FJTB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

FJTB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3576 (7 October 2021)
Division:GENERAL DIVISION
File Number: 2021/4988
Re:FJTB
APPLICANT

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

DECISION
Tribunal:Dr Stewart Fenwick, Senior Member
Date:7 October 2021
Place:Melbourne

The Tribunal decides to set aside the decision of the Respondent dated 8 July 2021 not to revoke the mandatory cancellation of the Applicant’s Global Special Humanitarian (Class XB) (Subclass 200) Refugee (Permanent) visa under s 501CA(4) of the Migration Act 1958 (the Act) and substitutes it with the decision that the mandatory cancellation is revoked as there is another reason pursuant to s 501CA(4)(b)(ii) of the Act.
..[sgd].....................................................................
Dr Stewart Fenwick, Senior Member
Catchwords
MIGRATION – mandatory visa cancellation – national of South Sudan – Global Special Humanitarian (Class XB) (Subclass 200) Refugee (Permanent) visa – failure to pass character test – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 90 applied – decision set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975
Migration Act 1958
Cases
AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105
FYBR v Minister for Home Affairs [2019] FCAFC 185
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)
Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)
Department of Foreign Affairs and Trade, Country Brief – South Sudan, 5 October 2016
Report of the Secretary General of June 2021
Department of Foreign Affairs and Trade, ‘South Sudan’, Smartraveller (Web Page, 29 March 2021) < Rights Council, Detailed findings of the Commission on Human Rights in South Sudan, 46^th sess, Agenda Item 4, UN Doc A/HRC/46/CRP.2 (18 February 2021)
International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (Direction 90, 8 March 2021)
Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)
Second Optional Protocol to the International Covenant on Civil and Political Rights, opened for signature 15 December 1989, 1642 UNTS 414 (entered into force 11 July 1991)
Secretary-General, Situation in South Sudan, UN SCOR, UN Doc S/2021/566 (14 June 2021)
REASONS FOR DECISION
Dr Stewart Fenwick, Senior Member
7 October 2021
BACKGROUND

FJTB applied to the Tribunal on 25 July 2021 for review of a decision of a delegate of the Respondent Minister on 8 July 2021 not to revoke the mandatory cancellation of his Global Special Humanitarian (Class XB) (Subclass 200) Refugee (Permanent) visa. The non-revocation decision was made under s 501CA(4) of the Migration Act 1958 (the Act), and the original cancellation decision was made on 28 February 2019 under s 501(3A) of the Act.
FJTB arrived in Australia with his family in 2004 at the age of six, with immigration documents listing his date of birth as a date in January 1998. FJTB was born in what is now Sudan, and as his parents were born in what is now South Sudan, FJTB is considered a national of the latter country. The family spent some time in Egypt prior to being granted visas for Australia as a family unit.
At present, FJTB’s family consists of his father (F), two younger brothers (B1 and B2), and two younger sisters (S1 and S2). B2 and the sisters are under the age of 18. FJTB has a first cousin who is considered a sister, having been adopted by his parents (S3). FJTB’s mother lost a baby daughter in 2012 and, following a resulting period of family dislocation, took her own life in October 2013.
FJTB has a history of several offences largely involving crimes of violence and the principal instance was in November 2017. This was a violent assault of a man FJTB believed had supplied heroin to and raped his brother, B1. The victim was severely injured and FJTB made full admissions when arrested. The assault was committed while FJTB was on bail, and he was sentenced to 45 months’ imprisonment. FJTB was found not suitable for a Youth Justice Centre Order.
FJTB lodged the following material:
(a)Statement of Facts, Issues and Contentions (SFIC) dated 3 September 2021, with Annexure A, being a submission on non-refoulment obligations;
(b)SFIC in Reply dated 13 September 2021, with attachments:
(i)Statutory Declaration of S3, dated 10 September 2021;
(ii)Annexure B, being a further submission on non-refoulment obligations;
(iii)Report of Dr Nina Zimmerman, forensic psychiatrist, dated 11 September 2021;
(c)Tender bundle comprising:
(i)Statement of FJTB dated 2 September 2021;
(ii)Statutory Declaration of FJTB’s employer, Witness 1 (W1) dated 2 September 2021;
(iii)Statutory Declaration of Witness 3 (W3) dated 2 September 2021;
(iv)Statutory Declaration of Witness 2 (W2) dated 1 September 2021;
(v)Obituary of FJTB’s mother;
(vi)Three articles from medical journals;
(vii)Statement of Royal Australian and New Zealand College of Psychiatrists; and
(viii)Corrections Victoria, 2019–2020 Drugs in Victorian Prisons (Report, January 2020);
(d)Bundle of letters (Exhibit A1) comprising:
(i)Uniting ReGen, dated 8 September 2021;
(ii)Orygen Youth Health, dated 6 September 2021;
(iii)Foundation House, dated 8 September 2021; and
(iv)Centre for Multicultural Youth, dated 9 September 2021.
The Respondent lodged a SFIC dated 10 September 2021, documents pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (as amended by s 500(6F) the Act) (G documents) and Supplementary G documents (SG documents).
LEGISLATION
Section 501 of the Act deals with refusal or cancellation of visas on character grounds. The Minister must cancel a person’s visa under s 501(3A) if satisfied the person does not pass what is defined to be the ‘character test’. This is defined in s 501(6)(a) to include circumstances where a person has a ‘substantial criminal record’. This, in turn, is defined in s 501(7)(c) to include being sentenced to a term of imprisonment of 12 months or more.
This mandatory cancellation may be revoked under s 501CA(4)(b)(ii) of the Act if the Minister, or the Tribunal on review, is satisfied there is ‘another reason’ that this should be done. Under s 499 of the Act the Tribunal must follow directions given as to the exercise of this power, being Direction No 90 ‘Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (the Direction), issued on 8 March 2021.
The Direction sets out primary and other considerations which will be described under the associated subheadings in this decision below. The Direction also states certain principles at paragraph 5.2 which provide the framework for decision-making and these provide as follows:
(a)Australia has a sovereign right to determine whether non-citizens of character concern are allowed to remain in Australia. Being able to remain in Australia is a privilege conferred in the expectation that non-citizens are, and have been, law-abiding; will respect the law enforcement framework; and will not cause or threaten harm to individuals of the community;
(b)Non-citizens who have engaged in criminal conduct should expect to forfeit the privilege of staying in Australia;
(c)The Australian community expects the Government to cancel a non-citizen’s visa if they engage in conduct that raises serious character concerns. This expectation ‘applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community’;
(d)Australia has a low tolerance of criminal or serious conduct by non-citizens who have participated in and contributed to Australia for a short time. However, Australia may afford a higher level of tolerance of such conduct if the non-citizen has lived in the community most of their life, or from a very young age;
(e)Decision-makers must take into account the primary and other considerations relevant to individual cases. In some circumstances, the nature of conduct, or the harm that would be caused if it were repeated, may be so serious that even strong countervailing considerations may be insufficient to justify revocation.
EVIDENCE AT HEARING
Applicant
FJTB stated that he has no memory of Sudan, is not aware of any family there, but believes his father may have siblings. He stated he has a good relationship with his younger sisters and younger brother.
He responded to the circumstances of his family tragedies in 2012–2013 with an ‘anger tornado’ and considered that ‘DHHS made everything worse’. FJTB stated that he had always relied on his late mother for emotional support and turned to drink and marijuana to dull the pain.
FJTB stated that he dropped school to help the family with bills, and was working part time jobs prior to studying carpentry. He worked for a year with W1 after being introduced by his friend Mr J, and stated that 90% of his wage went to the family.
When asked about his two most serious offences FJTB stated the ‘affray’ incident was not premeditated. He also stated that at the time he thought the victim was his enemy and considered people who ‘stuffed around’ with his family were his enemy. FJTB stated that it felt good now to say that it was nothing to be proud of.
With respect to his principal offending, FJTB stated the ‘old me’ would have said he did not care about it. Now, FJTB had his eyes opened to other ways of dealing with situations. This included getting advice from others, working with the authorities and getting more people involved.
