested for the Aggravated Home Invasion, nor did he agree to an interview when arrested for the four offences including the possession of 17g of Ice in 2020. DXJL pled guilty at a time when it came to plea bargaining in respect of which charges would be prosecuted against him or where it came to his knowledge that video footage or objective fingerprinting evidence was available to prove some of the charges against him. For this reason, the Tribunal does not accept that by DXJL pleading guilty, that he should be regarded as having remorse for, or insight into, his criminal offending. He did so to obtain a sentencing benefit or “plea bargain” in relation to the multiple charges he was facing.
The Tribunal also considers that DXJL’s previous lack of remorse is evident from his decision to reoffend in 2020 despite being informed about the serious harm he had caused to others, and his later decision to be involved in the 2021 MITA Riot by moving to an area outside of the permissible boundaries at the detention unit, showing a disregard for law and order with the detention centre and a lack of respect for an important Government institution.

Ms Tadros highlighted the following information contained in the evidence before the Tribunal:
(a)the UN Commission on Human Rights in South Sudan reported a pattern of deliberately targeting civilians based on their ethnic identity, including obstruction of humanitarian aid, and concluded government forces were responsible for acts that may constitute war crimes and crimes against humanity;[163]
(b)inter-ethnic fighting and violence by government opposition forces and armed militias, targeting specific groups resulted in human rights abuses; that inter-ethnic clashes occurred throughout the year; that insecurity, inflammatory rhetoric, including hate speech and discriminatory government policies have led to a heightened sense of tribal identity exacerbating into ethnic differences;[164]
(c)in September 2022, three humanitarian workers lost their life in the line of duty in South Sudan and since the beginning of 2022, eight humanitarian workers have been killed;[165]
(d)there has been continued alarm by UN committees about the recruitment and use of children in armed conflict in South Sudan. DXJL is no longer under 18, but as a young man, he would still face the possibility of being forcibly recruited or finding that that is the only option where he can actually earn a living, given the economic situation which basically has four out of five people living under the international poverty line in 2016;[166]
(e)there is a risk to DXJL’s mental health because access to mental health in South Sudan is severely limited and there are only three psychiatrists in this country.[167] The Juba Teaching Hospital is the only public medical facility that provides psychiatric care, and the availability of drugs is inconsistent and limited. Ms Tadros contends that DXJL would be unlikely to obtain any treatment for any mental health issues that may arise if he were to return to South Sudan. It also says that: “Refugees and failed asylum seekers are at substantially higher risk than the general population for a variety of specific psychiatric disorders”;[168]
(f)according to the South Sudan Medical Journal, South Sudan has one of the largest mental health gaps in the world. The estimated mental health treatment gap among the population of humanitarian concern is “a staggering” 99 per cent.[169] Similarly, for just access to normal health, public health facilities are under resourced. South Sudanese continue to die in high numbers of preventable diseases and other conditions due to inadequate healthcare facilities and attacks on healthcare facilities.[170] South Sudan only has one doctor for every 65,574 people,[171] and only 40 per cent have access to safe water;
(g)there is information about “parties to the agreement” continuing to use violence against civilians during 2020, including for forced recruitment and forced labour.[172] The UN declared that South Sudan faced the worst levels of food insecurity since independence and that in 2022, an estimated 8.3 million people, including refugees, are expected to experience severe food insecurity;[173]
(h)regarding unemployment, 95 per cent of livelihoods depend on traditional rainfed agriculture and crop farming. Only 28 per cent of people have access to electricity. Only 56 per cent of people own their own phones. South Sudan lacks the most basic infrastructure.[174] Two million people are internally displaced. South Sudan remains the largest refugee crisis in Africa. Extreme flooding continues, affecting eight out of 10 states, which creates and exacerbates the humanitarian crisis.[175] A total of 1 million persons were affected by flood from July 2020 to January 2021;[176] and
(i)South Sudan is experiencing political instability, and that violence is escalating, because of an upcoming election. Ms Tadros agreed that this election had been postponed and was due to take place in 2024, and earlier as was submitted to the Tribunal.
[163] Refer Exhibit A3 at page 160.
[164] Refer Exhibit A3 at page 180.
[165] Refer Exhibit A3 at page 335.
[166] Refer Exhibit A3 at page 26.
[167] Refer Exhibit A3 at page 278.