When asked about incidents of poor conduct in prison, FJTB stated that it was an angry environment, and he acted out of anger. He stated that throwing a chair and spitting were no way to express his feelings. FJTB stated that after the most recent incident he told himself he needed to change or ‘this will be my life’.
FJTB stated that an anger management program had helped him to identify that an inability to let his mother go was the root of his anger. He has now also decided to take programs more seriously and has not had any conduct issues in immigration detention.
W1 has offered FJTB work on release, and also accommodation, and FJTB stated he could also stay with his friend Mr J. His objective, however, was to get his family back together in one household, including in particular his younger sisters. FJTB stated that he intended to obtain Department of Health and Human Services approval for this.
When asked to identify what would worry him if returned to South Sudan, FJTB stated that he would be unable to have a family. As he was unable to speak Dinka, he could not find someone to care about or obtain work. Directed to the fear of attack expressed in his written statement, FJTB referred to the experience of a friend who had returned. This friend had said the experience was ‘awful’ and he was robbed and beaten up for being a foreigner.
When further directed to his submissions to the Department of Immigration about violence targeting and the political situation in South Sudan, FJTB confirmed his understanding that there had been ‘constant war’ for the ‘last fifty years’. He stated his father had described a group called ‘The Rebels’ as responsible for raiding and running amok. Asked what would happen to him, FJTB stated that they would ‘end up killing him’.
In cross examination, FJTB explained that his father and brother, B1, were currently fruit picking in NSW. He stated that his brother, B2, was in ‘youth justice’ and awaiting trial. FJTB described his younger sisters as 15 turning 16 and 13 turning 14.
FJTB agreed that his younger sisters had been living with his older sister S3, but due to an issue with her relationship they moved to live with W2. If released, FJTB stated he would live with W1 or with his friend Mr J.
FJTB stated that Mr J had been working with W1 and introduced them on the prospect of work, which eventuated, in prefabrication of house frames. He had completed two levels of the certificate qualification.
When asked about psychiatric issues on commencing his prison sentence, FJTB stated that he had suicidal thoughts and was assessed and placed on medication which he took for about a year. He stopped of his own accord and the issue has not recurred.
FJTB stated that the first conduct incident in prison arose following a bout of wrestling with another prisoner following which he was accused of being ‘Apex’, which angered him. He slammed a door, was detained and spat in a guard’s face. As a result, FJTB was isolated for three months.
FJTB denied the other incident arose from his concern about what had happened to a friend in the community and denied saying this to a review panel (G, p 220). He stated that he became upset when invited to participate in a game involving ‘mumma’ jokes. FJTB stated he lost his temper and flipped a table.
FJTB agreed that following the period of isolation he realised he had reached his ‘breaking point’ and should change his ways. He had not yet had the opportunity in his two months of immigration detention to undertake any programs, but has put in a request to speak to a psychologist.
FJTB stated that he voluntarily undertook an additional drug and alcohol program following his isolation in prison. It taught him to separate his anger and sadness from his drinking, and he identified the same in respect of his marijuana use. He had also learned techniques of anger management in a one-on-one program. FJTB had undertaken a long session with a psychologist which taught him to ‘make a new you’. A further engagement with a psychologist was preparatory only.
In relation to future assistance, FJTB stated he has signed up with ‘STAR’ health and was on a wait list. He identified his future priorities as being to start a family and start a company, which he wished to do after returning to work with W1.
Asked about his criminal history, FJTB was unable to recall details in respect of offending in 2015. He stated that he only remembered ‘chapters’ of the affray and harass witness incident in September 2017. FJTB did remember holding someone’s hands while punches were thrown. He accepted the victim had been a friend previously.
FJTB agreed that he was on bail at the time of the principal offending. FJTB stated that he heard from his sister that his brother had been ‘injured’, meaning he had some weed laced with drugs and was then molested. FJTB texted the victim and then made inquiries with the victim’s girlfriend. He confronted the victim in anger and when the victim pulled a knife it was kicked away, and the assault occurred.
Asked to expand, FJTB stated that the victim was his marijuana supplier and that he understood he had been trying to get FJTB’s brother, B1, onto heroin, in order to extract money from him. When asked about his intention at the time, FJTB said he had hoped it was a joke but the situation ‘got serious quick’.
When prompted about the circumstances further, FJTB agreed that the victim was not initially at home and that he had left the property to go and smoke weed before returning. FJTB punched the victim in the face, swept his feet out from under him and instructed his companion to fetch a claw hammer from the car they arrived in, forming part of his work toolkit.
FJTB stated that the assault was not premeditated but that he was really angry and trying to seek revenge for his brother. Asked why he stopped, FJTB stated that he blacked out and could remember bits of the event, including his mate pushing him off the victim and then jumping in the car. FJTB did not recall stating to police that he wanted to put the victim in a wheelchair.
When asked to reflect now on his actions FJTB stated that he asked himself whether his brother had been lying, or whether he had scarred the victim for no reason, or whether he should have left the matter to his father. I asked FJTB to expand and he stated that his father had tried to get the police involved.
FJTB stated that if he must return to South Sudan then ‘it is what it is’ and he accepted that as a death sentence. Asked whether he had any plans, FJTB stated there is ‘literally nothing I can do’. He restated his fears as being the inability to have a family, and robbery and death. Asked to expand on his fear of being attacked, FJTB referred again to the experience of his friend who had returned. He understood that this friend had been sent back by his parents as a ‘life lesson’ and that it had worked. Asked to expand further, FJTB stated that his friend had visited Khartoum and Wau.
When asked to explain his fears about the difficulty in having a family, FJTB stated that he does not know the culture or how anything works. FJTB stated that he would stand out with his Australian accent and was fearful of walking down the street.
With respect to getting his family back together in Australia, FJTB stated the major things were to get a stable job, and to sort out his living arrangements. The main thing was to get his sisters and be together all in one family, including with his father.
In re-examination, FJTB stated his understanding of the need to keep away from his old social circles, and said that he has not been in touch with them. FJTB does not plan to abstain from alcohol, but will use the skills he has learned and will continue with support.
W1
W1 confirmed that FJTB had worked for him from 2016 for just over a year, full time. Having checked FJTB’s payslips he stated the Applicant worked 50 to 60-hour weeks including time on weekends, confirming also he had spent a lot of time with him.
FJTB was always on time, had a good attitude, learnt well and was ‘spot on’. He worked well in the team and as W1 had a zero-tolerance approach to drugs and alcohol this had not been a problem. W1 stated that FJTB’s salary initially went into his father’s bank account and he understood that the money went to his family, noting he had even seen FJTB wearing work clothes on the weekends.
W1 confirmed that he was aware of FJTB’s offending and later visited FJTB in prison during the first year. He did not know FJTB had moved to immigration detention as he had been waiting for a call to go and pick him up. W1 stated he would definitely put FJTB back on at work, and he was holding a place in his team for him.
In cross examination W1 was unable to explain the circumstances of FJTB’s principal offending other than it involved his brother, and that he understood there was trauma associated with his mother. At work, FJTB was fun to be around and was a hard worker.
W1 stated that discovery of the offending was ‘definitely’ a shock. He had spoken to FJTB who realises he would now have his carpentry qualifications if he had not offended, and advised him to do the right thing and not play up. W1 stated he has offered FJTB the opportunity to stay at his house until he gets back on his feet, as he has spare rooms.
I asked W1 to clarify FJTB’s apprenticeship training. He stated that FJTB has completed the first of three years, that he had asked the training institution to pause his enrolment and that he intended to take FJTB through to qualification.
S3