[168] Ibid at page 253.
[169] Ibid at page 298.
[170] Ibid at page 15.
[171] Ibid at page 26.
[172] Ibid at page 233.
[173] Ibid at page 46.
[174] Refer Exhibit A3 at pages 22, 27 and 108.
[175] Ibid at page 12.
[176] Ibid at page 237.
The Tribunal considers that it is readily apparent from the country information before it, including the DFAT Country Information Report issued on 5 October 2016 and the further information provided by DXJL’s legal representatives, that DXJL would face a significant risk and likely to suffer harm, and potentially serious harm, if he were removed to South Sudan. When DXJL gave evidence at the hearing, he seemed most concerned that people in South Sudan would assume that he had money given his background and that he would be subjected to extortion. The Tribunal accepts this is a real possibility. The Tribunal also considers that the lack of infrastructure, wide-spread food insecurity, and the lack of government, military, and a Police force in South Sudan, free of corruption and conflict, will also make it extremely difficult for DXJL to establish a life for himself in South Sudan to a level where his basic personal needs are met. The support DXJL is currently receiving to manage his depression and anxiety would likely be reduced to no support if he were to live in South Sudan. The Tribunal accepts that he has no family, friends, or other network in South Sudan to assist him. In an effort to survive, the Tribunal accepts it is quite possible that DXJL may be recruited into an army, group, or criminal gang of some kind in South Sudan and inevitably embroiled in conflict leading to his injury or even death.
In summary, the Tribunal needs little convincing that if DXJL were removed to South Sudan that the representations he made about the likelihood he would suffer harm are made out, based on the evidence before the Tribunal. This includes the evidence given by Ms SW, Academic, although more so from the country information that was before the Tribunal, as many of Ms SW’s assertions were based on personal speculation based on her three visits to South Sudan as an Anglo-Saxon woman. The Tribunal preferred the information provided in the South Sudan country information provided by both parties in this proceeding which overall painted a grim picture of what it would be like to live in South Sudan.
For these reasons, the Tribunal considers that this factor weighs heavily in favour of revocation of the visa cancellation decision.
Legal consequences of a decision not to revoke the visa cancellation decision
The statutory consequence of a decision by this Tribunal not to revoke the visa cancellation decision is that he becomes an “unlawful non-citizen” under s 14 of the Act. This means that DXJL would:
(a)become liable to removal from Australia “as soon as reasonably practicable”, by operation of s 198 of the Act; and
(b)in the interim, must remain or be liable to detention under s 189 of the Act.
DXJL would not become liable to be removed from Australia under s 198 if he is granted another visa. It is open to DXJL to apply for a Protection visa or a Bridging R (Class WR) visa.
An officer is required to remove “as soon as practicable” an unlawful non-citizen who is a detainee who has made a valid application for a substantive visa that can be granted when he or she is in the migration zone and (relevantly) the visa has been refused and the application finally determined – see subsection 198(6) of the Act. This subsection would operate to require the unlawful non-citizen’s removal from Australia if any application for a Protection visa was refused. If the unlawful non-citizen does not make an application for another visa, subsection 198(2B) of the Act will require DXJL’s removal from Australia. If he made an application for another visa, he would be liable to be removed from Australia under subsection 198(6) of the Act if that application was refused.
If the visa cancellation decision is revoked, subsection 501CA(5) provides that this decision is taken not to have been made. In those circumstances, DXJL would not be an “unlawful non-citizen” and accordingly, not liable to removal from Australia under either s 198(2B) or s 198(6) of the Act.
The Tribunal notes DXJL’s mother’s evidence that she does not hold any official South Sudanese citizenship documents. She gave evidence that when the war broke out in South Sudan, everyone ran and did not take things with them.[177] DXJL’s mother was a teenager at this time. The Tribunal accepts this evidence. DXJL’s mother also said that she has never been in possession of identification documents from her country of birth, South Sudan. Accordingly, DXJL does not have any official documents linking him to South Sudan. The Tribunal notes that there are laws in South Sudan which operate to confer South Sudanese citizenship on persons who are born to parents from a place which falls within the territory now comprising South Sudan. This is so in respect of DXJL and it was not in dispute in this proceeding that DXJL was born to South Sudanese parents. However, if DXJL has difficulty establishing to the relevant authorities the heritage of his parents, there is a possibility, albeit slim, that it would represent a practical impediment to his removal under s 198(2B) of the Act, which would result in his further detention being an adverse consequence for DXJL.