S3 described FJTB as previously being a good role model to his brothers and sisters, and supported them financially. FJTB had also made school lunches for his siblings. Her father’s mental health had suffered and he had found it hard to move forward, and FJTB had helped the family.
S3 stated that the younger sisters had always talked about FJTB when he went into prison and had initially visited him, but were upset at not being able to visit when he was moved.
With respect to future housing, S3 stated that FJTB’s plan to bring the family into one household was the only option as she does not have secure housing. Presently, one of the younger sisters is in foster care and one in kinship care. She believes the family can support each other in one house.
S3 stated that she has an older child (C1) aged 4 years, who is not presently living with her, because she is still living with her current partner, and father to her youngest child C2, aged 2 months. She does not intend to stay in this relationship long term. S3 stated that C1 had met FJTB, but her youngest has not. She would like FJTB to be a role model to her children.
S3 stated that they do not have family connections in South Sudan and that this would isolate FJTB. He has lived in Egypt for four years and otherwise his life is in Australia.
In cross examination, S3 stated that as a child FJTB understood Dinka but did not speak the language. In Australia she and FJTB had learned English faster than their parents and used it at home to teach them. She stated her father had tried to lecture them in Dinka but ended up saying ‘guys you don’t know your own language’, so it did not work.
S3 stated she had been unable to communicate with her father for some months due to his work, but understood that he intends to return to Victoria should FJTB be released. Her father does not have housing in Melbourne at the moment.
S3 stated she is confused about the arrangements with the younger children. She stated that her daughter is living with W2 in a private arrangement, along with S2.
Prior to the principal offending, S3 stated B1 had been an inpatient for three months due to a psychiatric trauma following the death of their mother. On the day of his release, S3 confirmed that B1 had told her and FJTB about what had happened to him. FJTB had come home from work early, and initially did not believe the story.
S3 said she had been in contact with FJTB via calls and Facebook messages in recent times. She said FJTB had been talking positively. The younger sisters were looking forward to seeing him and had saved money in a piggy bank to throw a party on his release.
In re-examination, S3 stated that she considered FJTB would be a positive influence on B2 when he comes out of detention. B2 had saved $5,000 for FJTB to buy a car and personally would like to finish High School.
W2
W2 confirmed that she recently had care of the younger sisters, but that S1 was no longer with her. She stated that she had tried to keep FJTB’s location in prison from the girls so they could focus on school. More recently she had discussed with them what it means for FJTB to be in detention.
W2 stated she has had a long chat with FJTB about his plan to get the family back together. She has told him to focus on getting out, to be a good boy and that possibly, with the right support in place, he may be able to achieve that.
Asked if she would provide support, W2 stated that she would if FJTB reached out to her. She stated that, ideally, the father of the girls would like them to stay with her, but accepted that certain things are beyond her control. W2 stated she would still be there to advocate for the family.
W2 stated that she believed the kids want to be together as a family, and had tried to live with S3. The issue was who could provide them with security. FJTB had got into trouble trying to protect a sibling and had done a lot for the family. It was for them to heal as a family, not for someone outside to do this.
In cross examination, W2 explained that she has a background as a counsellor for survivors of torture and trauma, has also worked in the justice system with high-risk offenders, and has prior experience working with refugees and mental health.
In her opinion, W2 considered that FJTB’s family had suffered the impact of inter-generational trauma. This was based on their experiences prior to arrival in Australia, and also with the loss of their mother.
W2 stated she met the family through her sister but became heavily involved herself after meeting them in 2015. Out of good will and concern for the male environment in the family, her sister started taking the girls on weekends. W2 considered the girls vulnerable in that environment and went to the house to meet FJTB. She had a chat with him and thought he was trying his best in the face of a lot of difficulties.
Late in 2019, W2 went to the house on the urging of her sister and found ‘chaos’, and the state authorities had become involved with the family. W2 took care of the girls for two months and they were then placed with S3. Issues emerged in mid-2020 and W2 could ‘not say no’ to the further care of the girls. The older of the two experienced behavioural difficulties and the state authorities had again become involved. Presently, she has care of S2 and C1.
In relation to the important role played by FJTB around this time, W2 stated that there was a cultural tradition that the first born is considered responsible. At this time FJTB was cooking, sweeping, and getting the children to do chores. The father had issues with drinking and also experienced health issues. I sought clarification and she described these issues as being overweight, diabetes, cholesterol, and breathing and sleeping difficulties.
W2 stated that FJTB had paid attention to the needs and development of the girls and had encouraged them to listen to her as an ‘auntie’. Equally, she had confirmed with FJTB the nature of his conversations with the girls and had stated that he was available for them to talk with. She described them, respectively, as ‘visitors to each other’ due to the period of separation and there being a need to restore the bond between them.
Asked about the prospects for the future plans of FJTB, W2 stated that while the girls may not appreciate it, she strongly believed in having FJTB involved in their lives and having an older brother who cares. The older sister currently believes that no one cares about her and needs a longer-lasting engagement than provided by foster care. If FJTB is there, the family can come together under the protection of their brother.
W2 stated that she had spoken to the father about the situation with his children. She understands that he is working to be able to start afresh but currently does not have stable accommodation. He has expressed to her his desire to play a direct role in the care of his children, and W2 has explained to him that this may not be easy.
W2 stated that F considered the removal of FJTB would kill him as he places all his hopes for the family on his son.
In re-examination W2 stated that she thought FJTB now sounded more mature and confident. She stated that he thinks about the next five years and has a goal.
W2 described the situation in South Sudan as ‘horrible’. She understood that deportees are treated badly as people do not understand why they left and then came back from a place where they were not wanted. These people are extorted and discriminated against.
W2 stated that she has family living in a refugee camp in Uganda and that her family is from that border region. She understood that people from F’s region had been displaced as well. She stated that life in the Capital is not enjoyable and there is much robbery including by police and armed forces. W2 also stated that access to the health system is possible if people have money.
W3
W3 stated that it is embedded in culture for older siblings to step in and care for younger children. He had observed FJTB step up when younger and in fact oppose child custody arrangements, move back into the home, bring the children back together and provide financial and emotional support.
W3 stated that he understood F to have told him that there was a plan to bring the family back together. W3 stated that F had struggled since the death of his wife and believed that FJTB had already demonstrated when younger what he could do to bring the family together.
Asked about the reference in his statement to child protection arrangements, W3 confirmed that he has been personally involved in care team meetings concerning the children. These meetings involve all providers and are to discuss the way forward. W3 stated that he was involved as the counsellor to F.
W3 stated that the focus at the last team meeting was the recent break down of the care arrangements for the girls, and that he raised the possibility of FJTB taking over. He stated that he was told by state authorities that FJTB could be considered for a carer role if he were out of prison. W3 stated the authorities are struggling to find a foster carer and will place children out of the community if an immediate family member is not available.
In relation to the possible return of FJTB to South Sudan, W3 considered that FJTB would not do well at all because he had never been in that environment. FJTB was born in the North and grew up in Australia. He stated there is no one who can help FJTB and he does not speak the language. While South Sudan is formally an English-speaking country, this has not materialised in reality.
W3 stated that FJTB coming back as a foreigner having been deported from Australia means that things would not go well. He was uncertain about the employment situation but thought there were no jobs, and stated there is no government support.
Asked to expand on the issue of FJTB being foreign in South Sudan, W3 stated that the country is very politicised, there is tribal warfare, and many rebels ‘in the bush’. He stated the post-conflict settlement agreement has not been implemented. W3 stated that if you are in the wrong part of the country you will lose your life.
W3 stated he knew the situation because he follows events very closely and also maintains currency via social media, and has good insight developed from academic research into the South Sudanese community.
W3 stated that he considered himself able to take risks and had returned from South Sudan, most recently in 2018. W3 stated that he has close family members in South Sudan but that he was not in a position to help make arrangements for FJTB’s safety.
In cross examination, W3 confirmed the proposition in his statement that two important factors for FJTB were to be responsible, and being able to care for the children. He did not consider that FJTB’s past wrongdoing was a bar to his future involvement.
Asked if he considered FJTB able to care for his sisters, W3 stated that he had done so in the past. FJTB had also advised his father during his visits to prison that he would resume work and was willing to engage with state authorities.
As to whether FJTB could care for the sisters now they are older, W3 stated that he believed the sisters have had behavioural issues because they have no role model. W3 stated that research consistently demonstrates that children do well with the family.
Asked whether he also considered W2 to be a good role model, W3 stated that ‘everyone has their own struggle’ and that there is no alternative to the girls’ own brother. He did not consider going to prison meant that FJTB could not show responsibility.
With respect to his own time in South Sudan, W3 clarified that he spent time 1,000 km to the North West of Juba in a village that was not on the map. He flew from Juba to Wau and relatives took him to the village. W3 maintained, following his statement, that even Juba is very violent. He stated that he knows a lot more than is reported in the media and that there are kidnappings, fuel shortages and unknown gunmen.
W3 stated that in order to be safe he was able to keep a low profile so as not to fall victim to criminals. He sought to blend in and was accompanied by relatives, and he ‘dressed like anybody’ so as not to be a target.
W3 stated that the illiteracy rate in South Sudan is the highest in the world. English only became mandated after 2011 and has not been embedded in the education system, it is a work in progress. When prompted to consider that Juba was the government base and home to United Nations and other organisations, W3 maintained that English was the language of the elite only.
Dr Nina Zimmerman
Dr Zimmerman noted that she had identified a discrepancy in the date of birth of FJTB provided in different sources, but that this did not affect her assessment (FJTB being identified in Police records as being one year younger than his actual age).
Dr Zimmerman stated that it was pleasing to note FJTB had not used drugs in prison but had used alcohol on a small number of occasions which he was open about. The key factor for the particular assessment instrument was substance use in the past 6 months, which was not the case here.
Dr Zimmerman stated that she always asks people to reflect on their offending. In this case FJTB’s response took her a little aback, given his candid response that if asked two years ago he would not ‘give a fuck’. This attitude was consistent with the police material, whereas FJTB was now horrified by the degree of violence used, and could not get the image out of his head. Her sense was that he is open and honest and able to reflect in a different way. This was a positive factor in her assessment of risk.
With respect to conduct in prison, Dr Zimmerman stated that aggression was an adaptive behaviour to that setting. She considered that FJTB was conscious of the power differential with officers, and experienced relief with his transfer to immigration detention; an environment where staff would shake his hand.
Dr Zimmerman stated FJTB is very much open to seeking professional help but has no abnormality of mental state.
Asked how a period longer than the 18 months since an incident of violence noted in her report would affect her assessment, Dr Zimmerman stated that the longer that period the better.
Dr Zimmerman accepted that an offer of immediate employment and accommodation would ‘absolutely’ strengthen her confidence in her risk assessment, having previously noted the likelihood of accommodation as ‘partially present’.
Dr Zimmerman confirmed that she has identified the potential for FJTB to face stressors if returned to the community, even noting that supports may be available. She considers FJTB has a network of professional and non-professional supports available which is a ‘very positive thing moving forward’.
In relation to alcohol use and the risk of reoffending, Dr Zimmerman stated that the question was how alcohol may have been harmful in the past. Here, it was associated with peers and this needs to be addressed and services can provide relapse strategies. The professional view is one of harm minimisation, so appropriate moderate drinking was possible.
Dr Zimmerman maintained her view that FJTB poses a low risk of violence and this opinion was ‘strengthened’ knowing that there was an offer of accommodation if released.
Noting FJTB’s prior history of mental health issues, Dr Zimmerman was asked whether a prospect of indefinite detention raised a risk of deterioration of his mental health. She responded that there was a greater impact on mental health the longer a period of detention. Indefinite detention carries its own risk in this respect given the absence of an end date. Given the risk factor represented by his mother’s death, Dr Zimmerman stated that she would be concerned for FJTB.
Dr Zimmerman stated that return to South Sudan would carry very severe stresses and, given the standard of health services, there was a low chance of any subsequent issues for FJTB being addressed.
In cross examination, Dr Zimmerman confirmed she had not determined that FJTB had any diagnosable mental health conditions.
Dr Zimmerman further confirmed that while FJTB told her he had consumed alcohol and cannabis at the time of the principal offending, she had not identified any supporting evidence for this information.
Dr Zimmerman was asked to expand on several risk factors identified in her report. She stated that a history of anti-social (non-violent) behaviour was of less significance. FJTB’s substance use was associated with his period of offending, and was relevant because he was disinhibited when affected. The factor of trauma was related to the collapse of the family. Dr Zimmerman described these as a cluster of factors that led to his offending.
Asked about concerns expressed in her report about cognitive function, Dr Zimmerman stated FJTB was not severely impaired and was able to use language to express himself. However, if she were a treating practitioner, she considered a formal assessment would be appropriate. FJTB’s history indicated he was able to function well until the personal losses experienced in his mid-teens.
Dr Zimmerman considered FJTB’s history of violent offending to form a cluster, and they appeared to follow his mother’s death. She accepted there was other violent offending with peers.
Asked whether FJTB’s more recent history of good conduct was associated with the visa cancellation process, Dr Zimmerman stated that the process itself provided an additional motivating factor. Dr Zimmerman stated that FJTB’s recent contact with service providers indicated that he may be motivated now in a way he has not been in the past.
PRIMARY CONSIDERATIONS
I am satisfied that, as a result of his criminal record (G4, p 26–27), FJTB does not pass the character test and, accordingly, I must consider whether there is another reason to revoke the mandatory cancellation of his visa.
The Direction establishes four primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.
Protection of the Australian Community
This consideration is prefaced with the statement that decision-makers should keep in mind the Government is committed to the stated objective, and should therefore have regard to the principle that remaining in Australia is a privilege conferred in the expectation non-citizens are, and have been, law-abiding, will respect institutions, and not cause or threaten harm to individuals or the community (paragraph 8.1(1) of the Direction).
There are two limbs to this consideration which I address under the following sub-headings.
Nature and seriousness of the non-citizen’s conduct to date
This limb embraces both past criminal offending and also ‘other conduct to date’, and the range of crime or conduct to be considered is not limited to those specifically addressed in paragraph 8.1.1 of the Direction. The Direction requires decision-makers to view violent crimes ‘very seriously’ (paragraph 8.1.1(1)(a)(i)). Specific factors identified include the sentence imposed by a court (paragraph 8.1.1(1)(c)), the frequency or any trend of increasing seriousness of offending (paragraph 8.1.1(1)(d)), and the cumulative effect of repeated offending (paragraph 8.1.1(1)(e)).
FJTB had one appearance in a Children’s Court in 2015 on a matter for which no conviction was recorded, and a further instance of offending was dealt with in 2019 (G4).
Criminal offences
FJTB’s adult criminal offending comprises several matters arising from two incidents when he was aged 19 (G4). The first incident occurred in September 2017 following which FJTB was charged with affray and harass witness. FJTB was bailed and plead guilty when these charges were first dealt with in December 2018, as well as a further charge of recklessly deal with proceeds of crime. The first two matters were appealed and subsequently dealt with by the Melbourne Country Court in March 2019.