[177] Also, DXJL does not have a birth certificate – refer Transcript at P-79.
The Tribunal has considered that if it does not make a decision which has the effect of revoking the visa cancellation decision, that DXJL may remain in detention indefinitely while any protection visa application made by him is considered or the Respondent considers the possibility of re-settlement of DXJL or exercising a personal discretion in his favour. There is no evidence before the Tribunal suggesting re-settlement or exercising the Respondent’s personal discretion would be considered.
If this were to eventuate, the Tribunal is satisfied that the indefinite detention of DXJL is likely to impact negatively on his mental health. DXJL is being managed effectively at the moment by the administration of 60mg per day of Mirtazapine. But DXJL has been able to hold out hope that this application would be determined in his favour. This hope may be lost if he is held in indefinite detention following the Tribunal’s decision in this application and for this reason, the Tribunal considers it likely that DXJL’s mental health would decline
For the above reasons, the Tribunal concludes that the likely prospect of DXJL being detained indefinitely as a statutory consequence of this Decision and the implications it may have on his mental health, weighs heavily in favour of revoking the visa cancellation decision.
Extent of impediments if removed to South Sudan – Direction 90, paragraph 9.2
Direction 90, at paragraph 9.2, requires the Tribunal to take into consideration the extent of any impediments DXJL may face if removed to South Sudan in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens in South Sudan. The Tribunal is to take into account DXJL’s age and health, whether substantial language or cultural barriers exist, and the extent of any social, medical and/or economic support that would be available to DXJL in South Sudan.
The Tribunal will deal first with a consideration of DXJL’s age and health.
DXJL was assessed by a forensic and clinical psychologist and provisional psychologist from Caraniche Forensic Youth Service for the purpose of them preparing a “Clinical Tier 2 Assessment Report” for Youth Offending Program Treatment. This report was issued on 21 November 2019.
In this report, the psychologists state that DXJL had reported to them that he does not have any medical diagnoses. They remarked that he presented with good physical and mental health, but since being in custody at Malmsbury YJC, he had experienced trouble sleeping. They stated that the Pre-sentencing Report issued in 2019 had indicated that DXJL did not have a reported intellectual disability or mental illness but had mentioned that he was prescribed medication whilst remanded in custody at Parkville YJC and in 2018, was referred to Orygen custodial forensic youth mental health (Orygen YMH) to help with his lack of sleep. They stated that DXJL was initially seeing an Orygen YMH clinician, but he ceased appointments as he felt like he did not need to see someone (but has remained on Mirtazapine since then).
At the hearing, DXJL told the Tribunal he was continuing to take 60mg of Mirtazapine daily, in the evening, and that he does not have difficulty with sleeping. When asked whether he was seeing a psychologist or psychiatrist, he said that he was not. He attributed this to there not being a service available to him while he was in MITA. When asked by the Tribunal if he had sought to access telehealth psychological services using his mobile telephone (which he confirmed has internet access), he said he was unaware he could do this.
The clinician at Orygen involved in treating DXJL, Ms KT, completed a discharge report on 11 June 2021 when DXJL was transferred to immigration detention. This report refers to:[178]
(c)DXJL having a diagnosis of “Major Depressive Disorder – in remission”;
(d)DXJL commencing on 45mg Mirtazapine in January 2021 with symptoms improving, since the “parole outcome”;
(e)DXJL was to be transferred to IHMS,[179] the medical services provider in the detention facilities;
(f)if DXJL’s substance abuse relapses, it could have a deleterious impact on his mental state and behaviour;
(g)that DXJL had demonstrated insight into a preference to engage in evidence-based treatment of his depression, rather than self-medicating; and
(h)that DXJL had presented as stable in mental state as of 25 May 2021 “as per clinician”, that he was “settled and future focussed” and there were “Nil current concerns around mood or sleep”.
[178] Refer G15/107 & 108.
[179] International Health and Medical Services.
The Tribunal accepts that DXJL has the potential to suffer from symptoms affecting his mental health function but at present, with the use of Mirtazapine, this symptomatology appears to be adequately managed and he has not sought out counselling. The Tribunal does not accept that DXJL was not receiving psychological treatment in immigration detention because it was not available to him. He was in fact he referred to IHMS. A number of reports by psychologists who have assessed DXJL have stated that DXJL has been good at reaching out when he requires psychological support and conversely, withdrawing from such services when he does not require them. There was no recent history of DXJL having suffered mental health-related symptomatology which the Tribunal considers is likely to be the reason why DXJL is not presently receiving treatment from a mental health practitioner.