While on bail, FJTB committed an assault in November 2017 for which he was charged with intentionally cause serious injury, and two breach offences. FJTB also plead guilty to these charges and was sentenced in the Melbourne County Court in October 2018 to 45 months’ imprisonment for the serious injury offence, and one month concurrent for each breach offence. In March 2019, FJTB was sentenced 6 months aggregate on the earlier, appealed, charges, three months of which were concurrent with his sentence for the serious injury offending.
From the transcript of the appeal in relation to the affray and harass witness charges (G6), I note:
(a)The affray was a serious example of that crime and was related to the harassment of a potential witness, and it was admitted by FJTB’s counsel that he was aware at the time that the victim was a witness;
(b)FJTB held the victim’s arms while he was ‘pummelled’;
(c)The victim appeared to have been targeted for naming associates to police, evident also from comments made during the affray including ‘you’re dead, you snitching nigger’, which made it a serious instance of the crime;
(d)The chronology of FJTB’s offending was ‘greatly worrying’ in that he went on to commit the serious injury offence, which the sentencing judge considered showed a ‘disturbing preparedness to commit violent offences’ notwithstanding his young age;
(e)The sentencing Magistrate had intended to add three months to FJTB’s then existing sentence for the serious injury offence, which the judge of the County Court considered insufficient;
(f)The judge took into account FJTB’s guilty plea, cooperation, youth, family background, visa cancellation, conduct in prison and took a guarded view as to prospects of rehabilitation; and
(g)Despite considering the total original sentence of six months aggregate to be ‘extremely modest’, reimposed that sentence with three months cumulative on the existing sentence. In the absence of a guilty plea a sentence of 15 months with no non-parole period would have been imposed.
Building from the elements of the principal offending exposed in the summary of oral evidence above, I note the following points from the remarks of the sentencing judge (G5):
(a)FJTB had known the victim for five years and the victim was also an associate of B1;
(b)FJTB and an unknown associate went to the victim’s house and, finding him not at home, drove a short distance to await his return;
(c)On his return a conversation ensued, and the victim wanted to resolve the problem, believing that B1 had lied to FJTB;
(d)FJTB punched the victim and during a struggle asked his associate to ‘get the hammer’, and after a struggle the victim was knocked to the ground;
(e)The victim was struck in the head with the hammer and became semi-conscious, and FJTB then struck him on the legs leading to the charge of causing serious injury intentionally;
(f)The assault continued for some time and FJTB and the associate left after a nearby resident intervened verbally;
(g)No weapons were located at the scene but in the police interview, FJTB asserted the victim pulled a knife early in the altercation;
(h)FJTB admitted to punching the victim, smashing his knees with the hammer, and kicking him in the head;
(i)FJTB told police that he wanted to put the victim in a wheelchair, and had accidently hit him in the head;
(j)The victim suffered a fractured skull, facial fractures, a tiny traumatic subarachnoid haemorrhage, and a right femoral condyle fracture for which he received surgery, and a knee splint;
(k)On the day of the offence, FJTB was on bail for other offending and due to report to police, but did not;
(l)FJTB had a history of illicit drug use including cannabis, Xanax, ecstasy, GHB and alcohol;
(m)A psychiatric report identified a cognitive deficit, without providing an analysis of testing, as well as Mixed Personality Disorder and Mixed Substance Abuse Disorder but there was no strong indication for medication;
(n)FJTB was in adult remand pending sentence with good and bad behaviour, and was assessed and found unsuitable for a Youth Justice Centre Order because he may adversely impact young men in the system;
(o)It was noted that FJTB had little insight into the offending, prospects of rehabilitation were guarded, and he showed no empathy for the victim; and
(p)A non-parole period of two and a half years was set and, in the absence of a plea, a sentence of five years and three months would be been given.
Incidents in custody
Documents obtained under summons identify a number of incidents while FJTB was in custody. While there is a reference to a total of six incidents in a case management review committee report of June 2018 (SG1, p 233), this same report identifies two incidents of acts of aggression, no time in management since February 2018, and participation in an anger management program. There are two further reports of July 2018 (SG1, p 228–229) and October 2019 (SG1, p 220–221) concerning FJTB’s conduct. In the first he is said to have thrown a chair and slammed a door, and was then restrained. In the second he is reported to have described a confrontation that led to wider violence and lockdown as being related to something that happened to a friend outside. The latter report also notes possession of 4 litres of home brew.
In his written statement FJTB states that he was last involved in an incident of aggression in early 2020 (at [24]). A November 2020 case management review committee report refers to an incident in March 2020 (SG1, p 204), and states FJTB could not recall the incident. There appears to be no other record about this matter. FJTB acknowledges in his statement being involved in ‘some incidents early on’, being small fights and incidents of aggression.
Consideration and finding
It was submitted on FJTB’s behalf at the hearing that it was accepted that his offending was violent and therefore should be deemed serious, and a significant sentence had been imposed in respect of the principal offending. It was also submitted that there were only two incidents of offending and therefore no increasing trend of seriousness could be identified. FJTB’s representative also submitted that the nature and seriousness of his offending encompassed peer group pressure with respect to the first charges.
It is submitted in the Respondent’s SFIC that FJTB’s offending was very serious, with a clear and significant trend of increasing seriousness. This position was maintained in oral submissions at the hearing.
I am satisfied that FJTB has been convicted of two crimes of violence, one very violent. I accept that it is difficult to identify a trend based on two instances, which were close in time. However, I accept that the evidence demonstrates that FJTB was the instigator and key actor in the principal offending. I accept that it was planned and executed with intent to cause serious harm.
Guided in part by the Direction, but also by the nature of the offending as set out in the evidence, I consider that FJTB’s offending should be considered very serious.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
This limb states that decision-makers should have regard to the Government’s view that community ‘tolerance for any risk of future harm’ becomes lower as the seriousness of potential harm increases (paragraph 8.1.2(1) of the Direction). The Direction specifies the following factors are to be given regard to, cumulatively (paragraph 8.1.2(2), in summary: the nature of harm should the non-citizen reoffend; and the likelihood of further criminal or other serious conduct, taking into account information and evidence of risk and rehabilitation.
In his statement, FJTB states that the victim of his principal offending had been ‘selling heroin to young kids’ as well as his brother (at [20]). He acknowledges that he now knows there are other ways to deal with such a situation (at [21] and [22]). FJTB also states that he thinks about the possibility that the victim may not have acted in the way that FJTB thought at the time (at [23]).
A record of a case management review committee at Marngoneet prison in March 2020 (SG1, p 209) also reports a similar narrative. FJTB is said to have claimed that the victim had been ‘going around his neighbourhood giving the kids heroin in the school yard and around the streets’ and that he acted because the police were not taking action.
Records of programs undertaken by FJTB are found at G18–G24. They include programs addressing alcohol and drug use, and anger management, as well as several vocational certificates.
In his statement (at [28]–[36]) FJTB reports: completing over 20 hours of drug and alcohol therapy; not drinking alcohol since he was found with home brew in 2019; managing to stay away from alcohol and drugs in prison; working as a cleaner within prisons; and completing work safety and first aid courses, and other work related programs.
Largely consistent with his evidence at the hearing, FJTB also asserts in his statement (at [44]–[51]): his intention to avoid his prior associates; attend all counselling offered; see a psychologist for trauma; and not to take independent action in defence of his family again.
In addition to the evidence of Dr Zimmerman above, I note the following from her report:
(a)FJTB has good insight into the link between his history of grief and loss, his use of alcohol, and dysregulated expression of anger and his offending (at [156]);
(b)His plans for future professional service support are described as realistic, explicit and specific, he has a good personal support network, and compliance and responsiveness to treatment/supervision in future is not likely to pose a problem (at [160], [162], [163]);
(c)His difficult family situation means FJTB is likely to face significant stressors on return to the community, he has indicated an increasing ability to regulate his emotions, and ongoing abstinence will increase his ability not to react impulsively, but he has no current areas of need (at [164], [168]); and
(d)The magnitude of risk (low) can be further reduced through engagement with drug and alcohol counselling, psychological counselling and pro-social accommodation, with employment providing financial security and self-esteem (at [170]–[173]).
Consideration and finding
In FJTB’s SFIC and SFIC in Reply, the following additional matters are submitted in relation to this issue:
(a)The circumstances which led to the principal offending are highly unusual;
(b)His offending occurred in a confined space of time, and the contributing factors no longer subsist;
(c)FJTB has learnt a salutary lesson through imprisonment and the prospect of deportation or indefinite detention is a strong deterrent to future offending;
(d)SG documents identify FJTB as having engaged well with staff, and no charges followed from the two incidents of violence, and he has not had a conduct issue for 18 months; and
(e)FJTB is a low risk of reoffending, and robust supports available further reduce this risk, and it should be afforded, at most, limited weight against revocation.
Submissions at the hearing on FJTB’s behalf highlighted the following factors: FJTB’s sustained reflection; his maturity; the motivation and incentives he has to refrain from offending, being his plans for the family unit and the prospect of deportation; and, his recent good conduct. It was submitted there was no concrete material advanced concerning the March 2020 incident, which FJTB has not been able to recall.
In the Respondent SFIC, it is submitted that efforts at rehabilitation and good conduct sit against a background of violent offending, and the guarded opinions in sentencing. It is also submitted that FJTB faces undoubted challenges if released and there being a very real risk of him resorting to violence. Accordingly, the consideration should be given heavy weight against revocation.
At the hearing it was submitted that FJTB’s change of mindset and new appreciation of the nature of his offending coincides with the cancellation process in play from February 2019. The Respondent did not question the genuineness of FJTB’s attempts to change, but highlighted that he had not been tested as yet. It was also submitted that some concern arises from FJTB’s challenge to the explanation for the most recently documented incident in prison in September 2019.
It was also submitted on the Respondent’s behalf that FJTB’s plans centre on a scenario that has no clear prospects of success. Not only is the outcome in respect of care of the children not clear, but the evidence indicates that his siblings face particular challenges, behavioural for S1, the criminal process for B2, and mental health issues for B1. Moreover, his siblings are now older which may present a different challenge that he faced when younger.
I am not particularly confident that FJTB has in fact fully grasped the seriousness and consequences of his criminal offending. Most importantly, I consider FJTB’s apparent desire to present his principal offending as some form of vigilantism to be of concern. This narrative was not tested at the hearing, therefore I will not place weight on it either for, or against, FJTB. Nonetheless, it, along with the thrust of the written and oral evidence overall, points to FJTB only having a relatively limited insight into the serious nature of his violent offending. Indeed, his recall of this other instance of criminal violence also lacked some detail, and indeed empathy.
I note the fact that FJTB gave evidence that he has developed a clear motivation for good behaviour, albeit relatively recently. Along with this he has clearly come to an understanding of the causes of his offending, with minimal professional input.
I accept the expert evidence, which was thoroughly tested at the hearing, that FJTB presents a low risk of reoffending. I also accept that this assessment emphasised that there are particular and immediate supports available to FJTB that should operate to further lower this already low risk.
I will address the issue of the future family environment further below, but note that it is not a guaranteed eventuality that FJTB will succeed in attaining the role of head of household. This may mitigate somewhat the impact of the challenges, albeit he would most likely still fulfil a prominent and possibly critical role, whether or not living under the same roof as his siblings.
As noted above, FJTB’s offending does appear to have been confined to a particular time period. I accept that his conduct at that time was, in a broad sense, a product of a dysfunctional environment and family tragedy. However, there is limited evidence, if any, that the principal offending was attended by mitigating factors, particularly alcohol or drug use. Also as noted above, it was planned, and indeed somewhat sustained given there was a need to wait for the victim to return.
Given these considerations, I find that there is a quite low level risk of FJTB reoffending in a violent manner, but that there would be serious consequences for any such reoffending.
Summary finding
Taking into account the summary findings under the two limbs of this consideration, I am satisfied that this consideration weighs strongly against revocation.
Family violence committed by the non-citizen
Paragraph 8.2 of the Direction identifies concerns in respect of circumstances where a non-citizen is convicted of an offence related to family violence, and/or independent and authoritative evidence points to the perpetration of family violence.
There is a limited amount of material before me in respect of a pushing incident involving FJTB’s father at some point in the past. However, this does not rise to the level contemplated in the Direction, and I note both parties submitted that this consideration is not engaged in this matter.
Accordingly, I give this consideration neutral weight.
Best interests of minor children in Australia affected by the decision
Under this consideration decision-makers must make a determination whether non-revocation is, or is not, in the best interests of a child affected by the decision (paragraph 8.3 of the Direction). This consideration applies only to children aged under 18 at the time of the decision, and relevant children should receive individual consideration to the extent their interests may differ (paragraphs 8.3(2) and (3)). The following factors must be considered:
(a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen’s ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
FJTB has two younger sisters, and a younger brother, all of whom are presently under the age of 18. B2 is to turn 18 in November. There are varying ages for the younger sisters, but I take their ages to be approximately 13 and 15. I will also address S3’s children.
Younger sisters
In his statement, FJTB states that he has maintained very regular contact with his sisters while in prison and provided them with advice. He also states his intention to work and keep the family together and ensure the sisters attend school and stay out of trouble.
An undated letter from the sisters is in the materials (G10), and formed part of the considerations by the delegate in the decision under review. It describes FJTB as the ‘primary earner’ for the family. It does not refer directly to the relationship between the sisters and FJTB, but does state that the family would be negatively affected by his deportation, and that he himself would suffer hardship.
In the Applicant’s SFIC and Reply, it is submitted that FJTB will be able to fulfil a parental role for the children, and that this is particularly important given that the family is currently in a period of crisis.
At the hearing, there was some emphasis placed on the cultural significance of the role of the eldest child. It was submitted that whether he succeeded in playing a direct parenting role, FJTB would play an important role in the lives of his sisters. While direct care is not a certainty, it is a prospect, noting that it might be argued that the sisters are at risk.
It is submitted in the Respondent’s SFIC that weight should be afforded in favour of revocation in respect of FJTB’s sisters, noting the lack of direct role during his time in prison. At the hearing there was uncertainty as to outcomes in respect of care arrangements, and the sisters are currently cared for, albeit separately. Whether or not it eventuates that FJTB obtains care, it was submitted that he would play a role in their lives.

I accept that FJTB has formed a genuine commitment to play a direct caring role for his sisters in the future, and has played a critical breadwinner role for them in the past.
B2
The materials also include an undated letter from B2 (G13). This does not reflect upon their relationship, but rather expresses general concern for the family given the prospect of deportation.
It was submitted at the hearing on FJTB’s behalf that, in addition to the cultural role of eldest child, FJTB would be a role model for B2, even while in custody.
It was submitted on the Respondent’s behalf that this brother’s circumstances and age means that there is a limited opportunity for FJTB to exercise influence on him.
The evidence in respect of B2 was not at all comprehensive. I accept however that he is in custody and appears likely to remain in that situation for at least the immediate future. I accept the evidence advanced that indicates B2 has saved money for FJTB.
Children of S3
The evidence indicates that FJTB has had some exposure to S3’s daughter, but for the majority of her life he has been in custody. FJTB has not been exposed at all to S3’s infant son.
The evidence of S3 was to the effect that she intended to join with the wider family as a unit. If so, I accept the realistic possibility that FJTB would adopt an indirect care role for these minor children.
It was submitted at the hearing that non-revocation would deprive these minor children of FJTB as a role model. It is submitted in the Respondent’s SFIC that limited weight should be afforded the interests of these children.
Consideration and finding
It is submitted in FJTB’s written materials that this consideration should weigh powerfully in favour of revocation, and indeed should have dispositive weight. I have noted above the varying weights placed in the Respondent’s SFIC on the different minor children.
A significant amount of evidence addressed FJTB’s determination to bring the family together. I do not have before me a comprehensive body of evidence as to how such a path might be pursued, nor any independent opinion to assist in forming a judgment as to the likelihood of this arrangement eventuating. However, I consider the balance of evidence and weight of submissions overall favour a view that FJTB will pursue this course, and may well have a reasonable chance in succeeding.
That said, to focus only on that possible future scenario would be taking an unnecessarily narrow view of the evidence informing this consideration. That is, in default of living together under the one roof, I accept that FJTB’s plans for employment and rehabilitation will permit him to play an important role in the lives of his siblings, and the other minor children. It may well be that were he not to succeed in his plans for a household, that he would still play a very important role as the older sibling, in advising and monitoring the progress of these minor children, particularly his sisters.
Indeed, the evidence tends to indicate that the father of the children, F, has experienced substantial difficulties of his own, has not had care of his children for periods of time and, to an extent, has vacated the parental space. This may be due to restrictions concerning his own care capacity, although I have no clear evidence as to exactly what limitations may be, or have been, in place. Nonetheless, the family dysfunction is clearly substantial, and F has been unable to maintain a household or prevent the involvement of state authorities.
Equally, the evidence demonstrates that FJTB’s older sister has been unable to play a stabilising role in the family, and has been unable to retain care of her own child. For these reasons, the presence of FJTB in the community alone offers the prospect for the wider family of him obtaining a wage earner, and someone who has some potential to provide stability, whether directly or indirectly.
Given the above considerations I make the following separate findings in respect of minor children:
(a)Younger sisters S1 and S2: the interests of these minor children weighs strongly in favour of revocation;
(b)B2: given the uncertainty of his prospects in the justice system and it being a matter of months before he turns 18 the interests of this minor child weigh very slightly in favour of revocation;
(c)Children of S3: the slight engagement to date between FJTB and these children is outweighed somewhat by the instability in care they face and therefore the interests of these minor children weighs in favour of revocation.
Accordingly, overall and taking the interests of these categories of minor children and each child individually into account, I find that this consideration weighs very strongly in favour of revocation.
Expectations of the Australian community
This consideration is founded on the stated community expectation that non-citizens obey Australian laws (paragraph 8.4(1) of the Direction). On this basis, the consideration establishes, as a norm, the expectation that the Government will not allow a non-citizen to stay if they have breached the foundational expectation, or where there is an unacceptable risk that they may do so.
The application of the expectation is said to be strengthened in circumstances involving specific kinds of conduct, none of which arise in the present matter (paragraph 8.4(2) of the Direction).
The expectation applies ‘regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community’, and decision-makers are not to undertake an independent assessment of community expectations in the particular case (paragraphs 8.4(3) and (4) of the Direction).
The parties’ submissions are broadly consistent on this consideration to the extent that they indicate that in circumstances where the expectation is engaged, the Tribunal must determine the particular weight to be given this consideration.
The Applicant’s written submissions stress that in determining this weight, the circumstances in which FJTB’s offending occurred must be considered. These include: the amount of time FJTB spent in Australia; his underlying trauma; the belief held at the time of the principal offending; his relative youth at the time; FJTB’s steps to rehabilitation; considerations around breach of non-refoulment obligations and indefinite detention; and a higher tolerance said to be afforded a member of a refugee family.
At the hearing it was also contended on FJTB’s behalf that consideration should be given to his plea of guilty, acceptance of responsibility and the impact of family tragedy on this offending. It was submitted that moderate weight against revocation be afforded this consideration.
The Respondent’s SFIC stresses simply that FJTB’s principal offending ‘is abhorrent to the Australian community’. It is contended that the expectation is engaged and should weigh heavily against revocation.
Among citations provided in the Applicant’s SFIC are the observations of Stewart J in FYBR v Minister for Home Affairs [2019] FCAFC 185 (at [102]) (dealing with an earlier version of this consideration under Direction No 65). His Honour addresses the question of weight but places it in the context of the character assessment process, and states a decision-maker must determine what is appropriate in the circumstances.
I also note the observation of Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (at [76]) (also in relation to the earlier form of the Direction), that the expectations consideration is ‘inextricably linked to the other primary consideration of protection of the Australian community’.
The Direction provides additional guidance in the opening statement of Principles, including with respect to expectations, which therefore provide some assistance in the context of assigning weight here. While the Principles indicate the expectation weighs against a non-citizen regardless of there being a measurable risk of reoffending (which there is in this case), they also provide for a degree of tolerance, and consideration of countervailing considerations.
FJTB’s offending occurred after he had been in Australia for some years after arriving as a young child. His offending was also attended by some unusual circumstances and, as noted by Dr Zimmerman, can be considered to have been influenced by a cluster of difficult personal conditions. I have, however, found that his offending should be considered very serious.
On balance, I find that this consideration weighs moderately against revocation.
OTHER CONSIDERATIONS
The Direction requires that other considerations be taken into account, which include (but are not limited to):
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)links to the Australian community, including:
(i)strength, nature and duration of ties; and
(ii)impact on Australian business interests.
The other consideration ‘impact on victims’ requires consideration of information on the impact of a revocation decision on the victim and their family members. No such evidence is before me in this matter and accordingly this other consideration weighs neutrally.
I will include below an additional other consideration based on the submissions made on FJTB’s behalf at the hearing.
International non-refoulement obligations
This other consideration is based on the ‘obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm’, arising under the Refugees Convention (the 1951 Convention as amended by the 1967 Protocol), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), and the International Covenant on Civil, and Political Rights and its Second Optional Protocol (ICCPR) (paragraph 9.1(1) of the Direction).
The Direction goes on to state that the Act, ‘particularly the concept of “protection obligations”, reflects the scope of the obligations that Australia is committed to implementing’ and accordingly, decision-makers should follow the tests enunciated in the Act, when considering non-refoulment obligations.