Even so, the Tribunal has mentioned above that it is satisfied that if DXJL is faced with adversity in the future by a change in his circumstances such as seeking to establish a life for himself in a country such as South Sudan without any networks or support, it is likely that his mental health would decline and the support available for him in South Sudan would be non-existence or negligible.
DXJL’s age may also work against his chances of being able to establish a life for himself in South Sudan. While he is 20 years old, he is still a young male and may be easily influenced by older adults in South Sudan, without the support of family around him, as has been demonstrated to be the case in the past. On the other hand, DXJL’s young age and good physical health means that he is capable of working, and for a decent length of time, albeit the Tribunal acknowledges that the task of him finding work remains difficult.
On balance, the Tribunal finds that DXJL would face substantial barriers establishing himself in South Sudan and maintaining a basic living standard, arising from his age and health.
The Tribunal will consider next, any substantial language and/or cultural barriers.
DXJL has been raised in Australia since the age of 2. When DXJL gave evidence at the hearing and the Tribunal observed him to be able to converse well in English. DXJL gave evidence that it was his handwriting on, and that he had completed, the PC Form demonstrating that his written English is also quite good, albeit at a basic level.
DXJL gave evidence that he is not fluent in speaking in Dinka, but he accepted that he has a basic understanding of it. He said when he spoke to his mother, he would do so using a combination of English and Dinka.
DXJL’s mother requested and used an interpreter when giving evidence at the hearing. She gave evidence that she was able to speak to her son in English sometimes and at other times, she would speak to him in Dinka. When asked to repeat her answer to the Tribunal in English, she did not do so.
The Tribunal considers that it is likely that DXJL and his mother are likely to regularly converse in Dinka, perhaps with some limited use of English. The Tribunal considers that DXJL has an understanding of and can converse in Dinka but accepts his ability to do so might be limited. Despite this, the Tribunal accepts that DXJL’s understanding of the Dinka language is most likely at a basic to moderate level. The Tribunal accepts that DXJL is probably not fluent in Dinka, in accordance with his assertion in this regard.
The Tribunal notes that DXJL is not familiar with the language, Juba Arabic.
There was some debate at the hearing about which language was commonly spoken in South Sudan. The Tribunal considers there is some basis arising from DXJL’s current English and Dinka language skills upon which he will be able to “get by” when communicating with others in South Sudan, just like he is able to communicate with his mother who was raised in South Sudan and only has a limited ability to converse in English. Even so, the Tribunal accepts that DXJL would struggle with communication if he were living in South Sudan and that those language difficulties would also reveal to others in the South Sudanese community that he was not raised in that country.
The Tribunal also accepts that DXJL may encounter difficulties arising from cultural differences. However, this is tempered by the fact that even when living in Australia, he was raised by his mother who is South Sudanese until her late teenage years. He also chose to play sport with and socialise with (and at times live with) peers from a South Sudanese background. While this is likely to be different from having socialised with peers in the context them of them all living in South Sudan, the Tribunal considers that DXJL has at least had a good introduction by those associations and through years of contact with his immediate and extended family into the culture and customs in South Sudan.
Even so, the Tribunal accepts that DXJL is still likely to face difficulty arising from cultural factors if he were removed to South Sudan as it will be a unfamiliar environment to him never having lived or visited South Sudan. The Tribunal finds that DXJL would, overall, face substantial language and cultural barriers establishing himself in South Sudan and maintaining a basic living standard.
The last matter the Tribunal will consider is the extent of any social, medical and/or economic support that would be available to DXJL in South Sudan
As mentioned above, the Tribunal accepts that DXJL would face significant barries in establishing himself in South Sudan and maintain a basic living standard, due to the likely absence of any effective social, medical and/or economic supports in South Sudan.

The Tribunal concludes that given the extent of the impediments or barriers referred to above that DXJL would face in establishing himself and maintaining basic living standards in South Sudan, that this factor weighs heavily in favour of revocation to the cancellation decision.
Impact on victims – Direction 90, paragraph 9.3
There is no evidence before the Tribunal in relation to this consideration as it is described in Direction 90 at paragraph 9.3. For this reason, this factor neither weighs for nor against the revocation of the visa cancellation decision.
Links to the Australian community – Direction 90, paragraph 9.4
DXJL has lived in the Australian community since the age of 2. He was schooled in Australia. He started offending at an early age and has spent a significant portion of his teenage/young adult life in youth justice or immigration detention.
All of DXJL’s immediate and extended family members resides in Australia. This is a very significant link between DXJL and the Australian community. He does not have any children of his own in Australia, but the Tribunal accepts that his Australian-based family members would be emotionally distressed if he is not permitted to remain living in Australia. Most of them have not seen him for several years, but he has remained in contact with them by telephone or video calls and the Tribunal accepts he is certainly closer to them now, when compared to the past when he was absconding from his home.
DXJL has also formed good links with his past teachers and mentors, which is clear from the evidence given by the two witnesses from O-Street at the hearing.
DXJL has not participated in the workforce nor held any business interests or engaged in any business interests. For this reason, there would be no impact on any Australian business if he is not permitted to remain in Australia.
The Tribunal finds that DXJL has strong links with Australian community and this factor weighs heavily in favour of revocation of the visa cancellation decision.
Weighing up the considerations
The Tribunal is required to undertake an evaluative exercise of weighing up the factors addressed above to decide whether it is satisfied there is another reason to revoke the visa cancellation decision.
As a primary consideration, the Tribunal has found that the best interests of Sister At, Niece and Nephew weigh moderately in favour of revoking the visa cancellation decision.
The Tribunal considers that DXJL’s links with Australia through the strength and nature of DXLJ’s ties to Australia, having arrived and remained in Australia at age 2, weighs heavily in favour of revoking the visa cancellation decision. The Tribunal considers that DXJL’s claims that he would be harmed if he was removed to South Sudan are made out and that this weighs heavily in favour of revoking the visa cancellation decision. The Tribunal concludes that given the extent of the impediments or barriers referred to above that DXJL would face in establishing himself and maintaining basic living standards in South Sudan, this is a factor that weighs heavily in favour of revocation of the cancellation decision. The Tribunal concludes that the best interests of Sister At, Niece and Nephew each weighs moderately in favour of revocation of the cancellation decision. The Tribunal concludes that the legal consequences not to revoke the visa cancellation decision that is, the likely prospect of DXJL being detained indefinitely as a statutory consequence of this Decision, weighs heavily in favour of revoking the visa cancellation decision