This other consideration also provides (in summary):
(a)decision-makers must carefully weigh any non-refoulment obligation against the seriousness of a non-citizen’s criminal offending, mindful of the fact that an unlawful non-citizen is liable to detention until their removal, which must be as soon as reasonably practicable (paragraph 9.1(2) of the Direction);
(b)the existence of a non-refoulment obligation does not preclude a non-revocation decision, because removal to a country where such obligations might arise does not necessarily result from such a decision, there are discretionary powers available under the Act, and a non-citizen may apply for a protection visa in which case they would not be liable for removal during determination of this application (paragraph 9.1(3) of the Direction);
(c)it may not be possible to consider non-refoulement obligations in the same level of detail as they are considered in a protection visa application, but in an appropriate case a decision-maker may assume in the non-citizen’s favour that the claimed harm will occur (paragraph 9.1(6) of the Direction); and
(d)where a protection visa application is made, claims in relation to non-refoulement will be considered before character or security concerns (paragraph 9.1(7) of the Direction).
In addition to the evidence given by FJTB at the hearing, I note his written statement also addressed his fears of return to South Sudan. These are briefly stated and raise issues that are already included in the summary of evidence above from both FJTB and other witnesses.
In the Applicant’s written submissions the following points are raised in respect of non-refoulement (in summary): that such obligations are owed in this case being the risk of significant harm including death; they should have determinative weight; there is a prospect of indefinite detention, including on the basis of recent changes to s 197C of the Act; FJTB was settled in Australia as a refugee and has not lost this status; and, breach of the obligations owed would have significant adverse consequences for Australia.
Further specific submissions were made in response to contentions raised on the Respondent’s behalf, including: the potential of a protection visa application does not affect the weight to be afforded non-refoulement obligations; the prospect of indefinite detention cannot be negated by a protection visa application; any breach of international law arising from FJTB’s return would not form part of a protection visa determination; there is a qualitative difference between the consideration of non-refoulement under the Direction and under the Act; and, Australian Government data indicates that the successful grant of a further visa to FJTB is extremely unlikely.
These written submissions are supported by extensive additional material lodged on FJTB’s behalf. Country information is summarised in these submissions in support of these specific grounds. In summary these submissions state:
(a)FJTB faces a real risk of harm, being one that is more than remote, far-fetched or fanciful;
(b)the following specific grounds under this consideration arise under the Refugee Convention from FJTB’s membership of particular social groups:
(i)South Sudanese who have spent many years out of the country including in the West;
(ii)persons who are perceived as wealthy;
(iii)those who are perceived as educated and elite;
(iv)persons regarded as mentally ill; and
(v)on the basis of his lack of meaningful connection with or support from a majority clan, being Dinka;
(c)there is a general risk of torture on return to South Sudan, as well as specific reasons arising under several of the grounds immediately above;
(d)there is a general risk of serious harm on return to South Sudan and, in addition, several of the grounds immediately above also aggravate FJTB’s risk of torture, being killed, subjected to cruel, inhuman or degrading treatment or punishment or being unlawfully deprived of his right to liberty; and
(e)FJTB faces challenges in seeking to internally relocate within South Sudan.
At the hearing it was also submitted that the concept of protection obligations in the Act does not encompass the entirety of Australia’s international law obligations. To the extent that claims made in written submissions on the Applicant’s behalf may arise from international law, these should be considered as an additional other reason.
On the Respondent’s behalf it was submitted at the hearing that the task for the Tribunal is circumscribed by reference to protection obligations as enunciated in the Act. It was submitted that FJTB’s direct evidence as to harm was limited but supported more generally by that of the community members W2 and W3 as to the circumstances prevailing in South Sudan.
It was contended there was a persistent lack of attention to the circumstances applying in Juba. FJTB would be flown to Juba, and while it was accepted that he faced significant issues on return, they did not rise to the level of a well-founded fear of persecution, or real risk of harm for a complementary protection reason. It was specifically submitted that country information indicates that the authorities are making progress in ensuring safety and security in Juba and its surrounds.
It was submitted in the Respondent’s SFIC in particular that: FJTB is of Dinka ethnicity which is the largest ethnic group in South Sudan and Juba, who are insulated from outbreaks of communal violence elsewhere; while FJTB has limited personal ties, his trade skills and English language ability would assist him if returned to Juba; there is no evidence of forced recruitment to militia groups in Juba; and there is no country information supporting the view that returnees are targeted in South Sudan.
It was submitted that it is open to the Tribunal to find no weight should be afforded this other consideration, but to consider addressing grounds raised as an additional other consideration based on a lower threshold of harm on return. If so, then the Tribunal might consider that the risk of general criminality in Juba may lead to some weight in favour of revocation.
On the Respondent’s behalf it was submitted that if weight was to be assigned to non-refoulement in favour of revocation, then in determining what weight should be assigned, consideration should be given to the likelihood FJTB would apply for a protection visa. In these circumstances he would remain in detention, and there were a number of possible outcomes as specified in the Direction.
It was further submitted that indefinite detention may be a possibility should FJTB be found to be owed non-refoulment obligations but not be granted a protection visa. The Respondent acknowledged the mental health consequences of such an outcome, and that the prospect of indefinite detention might also fall for consideration as an additional other consideration.
Consideration and finding
With respect to the foundational claims in this matter, I do not consider that FJTB has a well-developed sense of the nature of the grounds advanced on his behalf. His reference in evidence to the experience of a ‘friend’ was relatively generalised, and his own key priority relates to personal and lifestyle issues. However, I accept that detailed and well-articulated representations have been made on his behalf, and that these should form the basis of considerations here.
The Direction requires that deliberations under this other consideration be based on protection obligations found in the Act. In respect of refugee protection, the Act identifies forms of ‘serious harm’ in s 5J(5), relating to the identification of a well-founded fear of persecution. Several forms of serious physical harm are specified, including threat to life. In respect of wellbeing more broadly, there must be a harm of a level preventing a person’s ability to subsist. In respect of complementary protection, the Act identifies a real risk of significant harm with reference to s 36(2A), that is, being subject to arbitrary deprivation of life, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment (defined with reference to extreme humiliation (s 5)).
I note the DFAT Country Information for South Sudan dates back to 2016; I have several more up to date sources in the materials. However, by way of background I note that the current DFAT internet resource, Smartraveller, identifies: fighting and instability across the country and especially in border areas; widespread violent crime, including in Juba, such as kidnapping, murder, shootings and home invasions; a volatile security situation, including in Juba; and, instances of anti-foreigner sentiment.
The most recent United Nations material lodged in this matter is a Report of the Secretary General of June 2021 (SG5) which highlights: an increase in security incidents in a number of regional areas, including based on ethnic divisions and lack of governance; subnational conflict has an impact on safety, security and access to livelihoods and basic services; South Sudan is facing the highest levels of food insecurity since independence, affecting 60% of the population; and there are 3.82m displaced persons, both internally and externally (which I note appears to be approximately one quarter of the nation’s population).
A comprehensive report on the human rights situation lodged on FJTB’s behalf from February 2021 (‘Detailed findings of the Commission on Human Rights in South Sudan’) identifies the following: a volatile security situation and localised conflict largely as described above; clear challenges to democratic freedoms and political expression; a high incidence of forced disappearances associated with both ethnic and political association; and impunity for gross violations of human rights.