The Tribunal acknowledges, by the principles set out in Direction 90 at paragraph 5.2, that the Australian community may afford a higher level of tolerance of criminal conduct by non-citizens who have lived in Australia for most of their life or from a very young age. This applies in DXYL case, having arrived in Australia at age 2 and having remained ever since. Those principles also require the Tribunal to focus on the expectation that non-citizens will be law-abiding and will not cause harm to individuals in the Australian community. DXYL traumatised vulnerable members of the Australian community in their own home during the Aggravated Home Invasion (and it being the third occasion upon which he has committed an offence of home invasion). In the Tribunal’s view, the tolerance of the Australian community does not extend to allowing a person who has committed such an offence with a “moderate” risk that he may do so again, to be able to remain in the Australian community, even after taking into account the mitigating factors referred to above, such as his young age at the time of his offending and other personal circumstances and assurances he made to the Tribunal during this hearing, as referred to in these Reasons for Decisions. The Aggravated Home Invasion was a horrific crime by DXJL and extremely damaging to the victims, causing the 56-woman in particular, serious psychiatric injuries. Further, the Tribunal is also of the view that the tolerance of the Australian community would not extend to allowing a person, with DXJL’s criminal background, to commit an offence of possessing 17g of Ice as an 18-year-old and being allowed to remain in Australia. By the time of committing that offence, DXJL had been given three identifiable chances to reflect upon his wrongdoing and to reform his ways.
The Tribunal accepts that DXJL now seems committed to commenced on a path of rehabilitating himself. However, the Tribunal considers he is at the beginning of this path and not anywhere near the end. It is positive that he has attended some rehabilitation courses and now completed them. However, the instances of reoffending in 2020 and his involvement in the 2021 MITA Riot by moving to an area where he was not permitted to be, demonstrates that he has a long way to go before he can be considered as rehabilitated.
Overall, the Tribunal concludes there is a moderate risk that if DXYL was released back into the Australian community he would resume reoffending in the same way he has in the past and would likely return to using drugs and consuming alcohol when things get tough increasing his risk of reoffending. The Tribunal concludes that this moderate level of risk is unacceptable given the type DXJL’s prior offending.
The Tribunal appreciates the likely disappointment this Decision will cause DXJL and his family members. However, having regard to the nature and severity of DXJL’s prior criminal offending and other serious conduct, the Tribunal is of the view that even a moderate risk of him reoffending in this manner if DXJL were released is an unacceptable risk to the Australian community. The Tribunal concludes that protection and expectations of the Australian community are primary considerations in this application weighing very heavily against the revocation of the visa cancellation decision and that they outweigh the factors referred to paragraph [233] weighing heavily in favour of revocation.
CONCLUSION
The Tribunal is not satisfied there is another reason to revoke the visa cancelation decision.
Accordingly, the Tribunal affirms the decision made on 29 July 2022 to not revoke the mandatory visa cancellation decision of 10 February 2021.

I certify that the preceding 239 (two hundred and thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member K. Parker

............[sgd]............................................................
Associate
Dated: 11 November 2022

Date(s) of hearing: 19 and 20 October 2022

Date final submissions received: 17 October 2022

Counsel for the Applicant: Ms Evelyn Tadros

Solicitors for the Applicant: Ajak & Associates

Advocate for the Respondent: Mr Peter Turner

Solicitors for the Respondent: Minter Ellison

Date(s) of hearing:	19 and 20 October 2022
Date final submissions received:	17 October 2022
Counsel for the Applicant:	Ms Evelyn Tadros
Solicitors for the Applicant:	Ajak & Associates
Advocate for the Respondent:	Mr Peter Turner
Solicitors for the Respondent:	Minter Ellison