Other sources are cited in the Applicant’s written submission for: forced militia recruitment; road ambushes by unidentified groups; anti-foreigner sentiment associated with COVID-19; and, severe impact to the economy following COVID-19 exacerbating already existing vulnerabilities.
The parties differ on whether FJTB maintains refugee status by virtue of his prior visa category. The matter appears to be resolved by reference to AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105 (at [67]–[68]) where it is observed that, in that case, the individual obtained the same subclass of visa as FJTB by virtue of a parent fulfilling refugee criteria. I conclude therefore that refugee-related protection obligations in this matter need to be considered in respect of FJTB individually.
I note one of the Refugee Convention grounds identified relates to mental health. Based on the evidence before me, I do not understand FJTB to be presently diagnosed with a mental health condition. There may be some risk of his mental health deteriorating were he to be returned to South Sudan, however I do not consider this to give rise to the kind of harm envisaged in this consideration, notwithstanding the limitations on access to the health system identified in the country information found in the Applicant’s written submissions.
Three grounds arising under the Refugee Convention can be summarised as relating to FJTB’s perceived status as a returnee. I am unable to see any substantial independent support in country information relating to this proposition. Here I distinguish between the raised ground of FJTB as a returnee and the country information raising anti-foreigner issues. I accept that there is evidence before me that this may be a real-world problem, but as there is little substantiation, I will consider this further under the consideration ‘Extent of impediments if returned.’
FJTB’s status as a member of the Dinka ethnicity is also raised as a ground. The country information speaks in terms of localised ethnicity-based violence, and there appears to be a possibility that FJTB may become involved, were he to be in a region suffering such conflict. The Respondent contends however that he would be returned to Juba. This ground is founded largely on the basis that FJTB will be isolated from fellow Dinka due to his lack of communal connections and lack of linguistic ability, therefore making him vulnerable. I do not consider the harm identified to rise to the level contemplated in the Direction.
With respect to the harms arising under the CAT and ICCPR, I have already determined that there is not a strong evidence base for the claim that FJTB would be targeted as a returnee. I am also unable to see from the material before me how the harm identified rises to the level of significant harm as expressed in the Act. I note further that under s 36(2B)(c) of the Act the real risk of harm is one that must be faced by the non-citizen personally and not simply one faced by the general population. I am not satisfied on the evidence overall that the circumstances FJTB may face in Juba, given his circumstances, render him more vulnerable than the general population in respect of the grounds identified.
Accordingly, I am unable to find that weight should be given to non-refoulement obligations in favour of revocation. In making this finding, I am aware that FJTB is in a position to make a protection visa application during which his claims may be more fully examined. I also understand there are a range of possible outcomes, including prolonged detention.
I will return to the substance of the claims advanced on FJTB’s behalf below in considering conditions in South Sudan as an additional other consideration. I will also deal with elements of these claims in the next section.
Extent of impediments if removed
Under this consideration decision-makers must consider the extent of any impediments faced by a returning non-citizen ‘in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country) (paragraph 9.2(1) of the Direction). This deliberation must take into account: the non-citizen’s age and health; any substantial language or cultural barriers; and any social, medical and/or economic support available to them.
The Applicant’s written submissions describe the impediments in FJTB’s case to be ‘insurmountable’, noting they overlap with issues identified in relation to non-refoulment obligations. In addition to highlighting the dire social and economic situation in South Sudan, it is also submitted that return would have a negative impact on FJTB’s mental health.
Submissions on FJTB’s behalf at the hearing identified the language and cultural barrier he faces, despite his Dinka ethnicity, and there was no meaningful prospect of employment, which would be further affected by his Australian criminal record.
On the Respondent’s behalf it was submitted that FJTB is young, in good health, and a member of a majority ethnicity. As noted above, it was also submitted his work experience and English language ability should be an asset to him. However, submissions also highlight the poor security and economic situation in South Sudan. It is submitted that substantial weight might be given to this impediments consideration.
Evidence at the hearing, particularly that of W3, provided an insight into the practical difficulties faced by a visitor to South Sudan, even one of a local ethnicity. His evidence also cast some doubt on the value of English language skills.
Equally significant, however, is the extensive country information, set out briefly above, and identified by the parties in their submissions on this consideration.
These factors must be read in the context of FJTB’s individual situation which while carrying positives (particularly his age, health, and general employability) also carries vulnerabilities. His principal vulnerability is that he grew up in Australia and has no immediate capacity to integrate into South Sudan. Moreover, these vulnerabilities are amplified in the present security and economic situation.
Accordingly, I am satisfied that this consideration weighs strongly in favour of revocation.
Links to the Australian community
The strength, nature and duration of ties to Australia
Under this other consideration decision-makers must consider any impact of the decision on the non-citizen’s immediate family members where they are citizens, permanent residents or have a right to remain in Australia indefinitely (paragraph 9.4.1(1) of the Direction).
Consideration must also be given to the strength, nature and duration of any other ties the non-citizen has to the Australian community, having regard to:
(a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
In FJTB’s written submissions it is submitted that all of FJTB’s family are in Australia, he has education and employment ties here, and that there is evidence of social and community ties, being supports in place pending his release. It is submitted that this consideration be given heavy weight in FJTB’s favour and in fact rises to the level of a primary consideration.
It is submitted in the Respondent’s SFIC that FJTB has spent a substantial amount of his life in Australia but that a quarter of this time has been in custody. It is also submitted that his family members would suffer distress were he to be deported and it is noted that FJTB has been a breadwinner. At the hearing it was submitted that significant weight be given in favour of revocation under this limb of the consideration.
Evidence in this matter did not attend directly to resolution of the question of the immigration status of FJTB’s family. I note that statements lodged in respect of the original revocation decision assert that his family members have either citizenship or the right to permanently reside in Australia (G10–G13). FJTB’s personal circumstances form (G8) lists his younger sisters and niece as Australian citizens. I also understand the class of visa that FJTB possessed to provide permanent residence and, accordingly, I proceed on the assumption that his other immediate family have the right to permanently reside here.
I accept that FJTB considers himself to be Australian and the evidence demonstrates that the entirety of his social and family ties are to Australia. He arrived in Australia as a young child and his offending occurred during his late teen years. The precise duration of FJTB’s role as breadwinner is not specified in the evidence but I accept it was a substantial personal commitment. It comprised not only of support to his immediate family but also a period of some years in part- and full-time work, as well as attainment of trade skills and qualifications.
Overall, I find that this consideration weighs strongly in favour of revocation.
Impact on Australian business interests
Under this limb, consideration should generally only be given to the impact of non-revocation on business interests where it ‘would significantly compromise the delivery of a major project, or delivery of an important service in Australia’ (paragraph 9.4.2(3) of the Direction).
It is submitted in the Applicant’s SFIC and Reply that carpentry is an important service and that W1 has stated that it is difficult to find employees, and the consideration should therefore be assigned weight in favour of revocation.
The Respondent has submitted that the consideration be given no weight.
I accept that there may be circumstances in which this consideration might be engaged outside of the stated fields of its general application. However, I do not consider the evidence to demonstrate that FJTB’s relatively brief participation in local industry, nor the offer of employment in the future, to rise to such a level.
Accordingly, I find that this limb of this consideration weighs neutrally.
Additional other consideration
As noted above, it was contended on FJTB’s behalf that certain claims arising in respect of the other consideration, International non-refoulment obligations, should form the basis of a further independent consideration.
I also noted above that it is appropriate to address FJTB’s claims of harm further given the nature of the conditions in South Sudan described in material lodged.
There is adequate and reliable country information to indicate that FJTB faces return to an unstable and unsafe country. His particular personal vulnerabilities have been identified under the non-refoulement and extent of impediments considerations. I accept the Respondent’s contention that FJTB would be returned to Juba, but the generalised risks identified in country information apply in that location.
I have found that FJTB has limited capacity to immediately and safely integrate upon return to South Sudan. For this reason, I find that FJTB faces particular vulnerability to crime, economic instability, and social and political unrest.
Accordingly, I find that this additional other consideration weighs in favour of revocation.
CONCLUSION
Of the Primary considerations I have found that Protection of the Australian community weighs strongly against revocation, and Expectations of the Australian community weighs moderately against revocation. I have found that Best interests of minor children affected by the decision weighs very strongly for revocation. I found that Family violence weighs neutrally.
Of the Other considerations I have found that Extent of impediments if removed and Links to the Australian community weigh strongly in favour of revocation, and that an additional other consideration weighs in favour of revocation. I found that International non-refoulment obligations weighs neutrally.
The Direction provides information and evidence from independent and authoritative sources should be given appropriate weight, Primary considerations should generally be given greater weight than other considerations, and one or more primary considerations may outweigh other primary considerations (paragraph 7).
I have noted above the uncertainties attended upon FJTB’s plan for family reunification. Nonetheless, I have assigned significant weight to the consideration of the best interests of minor children. I did so with the benefit of direct evidence from community members who not only know the family well, and its particular difficulties, but also bear independent and valuable professional skills individually.
While I have also assigned significant weight to the protection of the Australian community, I also have noted the independent professional judgment as to FJTB’s low risk of reoffending. In evidence at the hearing this professional judgment was adjusted in accordance with other evidence addressing factors that further mitigate the likelihood of FJTB reoffending.
I consider it appropriate to place additional weight in this instance on the primary consideration best interests of minor children affected by the decision given the particular circumstances of FJTB’s family. Noting too that those circumstances, on the evidence, were continuing to evolve for the worse at the time the matter was before the Tribunal, and there is presently no family member in a parental role or with care responsibility.
For these reasons, I find this primary consideration dispositive in enlivening the statutory discretion and, accordingly, I find that there is another reason why the mandatory cancellation of FJTB’s visa should be revoked.
DECISION
For the reasons given above, the Tribunal decides to set aside the decision of the Respondent dated 8 July 2021 not to revoke the mandatory cancellation of the Applicant’s Global Special Humanitarian (Class XB) (Subclass 200) Refugee (Permanent) visa under s 501CA(4) of the Migration Act 1958 (the Act) and substitutes it with the decision that the mandatory cancellation is revoked as there is another reason pursuant to s 501(4)(b)(ii) of the Act.

I certify that the preceding 240 (two hundred and forty -two) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member

..[sgd]....................................................................
Associate
Dated: 7 October 2021

Dates of hearing: 16–17 September 2021

Counsel for the Applicant: Julian R Murphy

Solicitors for the Applicant: Refugee Legal

Advocate for the Respondent: David Brown

Solicitors for the Respondent: Australian Government Solicitor

[2021] AATA 3576

7 October 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies

Jurisdiction

Dates of hearing:	16–17 September 2021
Counsel for the Applicant:	Julian R Murphy
Solicitors for the Applicant:	Refugee Legal
Advocate for the Respondent:	David Brown
Solicitors for the Respondent:	Australian Government Solicitor